ORDER
1. This is a petition by A-16 to A-18 against the order dated 17-10-1985 passed by the Magistrate, Yelburga, in Criminal Case No. 157/85 proposing to frame a charge against them for the offences under Sections 143, 147, 148, 504, 506, 323, 324, 354, 355, 341, 448, 342, 109 read with S. 149, I.P.C.
2. A-16 Mahanata swamy is stated to be the Matadipathi of a Mutt known as Mysore Mutt situate in Kudrimoti village of Yelburga taluk. Virupaksha Gowda, C.W. 2, was working as a teacher in a Primary School at Kudrimoti. He was living with his wife Parvatavva C.W. 1 and his children including C.Ws. 3 and 4 in Kudrimoti. His wife Parvatavva C.W. 1 was going to the said Mutt to offer prayers to the Gaddige and also for attending Akkana Balaga. According to the prosecution, on 9-4-1985 Parvatavva C.W. 1 had gone to the Mutt and at that time A-16 had an occasion to see her and requested her to have illicit connection with him. According to the prosecution, Parvatavva C.W. 1 resented that move made by A-16 and told him that it was not proper for him to make such illicit advances towards her. She came back to the house but did not inform her husband C.W. 2 fearing that something untoward might happen to her.
3. On 10-4-1985, she again went to the Mutt. According to the prosecution, A-16 told her on that day that it was wrong on his part to have talked to her like that the previous day. She came back.
4. Later on, a letter assassinating her character is said to have been received by her. Thereafter another letter addressed to Hussainbi was also received by her husband. Hussainbi's husband handed over that letter to C.W. 2 Virupaksha Gowda. At that time Parvatavva C.W. 1 disclosed to her husband C.W. 2 about the letter received by her also in that matter. In that connection, her husband Virupaksha Gowda C.W. 2 later approached A-16 and told him that he ought not to have behaved in that fashion. According to the prosecution, subsequently some elders or well-wishers of A-16 intervened in the matter and made efforts for bringing about a compromise between Virupaksha Gowda C.W. 2 and A-16 Virupaksha Gowda C.W. 2 being afraid of A-16 complained to the Assistant Superintendent of Police, Kempaiah, at Koppal.
5. On 10-6-1985, A-17 and A-18, C.Ws. 5, 6 and 7 (brothers of C.W. 1) went to A-16 but in vain. According to the prosecution, Virupaksha Gowda and Parvatavva told A-17 and A-18 and others at that time that some two others Eshappa Desai and Hanumanta Gowda had promised to come on 17-6-1985 for bringing about a compromise and until they came they were not prepared for the compromise. According to the prosecution, A-17 and A-18 threatened C.W. 1 Parvatavva and her husband Virupaksha Gowda C.W. 2 that they will have to face serious consequences by next day.
6. On 11-6-1985 while Parvatavva C.W. 1 was coming along with her son near a cross, A-1 to A-15 and some others are alleged to have got down from a tractor and started assaulting Parvatavva. She sustained injuries in the assault. She came back to the house and found that her husband and also had been assaulted. She and her husband went to the police station at Bevoor and lodged a complaint implicating A-1 to A-15 in the actual assault and implicating A-16 to A-18 by alleging that they had instigated or abetted the other accused to commit the present offences. The police registered a case in Crime No. 14/85 for the offences under Ss. 143, 147, 148, 504, 506, 323, 324, 354, 355, 341, 448, 342, 109 read with S. 149, , I.P.C.
7. In the course of the investigation, the police have recorded the statements of C.Ws. 1 to 38 and some others, prepared various mahazars and collected medical certificates and ultimately placed a charge sheet for the offences under sections 143, 147, 148, 504, 506, 323, 324, 354, 355, 341, 448, 342, 109 read with S. 149, I.P.C. against A-1 to A-18.
8. The Judicial Magistrate, First Class Yelburga, took cognizance of the offences against the accused persons and issued the process.
9. A-16 feeling aggrieved by the issue of process against him by the Judicial Magistrate, First Class, Yelburga, approached this Court with Criminal Revn. Petn. No. 405 of 1985 requesting this Court to quash the issue of process against him. This Court rejected that petition by its order dated 1-8-1985.
10. Thereafter A-1 to A-18 appeared before the Magistrate and he supplied to them all the copies of the documents referred to in S. 173, Cr.P.C. The Judicial Magistrate, First Class, Yelburga, on considering the police report and the documents sent with it under Section 173, Cr.P.C. and after hearing the prosecution and the accused, passed a very lengthy order. The final portion of that order dated 17-10-1985 reads as under :-
'The contention raised by the learned counsel for the accused Nos. 16 to 18 for discharge of accused persons 16 to 18 rejected.
The charges against all the accused persons 1 to 18 for the offences punishable under sections 143, 147, 148, 504, 506, 323, 324, 354, 355, 341, 448, 342, 109 read with S. 149, I.P.C. are ordered to be framed.'
A-16 to A-18 being aggrieved by the said order passed by the Magistrate have approached this Court with this petition.
11. Section 269, Cr.P.C. read as :-
'If, upon considering the police report and the documents sent with it under Section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing.'
12. Section 240, Cr.P.C. reads as under :-
'(1) If, upon such consideration, examination, if any, and hearing, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try and which, in his opinion could be adequately punished by him, he shall frame in writing a charge against the accused.
(2) The charge shall then be read and explained to the accused, and he shall be asked whether he pleads guilty of the offence charged or claims to be tried.'
The learned Magistrate has written a lengthy order running into 39 typed pages. Section 240, Cr.P.C. does not contemplate of giving reasons for framing of a charge or for writing such a detailed order. The question of giving reasons would arise only if the Magistrate wants to discharge the accused persons (vide S. 239, Cr.P.C.). Therefore, the learned Magistrate has unnecessarily wasted a good deal of time over writing such a detailed order when he had made up his mind to frame a charge for the various offences against the accused persons.
13. The Magistrate has proposed to frame a charge against A-1 to A-18 for the offences punishable under sections 143, 147, 148, 504, 506, 323, 324, 354, 355, 341, 448, 342, 109 read with S. 149, , I.P.C. It is not the case of the prosecution itself that A-1 to A-15 have committed the offence under Section 109, I.P.C. Therefore his proposal to frame a charge for the alleged offence under S. 109, I.P.C. against all the accused, does not appear to be correct. Section 109, I.P.C. applies only to those persons who abet the commission of the offence. There is no allegation against A-1 to A-15 regarding the abetment. The prosecution case is that A-1 to A-15 themselves committed the said various offences. Therefore, a slight mistake appears to have been committed by the lower Court in proposing to charge A-1 to A-15 even under Section 109, I.P.C. To this extent his proposal to frame the charge needs to be rectified.
14. Before proceeding to discuss the question as to whether there are materials to frame a charge against A-16 to A-18 in the case, I would like to consider the scope of Sections 239 and 240 of the Criminal P.C. Sections 239 and 240 of the Criminal P.C. have already been reproduced by me in extenso above.
15. Section 239, Cr.P.C. lays down that if the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused. The word 'groundless', in my opinion, means that there must be no ground for presuming that the accused has committed of offence. The word 'groundless' used in S. 239, Cr.P.C. means that the materials placed before the Court do not make out or are not sufficient to make out a prima facie case against the accused.
16. The learned author Shri Sarkar in his Criminal P.C., 5th Edition, on page 427, has opined as :-
'The provision is the same as in S. 227, the only difference being that the Magistrate may examine the accused, if necessary, of also S. 245. The Magistrate shall discharge the accused recording reasons, if after (i) considering the police report and documents mentioned in S. 173; (ii) examining the accused, if necessary and (iii) hearing the arguments of both sides he thinks the charge against him to be groundless, i.e., either there is no legal evidence or that the facts do not make out any offence at all.'
In short it means that if no prima facie case regarding the commission of any offence is made out, it would amount to a charge being groundless.
17. In Century Spinning and . v. State of Maharashtra, : 1972CriLJ329 , the Supreme Court has state about the ambit of S. 251(A)(2) of the Cr.P.C. 1898, which is in pari materia with the wordings used in S. 239, Cr.P.C. as follows :-
'It cannot be said that the Court at the stage of framing the charge has not to apply its judicial mind for considering whether or not there is a ground for presuming the commission of the offence by the accused. The order framing the charges does substantially affect the person's liberty and it cannot be said that the Court must automatically frame the charge merely because the prosecuting authorities by relying on the documents referred to in S. 173 consider it proper to institute the case. The responsibility of framing the charges is that of the Court and it has to judicially consider the question of doing so. Without fully adverting to the material on the record it must not blindly adopt the decision of the prosecution.'
In para 15, the Supreme Court has stated as :-
'Under sub-section (2), if upon consideration of all the documents referred to in S. 173, Criminal P.C. and examining the accused, if considered necessary by the Magistrate and also after hearing both sides, the Magistrate considers the charge to be groundless, he must discharge the accused. This sub-section has to be read along with sub-section (3), according to which, if after hearing the arguments and hearing the accused, the Magistrate thinks that there is ground for presuming that the accused has committed an offence triable under Chap. XXI of the Code within the Magistrate's competence and for which he can punish adequately, he has to frame in writing a charge against the accused. Reading the two sub-sections together, it clearly means that the accused has committed an offence, the charges must be considered to be groundless, which is the same thing as saying that there is no ground for framing the charges.'
Thus the word 'groundless' as interpreted by the Supreme Court means that there is no ground for presuming that the accused has committed an offence.
18. The Supreme Court has again considered this aspect of the matter in State of Bihar v. Ramesh Singh, : 1977CriLJ1606 . In para 4 it is stated as :-
'If 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, as enjoined by S. 227. If, on the other hand, 'the Judge is of opinion that there is ground for presuming that the accused has committed an offence which -
....... ......... ........ ........
(b) is exclusively triable by the Court, he shall frame in writing a charge against the accused', as provided in S. 228. Reading the two provisions together in juxtaposition, as they have got to be, it would be clear that at the beginning and the initial stage of the trial the truth, veracity and effect of the evidence which the Prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be attached to the probable defence of the accused. It is not obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter under Section 227 or S. 228 of the Code. At that stage the Court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. The presumption of the guilt of the accused which is to be drawn at the initial stage is not in the sense of the law governing the trial of criminal cases in France where the accused is presumed to be guilty unless the contrary is proved. But it is only for the purpose of deciding prima facie whether the Court should proceed with the trial or not. If the evidence which the Prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial.'
In para 5, the Supreme Court has stated as :-
'In Nirmaljit Singh Hoon v. The State of West Bengal, : [1973]2SCR66 Shelat J., delivering the judgment on behalf of the majority of the Court referred at page 79 of SCR : (at p. 2646 of AIR) of the report to the earlier decisions of this Court in Chandra Deo Singh v. Prokash Chandra Bose, : [1964]1SCR639 where this Court was held to have laid down with reference to the similar provisions contained in Sections 202 and 203 of the Criminal P.C. 1898, 'that the test was whether there was sufficient ground for proceeding and not whether there was sufficient ground for conviction, and observed that where there was prima facie evidence, even though the person charged of an offence in the complaint might have a defence, the matter had to be left to be decided by the appropriate forum at the appropriate stage and issue of a process could not be refused'.'
19. The Supreme Court had again dealt with this aspect of the matter in Superintendent and Remembrancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja : 1979CriLJ1390 . The Supreme Court has stated in the said case as :-
'At this stage, even a very strong suspicion found upon materials before the Magistrate, which leads him to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged, may justify the framing of charges against the accused in respect of the commission of that offence.'
The suspicion referred to by the Supreme Court must be founded upon the materials placed before the Magistrate which leads him to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged. Therefore, the words 'a very strong suspicion' used by the Supreme Court must not be a strong suspicion of a vacillating mind of a Judge. That suspicion must be founded upon the materials placed before the Magistrate which leads him to form a presumptive opinion about the existence of the factual ingredients constituting the offence alleged.
20. With this legal background in view, I would proceed to find out whether the materials placed before the Court so far as the three petitioners are concerned, are sufficient to raise a very strong suspicion founded upon the materials which lead him to form a presumptive opinion about the existence of the factual ingredients constituting the various offences.
21. So far as A-17 Chandra Shekarayya, petitioner-2 and A-18 Anandappa petitioner 3 are concerned, their case appears to stand on a different footing. Parvatavva C.W. 1, Virupaksha Gowda C.W. 2, and her sons Prabhulingana Gowda C.W. 3 and Anandana Gowda C.W. 4 speak about A-17 and A-18 threatening them (Parvatavva C.W. 1 and Virupaksha Gowda C.W. 2) that if they did not agree to the compromise, they would have to face disastrous consequences by next day morning. The other witnesses also speak about A-17 and A-18 holding out threats to Parvatavva C.W. 1 and Virupaksha Gowda C.W. 2 in this connection. The said threat is alleged to have been held out by them on 10-6-1985 while the actual incident has taken place on 11-6-1985. Therefore the proximity of time is prima facie sufficient at this stage to show that they must be behind the back of the incident that took place on 11-6-1985. The said materials would indicate that they must have instigated A-1 to A-15 to commit the offences. Therefore this material, in my opinion, distinguishes their case from the case of A-16. Therefore the view of the trial court that a prima facie case against A-17 and A-18 for abetting the various offences is made out, cannot be interfered with at this stage.
22. A-16 Mahantaswamy, according to the various prosecution witnesses, is the Head of the Mutt known as Mysore Mutt situate in Kudrimoti village. Parvatavva C.W. 1 speaks that when she had gone to the Mutt on 9-4-1985, A-16 requested her to have illicit connection with him. According to her, she resented that proposal and advised A-16 that it was not proper for A-16 who is a Swami, to make such advances. According to her, she went to the Mutt even the next day. Thereafter, it appears, a letter was received by her in which her character was assassinated. Thereafter her friend Hussainbi's husband is said to have received a similar letter assassinating the character of Hussainbi and also Parvatavva. These letters were disclosed to C.W. 1's husband Virupaksha Gowda.
Thereafter various attempts were made to bring about a compromise between A-16 and Virupaksha Gowda C.W. 2. As can be seen from the statements of Parvatavva C.W. 1 and Virupaksha Gowda C.W. 2, Eshappa Desai and Hanumanta Gowda had told them that they would bring about a compromise between them and A-16 and for that purpose they would come on 17-6-1985. The statements of C.Ws. 1 and 2 indicate that A-17 and A-18 approached them on 10-6-1985 and threatened them to compromise with A-16. The statements of C.Ws. 1 and 2 indicate that they told A-17 and A-18 that they would not come on that day for the compromise as Eshappa Desai and Hanumanta Gowda had promised them to come on 17-6-1985 and to bring about a compromise. Their statements indicate that A-17 and A-18 threatened them with dire consequences by next day morning. The material portion in the complaint is to be found at the fag-end of the complaint. It reads as :-
'The reason for the commission of all these incidents is :-
Mahantaswami asked me to have illicit connection with him and in this connection letters were received and Mahantaswami felt that a case might be filed against him on informing the police and she refused to compromise with Mahantaswami and on account of this he got committed the incident in this fashion at the hands of Shekaraiah and Andappa Sobigana and by the above mentioned persons. On account of this, action should be taken against all of them.'
This portion of the recital in complaint only indicates that it is only her unfounded imagination that made her to think that A-16 might have got the incident dated 11-6-1985 perpetrated at the hands of the accused persons. Even if it is closely read, it does not even indicate that A-16 instigated or abetted any one of the accused persons to commit the offences on 11-6-1985. This recital in the complaint cannot be said to make out even remotely a case of abetment against A-16. In her supplementary statement recorded on 13-6-1985, she does not speak anything implicating A-16 at all. Even the statement of her husband Virupaksha Gowda C.W. 2 would only indicate that he too was of the opinion that A-16 fearing that a criminal case might be launched against him, might have got committed the assault on them. Even his statement would not be sufficient to raise a suspicion even remotely that A-16 abetted any one of the accused persons to commit the offences in question. The statements of Prabhulingana Gowda C.W. 3 and Andana Gowda C.W. 4 who are the sons of Parvatavva C.W. 1, only indicate that they were of the view that A-16 might have got the assault committed.
These statements are not sufficient to raise even a strong suspicion that A-16 abetted the commission of the offence dated 11-6-1985. The last portion of the statement of Hoolappa contains similar recitals which indicate that he apprehended that the assault might have been got committed by A-16. Therefore this would not be even remotely sufficient to level the charge of abetment against A-16. The statement of Shantappa recorded on 27-6-1985 speaks at the end that on account of the incidents that took place on 9-4-1985 and 10-4-1985, A-16 might have instigated A-1 to A-15 to commit the assault. Even this material would not be even remotely sufficient to level a charge of abetment against A-16. The statement of Sharanappa shows that he heard people talking that the followers of A-16 on account of the said incidents committed the assault on 11-6-1985. There is nothing in it to indicate that A-16 abetted the other accused persons to commit the offences. Similar is the statement of Hotteppa recorded on 19-6-1985. The statement of Hussainbi recorded on 18-6-1985 only indicates that A-16 got irritated against her as Parvatavva refused to have illicit connection with him and as Parvatavva resented that advancement. The statement of Kare Gowda recorded on 4-7-1985 reads as :-
Therefore this material would go to show that he does not personally know anything about the abetment. His knowledge in the matter is only hearsay and is not based on any material.
23. I have referred copiously to all the materials available from the statements of almost all the witnesses in this connection. The said materials even if they remain what they are, would not be sufficient to raise even remotely a very strong suspicion to form a presumptive opinion that A-16 instigated any one of the accused persons to commit the said offences or abetted any one of them to commit the said offences.
24. The learned Advocate General referred me to a decision rendered by my learned brother Justice Venkatesh in Criminal Revn. Petn. No. 405/85 whereby A-16 had challenged the issue of process against him by the Magistrate. He, after referring to the various materials and after referring to S. 204 Cr.P.C. held that there was sufficient ground for the Magistrate to proceed for the purpose of issuing the process. Section 204 Cr.P.C. prescribes the first stage for the Magistrate to take action after taking cognizance of the offences. The first stage requires that there should be sufficient ground for proceeding. It is only a subjective satisfaction of the Magistrate unguided by the pros and cons of the story that might emanate from the materials after the prosecution and the accused are heard. It is practically an ex parte opinion to be formed by the Magistrate by himself perusing the materials referred to in S. 173 Cr.P.C. It is only after this first stage envisaged by S. 204 Cr.P.C. is over, the law prescribed the second stage in S. 239 Cr.P.C. If the ingredients required to issue process as mentioned in S. 204 Cr.P.C. are the same as the ingredients that are laid down by S. 239 Cr.P.C., S. 239 Cr.P.C. would become redundant and unnecessary. The second stage laid down by S. 239 Cr.P.C. requires the Magistrate to form an opinion after going through the papers and the documents and after examining the accused if it is necessary and after hearing the prosecution and the accused. Therefore the standard required by S. 239 Cr.P.C. appears to be a little higher than the standard required by S. 204 Cr.P.C. Therefore what Justice Venkatesh considered in Criminal Revn. Petn. No. 405 of 1985 was whether there was sufficient ground to proceed against the accused person or not for the purpose of issuing the process. The position relating to framing a charge or discharging the accused persons was not considered by him while he disposed of the said Criminal Revision Petition. Therefore the said decision would not be of help while finding out whether the materials on record sufficient or not to frame a charge against A-16.
25. Thus, in my opinion, the materials collected by the police are not even remotely sufficient to raise even a strong suspicion against A-16. The said materials, in my opinion, render the charge against A-16 groundless. In short, there is no material or ground to even remotely suspect that A-16 instigated or abetted the commission of the offences by any one of the accused persons. Therefore the order passed by the Magistrate proposing to frame a charge against A-16 for the offences under sections 143, 147, 148, 504, 506, 323, 324, 354, 355, 341, 448, 342, 109 read with S. 149, I.P.C. is quashed. The petition is allowed. A-16 Mahantaswamy is discharged. The bail bonds executed by A-16 Mahantaswamy and his sureties stand cancelled.
26. Whatever observations have been made by me in respect of the case against A-17 and A-18, are only for the purpose of finding out as to whether the materials are sufficient or not at this stage to frame a charge against them. I am sure that the observations made by me regarding A-17 and A-18 at this stage will not weigh with the Magistrate at the time of finally disposing of the case on merits.
27. Petition allowed.