Research › Search › Judgment

Gauhati High Court · body

2020 DIGILAW 745 (GAU)

Abul Kalam Rasheed Alam v. State Of Assam

2020-11-09

MIR ALFAZ ALI, N.KOTISWAR SINGH

body2020
JUDGMENT Mir Alfaz Ali, J. - Challenge in this revision petition is to the order dated 06-07-2019 passed by the learned Sessions Judge, Goalpara in Sessions Case No. 124/2016, whereby, charges u/s 120(B)/302 IPC read with Section 25 (1-A)/27 of the Arms Act were framed against the present petitioner. 2. Brief facts of the case, which may be relevant for disposal of this revision petition are that police registered Goalpara P.S. Case No. 195/2001 u/s 120(B)/302 IPC read with Section 25 (1-A)/27 of the Arms Act, on the basis of an FIR lodged by Sri Keshab Ranjan Nath, the father of the victim. It was alleged in the FIR that when his son (the victim) was coming out from the college, some unknown miscreants shot at him. Later on, he succumbed to the bullet injury. Upon completion of the investigation, charge-sheet was laid against seven accused persons including the present petitioner. Offence being triable exclusively by the court of sessions, learned Magistrate committed the case to the court of sessions. Learned sessions judge framed charges against five accused persons including the present petitioner by order dated 06-10-2019, which is impugned in this revision. 3. Heard Mr. B.D. Konwar, learned senior counsel appearing for the revision petitioner and Mr. B.B. Gogoi, learned Addl. Public Prosecutor for the respondents. 4. Learned senior counsel, Mr. BD Konwar assailing the impugned order, submits that no material was placed on record to justify the framing of charge u/s 302/120(B) IPC as well as under Section 25 (1-A)/27 of the Arms Act against the revision petitioner. Learned Addl. P.P., however, contends that in order to frame charge, a strong suspicion is sufficient and detailed documentation of the materials constituting the offence alleged is not necessary. 5. Before adverting to the claim of the parties and the submission made on their behalf, it shall be useful to refer to Section 227 and 228 of the Code of Criminal Procedure, which are reproduced below :- "227. Discharge. If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing. 228. Framing of charge. Discharge. If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing. 228. Framing of charge. (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, and thereupon the Chief Judicial Magistrate shall try the offence in accordance with the procedure for the trial of warrant- cases instituted on a police report; (b) is exclusively triable 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 charge 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. Perusal of the provision of Section 227 and 228 CrPC, makes it clear, that if, upon consideration of the record of the case and the documents submitted therewith and after hearing the accused and the prosecution, the Judge considers that there is no sufficient ground for proceeding against the accused, the Judge shall discharge the accused recording reason. If, after such consideration of the record and documents and hearing the accused as well as the prosecution, the court is of the opinion that there is sufficient ground for presuming that the accused has committed the offence, it is free to frame charge. 7. The scope of Section 227 CrPC came to be considered before the Supreme Court in Union of India Vs. Prafulla Kumar Samal, (1979) 3 SCC 4 . The Apex Court after adverting to various decisions enumerated the following principles : "(i) The Judge while considering the question of framing the charges under Section 227 of the Cr.P.C. has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. The test to determine prima facie case would depend upon the facts of each case. (ii) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained, the Court will be fully justified in framing a charge and proceeding with the trial. (iii) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large, however, if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused. (iv) That in exercising his jurisdiction under Section 227 of the Code, the Judge which under the present Code is a senior and experienced Court cannot act merely as a post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however, does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial." 8. In Sajjan Kumar Vs. CBI,2010 9 SCC 638, the Supreme Court while considering the scope of Sections 227 and 228 of the CrPC held in paragraph 21 as follows :- "21. On consideration of the authorities about the scope of Sections 227 and 228 of the Code, the following principles emerge : (i) The Judge while considering the question of framing the charges under Section 227 of the Cr.P.C. has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. The test to determine prima facie case would depend upon the facts of each case. ii) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained, the Court will be fully justified in framing a charge and proceeding with the trial. The test to determine prima facie case would depend upon the facts of each case. ii) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained, the Court will be fully justified in framing a charge and proceeding with the trial. iii) The Court cannot act merely as a Post Office or a mouthpiece of the prosecution but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities etc. However, at this stage, there cannot be a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial. iv) If on the basis of the material on record, the Court could form an opinion that the accused might have committed offence, it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence. v) At the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing a charge the Court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible. vi) At the stage of Sections 227 and 228, the Court is required to evaluate the material and documents on record with a view to find out if the facts emerging therefrom taken at their face value discloses the existence of all the ingredients constituting the alleged offence. For this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case. vii) If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage, he is not to see whether the trial will end in conviction or acquittal" 9. In the light of the above principles we shall examine the case in hand. Learned senior counsel Mr. In the light of the above principles we shall examine the case in hand. Learned senior counsel Mr. Konwar for the revision petitioner referred to the observation of the learned trial court to submit, that there was no material to frame charge against the petitioner and that the impugned order has suffered from the vice of perversity. The relevant portion of the observation of the learned trial court is as follows : " The materials and the statement of the witnesses reveals that none of the witnesses have stated anything regarding involvement of any of the accused persons in the alleged incident but the angle of conspiracy is a factor which can come to light during the trial of the case as same may not be visible from the statements recorded by I/O u/s 161 CrPC. During trial of the case and examination of the witnesses, the involvement of the accused about conspiracy can be revealed./ Therefore, I find sufficient materials to go into the trial of this case against all the accused persons. Accordingly, the charges u/s 120/302 of IPC read with Section 25(1-A)/27 of the Arms Act are framed against the accused persons. The contents of the charges are read over and explained, to which, the accused persons pleaded not guilty and claimed to be tried." 10. Apparently the learned trial court recorded a conclusive finding in the impugned order that none of the witness had stated anything regarding involvement of any accused person in the alleged offence. The trial court further recorded that the angle of conspiracy was also not visible from the statement recorded by the IO. After recording such a categorical finding upon consideration of the record, the learned trial court ought not to have framed charge against the against the petitioner, in view of Section 227 of the Code, which clearly mandated that if upon consideration of record of the case and documents submitted therewith and hearing the parties, the court considers that there is no sufficient ground for proceeding, he shall discharge the accused. 11. The expression "upon consideration of the record of the case and documents submitted therewith" makes it abundantly clear that in order to take a decision either to frame charge or to record an order of discharge, the court is obliged to act upon the materials available on record. In Chitresh Kumar Vs. 11. The expression "upon consideration of the record of the case and documents submitted therewith" makes it abundantly clear that in order to take a decision either to frame charge or to record an order of discharge, the court is obliged to act upon the materials available on record. In Chitresh Kumar Vs. State (NCT of Delhi), (2009) 16 SCC 605 , the Supreme Court observed that the word " presume" means if on the basis of materials on record, court could come to the conclusion that commission of offence is a probable consequence, a case for framing charge exists. It goes without saying, that in order to form a presumptive opinion as to existence of factual ingredients constituting the offence, for the purpose of taking a decision whether to frame a charge or not, the court is required to go by the face value of the materials on record and need not examine their probative value, though, shifting of the evidence and materials for limited purpose is permissible. If there is no material on record and the court considers that there is no sufficient ground for proceeding against the accused, as per mandate of Section 227 CrPC, court should discharge the accused. Charge cannot be framed in anticipation, that some materials may come up in future during the course of trial to support the charge proposed to be framed. The court is expected to take a pragmatic approach and to apply the judicial mind while considering the issue of framing charge, inasmuch as, framing of charge mechanically in a routine manner without any material on record not only put an innocent person to trial, but also result in wasting the valuable time of the court in a futile exercise. 12. In Niranjan Karam Singh Vs. Jitentra Bhim Raj,1994 4 SCC 76, the Apex Court held that u/s 227 a duty is cast on the judge to apply his mind to the materials on record and if on examination of the record, he does not find sufficient ground for proceeding against the accused, he must discharge him. On the other hand, if after such consideration and hearing, he is satisfied that a prima facie case is made out against the accused, he must proceed to frame charge as required u/s 228 CrPC. 13. In State of Orissa Vs. On the other hand, if after such consideration and hearing, he is satisfied that a prima facie case is made out against the accused, he must proceed to frame charge as required u/s 228 CrPC. 13. In State of Orissa Vs. Debendranath Padi, (2005) 1 SCC 568 , the Apex Court held that the expression, "hearing the submission of the accused" means hearing the submission of the accused on the record of the case and documents filed by the prosecution. 14. For our satisfaction, we have perused the record of the case. Upon careful perusal of the record of the case, we find that no incriminating material could be placed on record by the prosecution to show, even a remotest link of the petitioner with the offences alleged. We are therefore, of the opinion, that not to speak of a strong suspicion or a prima facie case against the petitioner indeed, prosecution even has not been able to throw any suspicion. When admittedly there was no material even to form a presumptive opinion as to prima facie case, framing of charge in anticipation, that the evidence and materials may come up in future, during the course of trial cannot be justified. 15. In view of the above, we are constrained to hold that no prima facie case could be made out to frame charge against the revision petitioner. Therefore, in our considered opinion, the impugned order framing charge against the petitioner dehors any material on record is not sustainable. Accordingly, we set aside the impugned order to the extent of framing charge against the revision petitioner. 16. Revision petition accordingly stands allowed.