Full Judgment
A.M. Mir, J.
1. This is a Revision filed against an order passed by Sessions Judge Budgam on 29-11-1996, whereunder accused named Ahad Sofi, Assad Sofi and Rahim Sofi have been charged of Section 304, Part-II and thus discharged from Section 302 of RPC. So far accused Mohd. Sofi is concerned he has been discharged. The prosecution story in brief is that on fateful day of occurrence the accused after forming an un-lawful assembly assaulted the deceased Mohd Sofi. He received a fatal blow from accused Assad Sofi. He was hospitalised. After a duration of seven days he succumbed to his head injury sustained by the blow. The learned trial Court after hearing the parties seems to have been noseled by some authorities, reproduced at page 3 of the order and thus held that the death was caused by a 'Single blow' on the spur of moment', without there being any premeditation' and holds the act to be the outcome of sudden impulsive provocation. Interestingly the trial Court has held as under :-
I am satisfied that the intention to cause death of the deceased Mohd Sofi cannot be attributed to A-l, A-2 and A-3 in this case. The said accused did not cause any injury to the deceased with any sharp edged weapon. The alleged incident appears to have occurred at the spur of moment and without any premeditation etc etc.
2. Thus the trial Court proceeds to charge the three accused informs of 304-11, RFC and discharges the accused No. 4.1 want to place on record my disappointment in respect of the manner and method in which this important case has been handled and that also by one of the senior most District and Session's Judge. I wish he could have noticed the stage at which he was passing the order. The observations made by the Presiding Officer in the impugned order give an impression as if he was deciding the case finally. Under Section 268 read with 269, Cr. P. C, the Court of Session was required to consider the record of the case and documents submitted there with. He had to hear the accused and the prosecution and if such consideration and hearing would lead the Sessions Judge to the belief, that no sufficient ground for containing the proceeding against the accused existed. He could discharge the accused, but while doing so, he had to record reasons. However, if after such consideration and hearing, the Judge would be of the opinion that there was ground for presuming that the accused had1 committed an offence, then he would proceed interms of Section 269 of the Code and frame charge.
3. The question that arises here is as to what is meant by sufficient ground here, needs to be viewed from the following perspectives :-
(1) The term 'sufficient ground' as appearing in Section 268 should not be taken to mean the same thing as may enable a criminal court to record a finding of guilt at the conclusion of the trial. Sufficiency of ground at the conclusion of the trial has to be beyond any shadow of doubt. ' On all probabilities the single conclusion capable of being drawn at that stage should be that the offence was committed. A strong suspicion founded upon material and presumptive opinion at the time of proceeding with a case under Chapter XXIII of the Code can form the basis for framing a charge. Whereas, at the time of final decision every presumption is to be drawn in favour of the innocence of the accused and suspicion however well founded and strong cannot form the basis for conviction of the accused.
(2) That interpretation of the term 'sufficient ground' appearing in Section 268 is to be harmonised with the term 'a ground for presuming that the accused has committed an offence' appearing in Section 269 Supra.
Thus where a ground exists, which suggests that offence was committed. The Sessions Court cannot, say that there is no sufficient ground enabling the Court to frame charge.
The powers of the Court under Sections 268 and 269 are closely similar though not identical. Because, while using power in terms of one, application of the other is ruled out. Therefore, both the provisions go hand in hand.
The purpose of both these sections is to ask the Court to ensure that accusation made against the accused are not frivolous.
A Division Bench of Calcutta in case titled as R.W. Harcos v. State of West Bengal reported in 1975 Cri LJ 1256 considered the relative co-application of these two Sections and held that where there is some material before the Court to proceed against the accused, he cannot be discharged.
In State of Bihar v. Ramesh Singh reported in AIR 1977 SC 2018 : 1977 Cri LJ 1606 their Lordships of the apex Court expressly laid down that Sections 227 and 228 of the Central Code (Para materia with Sections 267 and 268 of the Code) have got to be read in juxtaposition.
(3) Sufficiency of ground for purposes of framing a charge or lack of the same to enable the Court to discharge the accused means that in the opinion of the Sessions Court if a prima facie case against the accused exists, charge shall be framed. Prima facie case is the x facie statement of the allegations. The record or the statements on record are to be taken on their face value. Its truth or veracity cannot be judged at the charge stage.
The Apex Court in case Kewal Krishen v. Suraj Bhan reported in AIR 1980 SC 1780 : 1980 Cri LJ 1271 held that at the charge stage, the standards of test regarding guilt or otherwise of the accused cannot be applied at the stage of dealing with the case under Section 227 of Central Code (para materia with Section 268 of the State Code). Their Lordships relied upon a finding of the same Court delivered in case State of Bihar v. Ramesh Singh reported in AIR 1977 SC 2018 : 1977 Cri LJ 1606, it reads as under :- (At P. 1607-08)
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 for sufficient ground for proceeding with the trial. An exhaustive list of the circumstances to indicate as to what will lead to one conclusion or the other is neither possible nor advisable. We may just illustrate the difference of the law by one more example. If the scales of pan as to the guilt or innocence of the accused are something like even at the conclusion of the trial, then, on the theory of benefit of doubt the case is to end in his acquittal. But if, on the other hand, it is so at the initial stage of making an order under Section 227 or Section 228, then in such a situation ordinarily and generally the order which will have to be made will be one under Section 228 and not under Section 227. Therefore, what follows is that in a case where the mind of the Court is unmade and genuinely flickers as to whether the accused is innocent or guilty, the Court will frame the charge and will not discharge the accused.
(4) That what is required to be taken note of is that by framing a charge against an accused, he is only to put to a trial. The Court gives him power to demolish the prosecution evidence by cross-examination and also to lead defence in rebuttal. The order framing charges does not convict him. It is in this background that the Sessions Court is debarred from taking into account any point of defence at the time of proceeding in terms of Section 268 and Section 269. Thus the trial Court is not required to scan the evidence as if it is to acquit or convict the accused. All what is required is to see whether there arises some case out of the material and if that is so, charge shall be framed. The apex Court of the country in case State of Andhra Pradesh v. P. Jagannadhan reported in 1982 Cri LR (SC) 519 considered the point. The sessions Court discharged an accused against whom allegations of murder were levelled. The case hinged on circumstantial evidence. The accused and the deceased were last seen together. The accused were also seen leaving the hut with blood stained clothes. The trial Court discharged the accused on the plea that there was no evidence.
The Supreme Court quashed the order and held that a prima facie case against the accused was existing and as such order of discharge was not justified.
(5) An order which discharges an accused has in terms of Section 268 to detail out reasons supporting the same order. On the other hand Section 269 does not lay down any obligation on the Court to record reasons, when it frames charge against the accused. An obligation cost upon the Court to record reasons in terms of Section 268 implies that reference should be made to the grounds which made the Court to believe that no sufficient ground existed against the accused.
(6) The words 'for proceeding against the accused' seem to have a relevance with lack of wounds in the background of totality of the facts of the case emerging out of the material. Suppose there is a legal bar to the prosecution or there is a hitch of lack of sanction. The prosecution in such a case cannot be carried on basis of such legal defects. There may be a statutory bar for continuing the proceedings. Therefore, the words 'for proceeding against the accused' should not confuse the Court of Session and should not be taken to mean that if upon such material the accused cannot be convicted, there is no sufficient ground for proceeding against him.
4. A Bench of this Court has earlier while dealing with Criminal Revision No. 122/84 titled State v. Padam Singh Reported in 1987 Kash LJ 213 taken almost the same view as expressed above.
5. There is yet another aspect which is usually but erroneously projected as a contrary view. It is often said that if the Court of Sessions can not pass an effective order and cannot appreciate the evidence then it is while exercising power under Sections 268 and 269 supposed to pass only a formal order of framing charge.
6. In my opinion, if the scheme of the Act is taken note of; the stage at which powers under Chapter XXIII are to be exercised is noticed; and above all the text of the two sections is understood un-erringly, the whole position becomes clear. In a case where the material produced absolutely makes out no case against the accused, or where for any other ground the accused cannot be proceeded against, the Sessions Judge can pass an order under Section 268. The question of disarming the Court of Sessions by the earlier interpretation does not arise.
7. Behera J. of Orissa High Court speaking for a D. B. of that Court in Meheswar Goude v. State reported in 1983 Cri LJ 1029 (1031) while dispelling this anomaly held :-
The presiding officer of Court of Session must take an intelligent part in the proceedings and exercise due care while framing the charges of examining the accused persons as there are not matters of empty formality. He should not merely the disinterested auditor of the contest between the prosecution and the defence and should come to a clear understanding of the actual events that occurred and ensure that proper and necessary steps have been taken to arrive at the truth.
8. Likewise Ahmadi, J. (as his Lordship then was) in a celebrated case titled Niranjan Singh v. Jitendra Bhimraj Bijja reported in AIR 1990 SC 1962 : 1990 Cri LJ 1869, held that the Sessions Court can look into the case and if finds that no case against the accused is made out appropriate orders of discharge also can be made. Be it kept in mind that the case was under TADA and the Apex Court while giving due weightage to the powers of the Sessions Court and experience of the Presiding Officer held that power under the Chapter could be exercised.
9. There is absolutely no denial to the existence of powers. But these powers are required to be exercised within the defined para meters. Once these para meters are overstepped, such exercise may amount to abuse of power.
10. Reverting back to the facts of the case we find that there are many eye witnesses to the allegation that the accused Asad Sofi hurled a lathi blow upon the head of the deceased who on hospitalisation passed away in the hospital. Statements of PW's Abdul Samad Sofi, Ahed Sofi and Mohd Subhan Sofi are catagoric on this point. The medical evidence at a prima facie glance seems to be more than corroborative to the prosecution version. To say that the lathi blow was caused at the 'Spur of moment' in a 'sudden fight' and was the outcome of a sudden provocation is to pre-judge the cause without there being any evidence to that effect. The trial Court has charged the accused Asad Sofi under Section, 304-II, RPC read with Section 34, RPC and 447, RPC. The conclusion drawn by the Sessions Judge that the accused had no intention of causing death, is premature and not tenable at this stage. For this purpose I would like to reproduce illustration (c) to Section 300, RPC which reads as under :-
(c) A intentionally gives Z a sword-cut or club wound sufficient to cause the death of a man in the ordinary course of nature. Z dies in consequence. Here A is guilty of murder, although he may not have intended to cause Z's death.
11. The prosecution evidence boldly suggests that the lathi blow was given on the head of the deceased. Therefore, the order on the presumption of non-existence of intention is not well founded.
12. The term 'sufficient ground' and existence of a ground' appearing in Sections 268 and 269, have not been read in juxtaposition. No grounds in support of the order discharging the accused have been furnished. There does exist a prima facie case, against the accused. The Court of Session has grossly erred in drawing conclusions, which could be drawn only after conclusion of the trial and after leading the whole evidence.
13. On the foregoing analogy, I find that the Sessions Judge while framing charge against the three accused under Section 302(ii) and has committed an error of law. He has over stepped his jurisdiction as the order impugned has the effect of discharging the accused from Section 302.
14. Thus I quash the order impugned. The case is ordered to be sent back to the trial Court which is now manned by a new officer. He will hear the parties again and after examining the material will pass fresh appropriate orders in terms of Chapter XIII. the guidelines outlived in this order shall be strictly adhered to. However, any expression used in this order should not prejudice the mind of the Court at the time of finally deciding the matter after conclusion of the trial. But, at this stage there observations shall be binding.