Santosh Kumari Vs State of Jammu and Kashmir and Others -13/09/2011

SUPREME COURT OF INDIA JUDGMENTS

The object of the charge is to give the accused notice of the matter he is charged with and does not touch jurisdiction. If, therefore, the necessary information is conveyed to him in other ways and there is no prejudice, the framing of the charge is not invalidated. The essential part of this part of law is not any technical formula of words but the reality, whether the matter was explained to the accused and whether he understood what he was being tried for. Sections 34, 114 and 149 of the IPC provide for criminal liability viewed from different angles as regards actual participants, accessories and men actuated by a common object or a common intention; and as explained by five Judge Constitution Bench of this Court in Willie Slavey v. The State of M.P., (1955) 2 SCR 1140 at p. 1189, the charge is a rolled-up one involving the direct liability and the constructive liability without specifying who are directly liable and who are sought to be made constructively liable.

JT 2011 (10) SC 271 : (2011) 10 SCALE 379


(SUPREME COURT OF INDIA)

Santosh Kumari Vs State of Jammu and Kashmir and Others 

(Before : J.M. Panchal and H.L. Gokhle, JJ.)

Criminal Appeal Nos. 1660-1662 of 2011 (Arising out of S.L.P. (Criminal) Nos. 751-753 of 2011) : Decided On: 13-09-2011

Counsel for the Parties:

Nitin Sangra and Hemantika Wahi, Advs.

R.P. Bhatt, Sr. Adv., Bimal Roy Jad, Vikram Rathore, Sunil Fernandes, Suhaas Joshi, Astha Sharma and Yawar Masoodi, Advs.

JUDGMENT

J.M. Panchal, J—The Appellant is the widow of late Mr. Surinder Singh, who was murdered at about 9:00PM on June 28, 2007. Criminal Appeal No. 1660/2011 is directed against judgment dated October 20, 2010 rendered by the learned Single Judge of High Court of Jammu and Kashmir at Jammu in Criminal Revision No. 29 of 2008 by which the order dated March 24, 2008 passed by the learned Additional Sessions Judge, Kathua framing charges under Sections 302, 109, 147, 148 read with Section 149 of Ranbir Penal Code against Respondent Nos. 3 to 7 is set aside and the matter is remanded to the learned Judge, Samba to consider the case in terms of Sections 267, 268 and 269 of the Code of Criminal Procedure, 1989 (1933 A.D.) (as applicable in the State of Jammu and Kashmir). Criminal Appeal No. 1661 of 2011 is directed against order dated October 20, 2010 passed by the learned Single Judge of High Court of Jammu and Kashmir at Jammu in 561-A Code of Criminal Procedure No. 54 of 2009 by which prayer made by the Respondent of the present appeal to quash order dated March 24, 2008 passed by the learned Additional Sessions Judge, Kathua in a Criminal Challan being File No. 33 of 2007 titled as State v. Subhash Singh and Others framing charge against him for commission of offences under Sections 302, 109, 147, 148 read with 149 of Ranbir Penal Code, is allowed. Criminal Appeal No. 1662 of 2011 is directed against judgment dated October 20, 2010 passed by the learned Single Judge of High Court of Jammu and Kashmir at Jammu in Bail Application No. 26 of 2010 by which the Respondent Nos. 3 to 7 have been released on interim bail pending trial against the Respondents for above mentioned offences. As the three appeals arise out of common judgment and order dated October 20, 2010 rendered by the learned Single Judge of High Court of Jammu and Kashmir in Criminal Revision No. 29 of 2008, petition filed under Section 561-A Code of Criminal Procedure No. 54 of 2009 and Bail Application No. 26 of 2010, this Court proposes to dispose of them by this common judgment.

2. The case of the prosecution is that Respondent Nos. 3 to 8 in criminal appeal No. 1660 of 2011 formed a lawful assembly on 29-06-2007, common object of which was to murder Surinder Singh and in prosecution of the common object of the said assembly, Respondents Nos. 3 to 8 mounted a murderous assault on Surinder Singh, husband of the Appellant, at village Sanoora, District Samba (J & K). The injured was immediately shifted to hospital for treatment. On the basis of the information given by the Appellant, FIR No. 113/2007 under Section 307 read with 109 of Ranbir Penal Code was registered at police station Hiranagar, in connection with the aforesaid incident on June 29, 2007. On July 2, 2007 injured Surinder Singh succumbed to his injuries in Military Hospital, Satwari, and Jammu and, therefore, offence punishable under Section 302 of Ranbir Penal Code was added. On the basis of FIR lodged by the Appellant, investigation was undertaken. During the course of investigation statement of the Appellant and other witnesses were recorded under Section 164 of the Code of Criminal Procedure 1989. The dead body of the deceased was sent for postmortem examination. After completion of the investigation, the investigating agency had filed charge sheet in the Court of learned Magistrate for offences punishable under Sections 302, 109, 147, 148, 149 of the Ranbir Penal Code. As the offence punishable under Section 302 is triable exclusively by a Court of Sessions, the case was committed to Sessions Court for trial. The learned Additional Sessions Judge, after hearing the prosecution and the accused on the question of framing charge, framed necessary charge on March 24, 2008 against each accused for the offences punishable under Sections 302, 109, 147, 148, 149 of Ranbir Penal Code.

3. Feeling aggrieved by the framing of above mentioned charges by the trial court on March 24, 2008, the Respondent Nos. 3 to 7 in Criminal Appeal No. 1660 of 2011 preferred Criminal Revision No. 29 of 2008 before the High Court. The High Court by order dated June 6, 2008 issued notice and summoned the record of the case from the trial court. On March 20, 2009, the Respondent No. 8, who is original accused No. 6, preferred a petition No. 54 of 2009 under Section 561-A of the Code of Criminal Procedure to quash order dated March 24, 2008 passed by the trial court framing charges against him for commission of offences punishable under Sections 302, 109, 147, 148 read with 149 of the Ranbir Penal Code. During the pendency of above numbered petitions, the High Court by order dated August 13, 2009 sent back the record to the trial court and granted liberty to the Respondent Nos. 3 to 8 to seek bail from the trial court. When the above numbered Revision and the petition filed under Section 561-A were pending disposal before the High Court, the prosecution examined three eyewitnesses to the occurrence viz. (1) Santosh Kumari, i.e., the Appellant herein, (2) Surishta Devi and (3) Shakti Devi. It may be stated that the Appellant and the Shakti Devi have fully supported the case of the prosecution.

Pursuant to the liberty granted by the High Court vide order dated August 13, 2009, the Respondent Nos. 3 to 8 applied for bail before the trial court. The trial court rejected Bail Application filed by the accused vide order dated February 19, 2010. The record of the case indicates that except accused Iqram, who is Respondent No. 8 in Criminal Appeal No. 1660 of 2011, all the other accused filed Bail Application No. 26 of 2010 before the High Court claiming bail. The High Court by order dated August 10, 2010 directed the learned Counsel for the accused to place on record the deposition of the witnesses recorded by the trial court. On August 13, 2010, Raman Singh, brother of accused Subash Singh, who is Respondent No. 3 in the main appeal, physically assaulted and threatened the son of the Appellant as well as one Kuljit Singh who is one of the witnesses in the case, allegedly in the court premises itself, to refrain them from deposing against the accused in the case. They were also warned that if they gave depositions against the accused they would be killed. Because of the assault mounted by brother of the accused, son of the Appellant has lodged FIR No. 183/2010 under Sections 341, 195-A, 504, 506 of Ranbir Penal Code at Police Station Samba. With reference to above mentioned FIR statement of the son of the Appellant was recorded under Section 164 Code of Criminal Procedure on August 20, 2010.

On September 8, 2010 and October 7, 2010 the prosecution examined two more eye witnesses, i.e., (1) Raksha Devi and (2) Kamlesh Devi who had supported the prosecution case.

4. The High Court by order dated October 20, 2010 has set aside the order dated March 24, 2008 passed by the trial court framing charge against the Respondent Nos. 3 to 8 and has remanded the case to the trial court to consider it in terms of Sections 267, 268 and 269 of the Code of Criminal Procedure 1989. By the said order the High Court has directed release of all the accused persons except accused Subhash, who is Respondent No. 3 in the main appeal, pending consideration of the prosecution case for framing charge by the trial court. The above mentioned order dated October 20, 2010 of the High Court has given rise to the three instant appeals.

5. This Court has heard the learned Counsel for the parties and have considered the documents forming part of the appeals.

6. The provisions relating to framing of charge against the accused before the trial commences, are contained in the Code of Criminal Procedure 1989 (1933 A.D.) which is applicable to the State of Jammu and Kashmir. The statute requires that every charge framed under the said code should state the offence with which the accused is charged and if the law which creates the offence gives it any specific name, the offence should also be described in the charge by that name only. The statute further requires that the law and section of the law against which the offence is said to have been committed has to be mentioned in the charge. It is a fundamental principle of criminal law that the accused should be informed with certainty and accuracy the exact nature of the charge brought against him. The object of the statement of particulars to be mentioned in the charge is to enable the accused person to know the substantive charge, he will have to meet and to be ready for it before the evidence is given. The extent of the particulars necessary to be given in the charge depends upon the facts and the circumstances of each case. It is well-settled law that in drawing up a charge, all verbiage should be avoided. However, a charge should be precise in its scope and particular in its details. The charge has to contain such particulars as to the time and place of the alleged offence and the person against whom it was committed as are reasonably sufficient to give the accused notice of the matter with which he is charged. One of the requirements of law is that when the nature of the case is such that the particulars mentioned in the charge do not give the accused sufficient notice of the matter with which he is charged, the charge should contain such particulars of the manner in which alleged offence was committed as would be sufficient for that purpose. If ‘A’ is accused of the murder of ‘B’ at a given time and place, the charge need not state the manner in which ‘A’ murdered ‘B’.

7. Like all procedural laws, the Code of Criminal Procedure is devised to sub serve the ends of justice and not to frustrate them by mere technicalities. It regards some of its provisions as vital but others not, and a breach of the latter is a curable irregularity unless the accused is prejudiced thereby. It places errors in the charge, or even a total absence of a charge in the curable class. That is why we have provisions like Sections 215 and 464 in the Code of Criminal Procedure, 1973.

The object of the charge is to give the accused notice of the matter he is charged with and does not touch jurisdiction. If, therefore, the necessary information is conveyed to him in other ways and there is no prejudice, the framing of the charge is not invalidated. The essential part of this part of law is not any technical formula of words but the reality, whether the matter was explained to the accused and whether he understood what he was being tried for. Sections 34, 114 and 149 of the IPC provide for criminal liability viewed from different angles as regards actual participants, accessories and men actuated by a common object or a common intention; and as explained by five Judge Constitution Bench of this Court in Willie Slavey v. The State of M.P., (1955) 2 SCR 1140 at p. 1189, the charge is a rolled-up one involving the direct liability and the constructive liability without specifying who are directly liable and who are sought to be made constructively liable.

In the light of above principles, the question whether proper charge was framed against the Respondent Nos. 3 to 8, will have to be viewed.

8. In the present case, what was argued on behalf of the Respondent Nos. 3 to 8 before the High Court was that the charge was invalid because there was no mention in the order of the trial court indicating the specific offence found to have been prima facie committed by one or the other accused individually or jointly nor there was any indication regarding the specific names of the offences sufficient for description in the order of framing charge, but only sections of the law against which the offences were found to have been committed were mentioned.

The High Court has held that mere mention of the sections of the law in the order framing the charge would not, serve the purpose of law, as it was likely to prejudice the accused in his trial, and that, the accused would be disabled to know the exact Charge he had to face. In view of the above mentioned conclusion, the High Court has set aside the order dated March 24, 2008 framing charge against the accused and has remanded the matter to the trial court to consider the case in terms of Sections 267, 268 and 269 of the Code of Criminal Procedure 1989 which are pari materia to Sections 226, 227 and 228 of the Code of Criminal Procedure 1973.

9. In order to ascertain whether the Charge framed against Respondent was proper or not, this Court proposes to reproduce order dated March 24, 2008 framing charge against Rajesh Singh son of Jagdish Singh, resident of Sanoora, tehsil Hiranagar, which reads as under:

IN THE COURT OF ADDL. SESSIONS JUDGE

KATHUA

I, Vinod Chatterji Koul hereby charge you, Rajesh Singh S/o Jagdish Singh R/o Sanoora, tehsil Hiranagar as under:

1. That on 28.6.07 at Sanoora at about 9.30 pm with criminal intention along with other accused persons, having common criminal object armed with lathies (sticks) committed rioting and in that attacked deceased Surinder Singh with an intention to murder him attacked and injured him seriously, who thereafter on 2nd July 2007 during treatment succumbed to his injuries at Medical College Jammu, and you thereby committed offence punishable Under Section 302/109/147/148/149 of the Ranbir Penal Code and within the cognizance of this Court.

2. And I hereby direct you be tried by this Court on the said charge.

Dated 24.3.08

Sd.

Statement of accused dated 24th March 2008 Rajesh Singh S/o Jagdish Singh R/o Sanoora, tehsil Hiranagar Caste rajput, employee by profession aged?

Question: Whether you have understood the contents of the charge which has been read over and explained to you?

Answer: Yes

Question: Whether you have committed the offence?

Answer: No.

Question: Whether you want to say anything more?

Answer: I am innocent and want trial of the case.

Sd.

It may be mentioned that similar charge has been framed against each accused by order dated March 24, 2008.

A fair and reasonable reading of the above quoted order dated March 24, 2008 makes it abundantly clear that accused Rajesh Singh on June 28, 2007 at Sanoora about about 9.30 pm with criminal intention along with other accused, having common object armed with lathies (sticks) committed rioting. Thus, the charge contains particulars as to the time, place and date of the offence of rioting. The law which creates the offence gives it specific name, i.e., “rioting” and, therefore, the offence is described in the charge by that name, namely, “rioting”. The charge further proceeds to state that while committing rioting accused Rajesh Singh and other assaulted deceased Surinder Singh with an intention to murder him and injured him seriously. Thus the name of person with reference to whom common criminal object was formed by the members of the unlawful assembly was stated. It was also stated in the Charge that during the treatment injured Surinder Singh had succumbed to his injuries on July 2, 2007 at Medical College, Jammu. Thus the date on which the deceased succumbed to this injuries and the place where the deceased succumbed to his injuries were mentioned with precision. Finally in the Charge, it was mentioned that accused Rajesh Singh had committed offences punishable under Sections 302, 109, 147, 148, 149 of the Ranbir Penal code. After framing Charge immediately the plea of accused Rajesh was recorded. The first question which asked to him was whether he had understood the contents of the Charge which was read and explained to him. In answer to the said question accused Rajesh Singh had answered in affirmative. The record shows that thereafter two questions were put to accused Rajesh Singh in answer to which he had claimed that he was innocent and had wished to be tried.

10. This is not a case of mere mention of the sections of the law in the charge or the order of framing charge. Therefore, the High Court was not justified in observing that mere mention of the sections of the law in the charge was likely to prejudice the accused in his trial and that he would be disabled to know the exact charge he had to face, nor the High court was justified in observing that the trial court was not alive to the provisions of Chapter XIX of the Code of Criminal Procedure. It is necessary to reproduce part of the order passed by the trial court which is relied upon by the High Court for the purpose of coming to the conclusion that mere mention of the sections of the law in the charge or the order framing charge, would not serve the purpose of the law. The said order reads as under:

Upon consideration of the arguments of the learned Public Prosecutor, the learned Counsel for the accused and the written arguments besides the judgments cited and also the statements of the witnesses recorded by the police and other connected documents on the file, I am of the considered opinion that there are reasonable grounds to presume that accused Subash Singh S/o Krishen Singh, Rajesh Singh S/o Jagdish Singh, Vijay Singh S/o Krishen Singh, Ranjit Singh S/o Baldev Singh, Rakesh Singh S/o Jagdish Singh and Ikram Singh S/o Neter Singh caste Rajput residents of Sonoora Tehsil Hiranagar have prima facie committed offences punishable under Sections 302/109/147/148 and 149 IPC. Offence punishable under Section 302 IPC is exclusively triable by the court of sessions.

Charges under Sections 302/109/147/148 and 149 IPC is framed against accused Subash Singh, Rajesh Singh, Vijay Singh, Ranjit Singh, Rakesh Singh and Ikram Singh. The contents of the charges framed have been read over and explained to the accused persons who have pleaded not guilty to the said changes and have claimed to be tried.

11. A glance at the order quoted above would reveal that at the stage of framing charge the learned Counsel for the accused had pleaded for discharge of the accused under the relevant provisions of the Code of Criminal Procedure 1989. Not only the learned Counsel for the accused had advanced oral arguments, but he had also submitted written arguments and cited judgments as well as statements of the witnesses recorded by the police and relied upon other connected documents on the file to emphasize that the accused should be discharged. The order of the trial court which is quoted by the High Court in the impugned judgment is not the order framing charge at all. It is a short order indicating that no case was made out by the learned Counsel for the accused for discharging the accused at the stage of framing charge and that the accused should be tried for the offences which were mentioned in the order of framing charge separately against each accused.

12. On the facts and in the circumstances of the case, this Court is of the opinion that a patent error of law apparent on the fact of the record was committed by the High Court in coming to the conclusion that in the order of framing charge there was mere mention of the sections of the law which was likely to prejudice the accused in his trial, as the accused would be disabled to know the exact charge he had to face. Having noticed the charge which was separately framed against each accused, the inevitable conclusion to be reached by this Court is that the High Court erred in law in holding that it was obligatory for the trial court to have indicated in its order and the charge sheet the description of the offences for which one or the other accused had to be tried because all necessary particulars which should be stated as required by law were already stated by the learned Judge of trial court while framing charge.

Further the fact that trial against the accused has/had made considerable progress in as much as material evidence of the eye witnesses to the occurrences was recorded by the trial court could not have been ignored while deciding the question whether proper charge against each accused was framed or not. The nature of charge to be faced was clearly understood by each accused which is evident from the plea recorded by the trial court after framing necessary charge that the nature of charge was very well understood by each accused. The fact is also evident from the averments made in the Revision Petition which was filed by the accused challenging order framing charge. The fact that charge was clearly understood by each accused is also evident from the nature of cross-examination of the eye witnesses made on their behalf by their learned Counsel. In view of the fact that all the eye witnesses have been examined and cross-examined on behalf of the accused, the High Court should have resorted to the provisions of Section 225 of the Code of Criminal Procedure, 1989 as applicable to the State of Jammu and Kashmir which reads as under:

225. Effect of errors: No error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars, shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission, and it has occasioned failure of justice.

The cross-examination of the eye witnesses on behalf of the accused would indicate that none of the accused was in fact misled by so-called error pointed out by the High Court nor it could be successfully pointed out by any of them that so-called error has occasioned failure of justice to him. The remand of the case to trial court for considering the case afresh on the point of charge was not warranted at all, as there is nothing to suggest or indicate even remotely that the accused had or would have been misled by any error or omission in the Charge. Therefore, the order dated October 20, 2010 rendered in Criminal Revision No. 29 of 2008 deserves to be set aside. For the similar reasons the order dated October 20, 2010 passed by the High Court in petition filed under Section 561-A Code of Criminal Procedure No. 54 of 2009 allowing the prayer made by the Respondent No. 8 to quash the order dated March 24, 2008 will have to be set aside.

13. It may be mentioned that the order admitting the accused except accused Sub hash Singh to interim bail of ` 25,000/- each to the satisfaction of the trial court pending consideration of the prosecution case afresh on question of charge, was not warranted nor justified at all. Before granting interim bail to the accused the High Court could not have afforded to ignore the testimony of eye witnesses including that of the Appellant who is wife of the deceased, merely because deceased had received only one injury nor the accused could have been accorded the benefit of temporary bail on the spacious plea that they were facing trial over a period of three years. The record of the case nowhere shows that the prosecution was responsible in any manner at all for so called delay in holding trial against the accused. The fact that accused are involved in commission of a heinous crime like murder which entails death or life imprisonment as punishment should have been taken into consideration before releasing the accused on interim bail. The trial court after having considered the gravity of the offence and the apprehension on the part of the prosecution that the accused would tamper with the evidence in the event of their release on bail had rightly refused to enlarge the accused on bail. The High Court while granting the relief of bail to the accused has completely ignored and over looked the aforementioned relevant factors which weigh heavily against the accused. Moreover, the complaint filed by Vijinder Singh that he and Kuljit singh, who is one of the witnesses in the present case, were physically assaulted and threatened in the Court premises will have to be given its due weight. The FIR registered on August 13, 2010 is pending necessary investigation wherein the statement of Vijinder Singh who is son of the Appellant was recorded on August 20, 2010 under Section 164 Criminal Procedure Code. The contents of the FIR would indicate that the accused either themselves or through their relatives would try to tamper the evidence which is going to be led by the prosecution in the case.

14. Under the Circumstances, this Court is of the opinion that release of the accused except accused Subhash Singh on interim bail deserves to be set aside. The net result of the above discussion is that all the three appeals will have to be allowed.

For the foregoing reasons the three appeals succeed. Order dated October 20, 2010 rendered by the High Court of Jammu and Kashmir at Jammu in Criminal Revision No. 29 of 2008 is hereby set aside. Similarly the order dated October 20, 2010 passed by the High Court in petition filed under Section 561-A Code of Criminal Procedure No. 54 of 2009 is also set aside. The order dated October 20, 2010 passed in Bail Application No. 26 of 2010 by which the accused except accused Subhash Singh are enlarged on interim bail is also set aside. Accused Subhash Singh is already in custody. Therefore, it is directed that the other accused shall be taken in custody immediately.

Having regard to the facts of the case and more particularly the fact that the trial has already commenced, the trial court is directed to complete the trial as early as possible and preferably within 9 months from the date of receipt of writ from this Court. Subject to above-mentioned directions, all the three appeals stand disposed of.


 

 

Exercise of jurisdiction under Sections 227 & 228 of Cr.P.C.

Online Law Library

Supreme Court in Union of India (UOI) Vs. Prafulla Kumar Samal and Another, and Dilawar Balu Kurane Vs. State of Maharashtra, held..

 In Prafulla Kumar Samal (supra), the scope of Section 227 of the Cr.P.C. was considered. After adverting to various decisions, this Court has enumerated the following principles:

(1) That the Judge while considering the question of framing the charges u/s 227 of the Code 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.

(2) 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.

(3) 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.

(4) That in exercising his jurisdiction u/s 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.

In Dilawar Balu Kurane (supra), the principles enunciated in Prafulla Kumar Samal (supra) have been reiterated and it was held:

12. Now the next question is whether a prima facie case has been made out against the appellant. In exercising powers u/s 227 of the Code of Criminal Procedure, the settled position of law is that the Judge while considering the question of framing the charges under the said section 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; 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; by and large 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 justified to discharge the accused, and in exercising jurisdiction u/s 227 of the Code of Criminal Procedure, the Judge 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 but should not make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial (see Union of India v. Prafulla Kumar Samal).

On consideration of the authorities  about the scope of Section 227 and 228 of the Code, the following principles emerge:

(i) The Judge while considering the question of framing the charges u/s 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 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.


Cases Referred

  1. Common Cause, A Registered Society Vs. Union of India and Others, AIR 1999 SC 2979 : (1999) 5 JT 237 : (2000) 1 SCALE 476 : (1999) 4 SCALE 354 : (1998) 4 SCALE 1 : (1999) 6 SCC 667 : (1999) 3 SCR 1279 : (1999) AIRSCW 2899 : (1999) 6 Supreme 425
  2. Dilawar Balu Kurane Vs. State of Maharashtra, AIR 2002 SC 564 : (2002) CriLJ 980 : (2002) 1 Crimes 243 : (2002) 1 JT 6 : (2002) 1 SCALE 47 : (2002) 2 SCC 135 : (2002) 1 SCR 75 : (2002) 1 UJ 269 : (2002) AIRSCW 146 : (2002) 1 Supreme 55
  3. P. Vijayan Vs. State of Kerala and Another, AIR 2010 SC 663 : (2010) CLT 551 : (2010) CriLJ 1427 : (2010) 2 Crimes 1 : (2010) 1 JT 459 : (2010) 1 SCALE 604 : (2010) 2 SCC 398 : (2010) 3 SCR 78 : (2010) 2 UJ 724 : (2010) AIRSCW 886 : (2010) AIRSCW 6302 : (2010) 7 Supreme 271 : (2010) 2 Supreme 199
  4. Vakil Prasad Singh Vs. State of Bihar, AIR 2009 SC 1822 : (2009) CriLJ 1731 : (2009) 2 JT 113 : (2009) 1 SCALE 22 : (2009) 3 SCC 355 : (2009) 2 SCR 517 : (2009) AIRSCW 1418 : (2009) AIRSCW 5022 : (2009) 1 Supreme 514
  5. Union of India (UOI) Vs. Prafulla Kumar Samal and Another, AIR 1979 SC 366 : (1979) CriLJ 154 : (1979) 3 SCC 4 : (1979) SCC(Cri) 609 : (1979) 2 SCR 229
  6. SAJJAN KUMAR Vs. CENTRAL BUREAU OF INVESTIGATION

Whether at the stage of framing of charge, the accused could seek production of documents to prove his innocence.

Answering the question in the negative Supreme Court held:

The law is that at the time of framing charge or taking cognizance the accused has no right to produce any material. No provision in the Code of Criminal procedure, 1973 (for short the ‘Code’) grants to the accused any right to file any material or document at the stage of framing of charge. That right is granted only at the stage of the trial. Satish Mehra case,, (1996) 9 SCC 766 holding that the trial court has powers to consider even materials which the accused may produce at the stage of Section 227 of the Code has not been correctly decided. It is well settled that at the stage of framing of charge the defence of the accused cannot be put forth. The acceptance of the contention of the accused would mean permitting the accused to adduce his defence at the stage of framing of charge and for examination thereof at that stage which is against the criminal jurisprudence.

Minakshi Bala v. Sudhir Kumar and Ors., (1994) 4 SCC 142 where one of the questions that fell for consideration was whether in a revision petition challenging an order framing charges against the accused, the latter could rely upon documents other than those referred to in Sections 239 and 240 of the Code of Criminal procedure. and whether the High Court would be justified in quashing the charges under Section 482 of the Code of Criminal procedure. on the basis of such documents. Answering the question in the negative this Court held that while an order framing charges could be challenged in revision by the accused persons before the High Court or the Sessions Judge, the revisional Court could in any such case only examine the correctness of the order framing charges by reference to the documents referred to in Sections 239 and 240 of the Code of Criminal procedure and that the Court could not quash the charges on the basis of documents which the accused may produce except in exceptional cases where the documents are of unimpeachable character and can be legally translated into evidence. The following passage is, in this regard, apposite:

7. If charges are framed in accordance with Section 240 Code of Criminal procedure on a finding that a prima facie case has been made out – as has been done in the instant case – the person arraigned may, if he feels aggrieved, invoke the revisional jurisdiction of the High Court or the Sessions Judge to contend that the charge-sheet submitted under Section 173 Code of Criminal procedure and documents sent with it did not disclose any ground to presume that he had committed any offence for which he is charged and the revisional court if so satisfied can quash the charges framed against him. To put it differently, once charges are framed under Section 240 Code of Criminal procedure the High Court in its revisional jurisdiction would not be justified in relying upon documents other than those referred to in Sections 239 and 240 Code of Criminal procedure; nor would it be justified in invoking its inherent jurisdiction under Section 482 Code of Criminal procedure to quash the same except in those rare cases where forensic exigencies and formidable compulsions justify such a course. We hasten to add even in such exceptional cases the High Court can look into only those documents which are unimpeachable and can be legally translated into relevant evidence.

Nitya Dharmananda @ K. Lenin & ANR. Vs. Sri Gopal Sheelum Reddy also known as Nithya Bhaktananda & ANR.[SC 2017 DECEMBER]

KEYWORDS:-  FRAMING CHARGE- DEFENCE MATERIAL

Capture

  • It is settled law that at the stage of framing of charge, the accused cannot ordinarily invoke Section 91. However, the court being under the obligation to impart justice and to uphold the law, is not debarred from exercising its power, if the interest of justice in a given case so require, even if the accused may have no right to invoke Section 91. To exercise this power, the court is to be satisfied that the material available with the investigator, not made part of the chargesheet, has crucial bearing on the issue of framing of charge.
  • It does not mean that the defence has a right to invoke Section 91 Cr.P.C. de hors the satisfaction of the court, at the stage of charge.

DATE :- DECEMBER 7, 2017

ACTS:- Section 91 of the Cr.P.C.- Section 376 of the Indian Penal Code

SUPREME COURT OF INDIA

Nitya Dharmananda @ K. Lenin & ANR. Vs. Sri Gopal Sheelum Reddy also known as Nithya Bhaktananda & ANR.

[Criminal Appeal No. 2114 of 2017 arising out of Special Leave Petition (CRL.) No.8279 of 2016]

State Of Karnataka Vs. Gopal Sheelum Reddy also Known as Nithya Bhaktananda

[Criminal Appeal No. 2115 of 2017 arising out of Special Leave Petition (CRL.) No.1176 of 2017]

O R D E R

1. Delay condoned.

2. Leave granted.

2. We have heard learned counsel for the State, the complainant, the accused and the learned amicus, Mr. Siddharth Luthra, Senior Advocate.

3. The respondent, Gopal Sheelum Reddy alias Nithya Bhaktananda, was charge sheeted for offences, inter alia, under Section 376 of the Indian Penal Code. The respondent approached the High Court with the prayer that the entire material available with the investigator, which was not made part of the chargesheet, ought to be summoned under Section 91 of the Cr.P.C. The High Court, reversing the contrary view of the trial court, allowed the said application.

4. Contention raised on behalf of the appellants is that the view of the High Court is contrary to law laid down by this Court in State of Orissa versus Debendra Nath Padhi (2005) 1 SCC 568 and reiterated in the subsequent decisions. The defence could not be considered at the stage of framing of charge so as to avoid a mini trial.

5. Learned counsel for the defence, on the other hand, submitted that if the investigator is not fair and the material of sterling quality, though seized during investigation and available with him, is deliberately left out from the chargesheet, there is no bar for the court to summon the said material.

6. It is settled law that at the stage of framing of charge, the accused cannot ordinarily invoke Section 91. However, the court being under the obligation to impart justice and to uphold the law, is not debarred from exercising its power, if the interest of justice in a given case so require, even if the accused may have no right to invoke Section 91. To exercise this power, the court is to be satisfied that the material available with the investigator, not made part of the chargesheet, has crucial bearing on the issue of framing of charge.

7. In Debendra Nath Padhi, supra, it was observed:

“25. Any document or other thing envisaged under the aforesaid provision can be ordered to be produced on finding that the same is “necessary or desirable for the purpose of investigation, inquiry, trial or other proceedings under the Code”. The first and foremost requirement of the section is about the document being necessary or desirable. The necessity or desirability would have to be seen with reference to the stage when a prayer is made for the production. If any document is necessary or desirable for the defence of the accused, the question of invoking Section 91 at the initial stage of framing of a charge would not arise since defence of the accused is not relevant at that stage.

When the section refers to investigation, inquiry, trial or other proceedings, it is to be borne in mind that under the section a police officer may move the court for summoning and production of a document as may be necessary at any of the stages mentioned in the section. Insofar as the accused is concerned, his entitlement to seek order under Section 91 would ordinarily not come till the stage of defence. When the section talks of the document being necessary and desirable, it is implicit that necessity and desirability is to be examined considering the stage when such a prayer for summoning and production is made and the party who makes it, whether police or accused.

If under Section 227, what is necessary and relevant is only the record produced in terms of Section 173 of the Code, the accused cannot at that stage invoke Section 91 to seek production of any document to show his innocence. Under Section 91 summons for 3 production of document can be issued by court and under a written order an officer in charge of a police station can also direct production thereof. Section 91 does not confer any right on the accused to produce document in his possession to prove his defence. Section 91 presupposes that when the document is not produced process may be initiated to compel production thereof.”

8. In Hardeep Singh Etc. versus State of Punjab and ors. Etc. (2014) 3 SCC 92 a Bench of five-Judges observed:

“19. The court is the sole repository of justice and a duty is cast upon it to uphold the rule of law and, therefore, it will be inappropriate to deny the existence of such powers with the courts in our criminal justice system where it is not uncommon that the real accused, at times, get away by manipulating the investigating and/or the prosecuting agency. The desire to avoid trial is so strong that an accused makes efforts at times to get himself absolved even at the stage of investigation or inquiry even though he may be connected with the commission of the offence.”

9. Thus, it is clear that while ordinarily the Court has to proceed on the basis of material produced with the charge sheet for dealing with the issue of charge but if the court is satisfied that there is material of sterling quality which has been withheld by the investigator/prosecutor, the court is not debarred from summoning or relying upon the same even if such document is not a part of the charge sheet. It does not mean that the defence has a right to invoke Section 91 Cr.P.C. de hors the satisfaction of the court, at the stage of charge.

10. Accordingly, the view to the contrary in the impugned judgment cannot be sustained and is set aside.

11. The trial court may now proceed to deal with the issue of framing of charge in the light of the observations made hereinabove and also to proceed with the matter expeditiously in accordance with law. The parties are directed to appear before the trial court for further proceedings on Monday, the 12th February, 2018. We record our deep appreciation for the valuable assistance rendered by Mr. Siddharth Luthra, learned senior counsel, as amicus. The appeals are accordingly disposed of.

 (ADARSH KUMAR GOEL)

(UDAY UMESH LALIT)