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2018 DIGILAW 499 (GAU)

Azizul Ali v. State of Assam

2018-03-22

AJIT BORTHAKUR

body2018
JUDGMENT : 1. By this petition under section 401 read with sections 397 and 482, Cr.PC, the petitioner, namely, Md. Azizul Ali, who is arrayed as an accused in Sessions Case No. 21 (DM)/2017 (corresponding to Sipajhar P.S. Case No. 774/2015), has prayed for setting aside and quashing of the order, dated 19.5.2017, whereby charges under section 366/497, IPC have been framed against him. 2. Heard Mr. S.K. Mahammad, learned counsel for the petitioner and Mr. B. Gogoi, learned Addl. Public Prosecutor, appearing for the State Respondent No. 1. Perused record. 3. Mr. S.K. Mahammad, learned counsel for the petitioner, submits that the learned Sessions Judge, Darrang at Mangaldoi, without considering the fact of non-availability of any prima fade material on the case diary against the accused/petitioner has framed the charges aforementioned against him. Mr. Mahammad submits that the victim woman in her statement, recorded under section 161, Cr.PC did not implicate the accused/petitioner with the alleged offences, with which he has been charged. 4. Mr. B. Gogoi, learned Addl. Public Prosecutor submits that the learned Sessions Judge, after having considered the entire material available on record and having found prima facie incriminating material, framed the charges aforementioned against the accused/petitioner and, therefore, the impugned order, dated 15.9.2017, cannot be set aside and quashed as prayed. 5. It may be mentioned that section 228, Cr.PC contains the provision for the Sessions Judge to frame the charges, when he does not discharge the accused under section 227, Cr.PC. Provisions of section 228, Cr.PC read as follows: “(1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which— (a) is not exclusively triable by the Court of Session, he may, frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate, or any other Judicial Magistrate of the First Class and direct the accused to appear before the Chief Judicial Magistrate, or, as the case may be, the Judicial Magistrate of the First Class, on such that as he deems fit, and thereupon such Magistrate shall try the offence in accordance with the procedure for the trial of warrant cases instituted on a police report; (b) is exclusively trial by the court, he shall frame in writing a charge against the accused. (2) Where the Judge frames any charge under clause (b) of sub-section (1), the charges shall be read and explained to the accused and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried.” 6. At the stage of consideration of charge, the Sessions Judge is not to meticulously judge the truth, veracity or effect of the evidence, which the Public Prosecutor proposes to adduce nor the weight to be attached to probable defence of the accused. In other words, the Sessions Judge at that stage is not to see whether there is sufficient ground for conviction, but to see, if there is sufficient ground for proceeding. What is required at this stage is that the Sessions Judge should consider judicially whether on consideration of the materials on record it can be said that the accused has been reasonably connected with the alleged offences and that on the basis of the said materials there is reasonable probability or chance of the accused being found guilty of the charges. Suffice it to say that while considering the framing of the charges, the Sessions Judge is to sift and weigh the evidence for the limited purpose of finding out prima facie case. In this regard, sections 227 and 228, Cr.PC are to be read together. Section 227, Cr.PC is applicable, when there is no material to frame charges against the accused and in that case, the court has no option, but to discharge the accused. But if there is prima-facie incriminating evidence, the court shall frame charges against him, under section 228, Cr.PC. 7. Perusal of the FIR, dated 6.12.2015, and the statements of the witnesses, recorded under section 161, Cr.PC., it appears that the victim woman is married to the informant and except her statement, who has a strain relation with her husband, there is prima facie ground, as a whole, to believe that the accused committed the alleged offences. In such a case, there is sufficient ground for proceeding with the trial, under the aforesaid charges against the accused-petitioner. Consequently, the charges cannot be quashed. 8. Accordingly, the petition stands dismissed. 9. The interim order, dated 12.6.2017, stands vacated. Send back the LCR along with a copy of this order.