Pritam Prasad Vs. Lakhan Singh and ors. - Court Judgment

Excerpt:
criminal - alteration of charge - prima facie - sections 147, 148, 149, 323, 325, 506, 427 and 307, ipc 307 of indian penal code, 1860 (ipc) and section 216 of code of criminal procedure, 1908 (cr pc) - petitioner lodged fir against accused sections 147, 148, 149, 323, 325, 506, 427 and 307, ipc - police omitted section 307 of ipc and filed charge sheet under rest of sections - petitioner filed application under section 216 of cr pc for alteration of charge by adding section 307 of ipc - application rejected - revision before sessions court - allowed - accused sought transfer of case - case transferred and committed to additional sessions judge - additional sessions judge heard the charge arguments and held that no prima facie charge for offence under section 307 was made out and passed the impugned order under section 228, cr.pc, remanding case to magistrate for trial under section 326/149, ipc - hence, present petition - held, court is not required to appreciate evidence and arrive at conclusion that material produced are sufficient or not for convicting accused - in present case there is enough material on record to indicate that injured suffered some injuries on their vital parts of body - considering assaults it cannot be said at this stage that accused persons did not at all intend to cause death of injured - hence, petition allowed and trial court directed to frame charge under section 307/149 of ipc, besides other offences - madhya pradesh nagar tatha gram nivesh adhiniyam (23 of 1973)section 50(4) proviso (as inserted by act of 2004): [dipak misra, krishna kumar lahoti & rajendra menon, jj] preparation of town development scheme proviso prescribing time limit held, object of amendment is to remove hardship caused to citizens and to provide time limit to consider objections and suggestion and to provide a deeming clause so that the authority would act in quite promptitude. proviso unequivocal, categorical and unambiguous and does not permit any other kind of construction but a singular one. section 50 (4) proviso (as inserted by act of 2004): [dipak misra, krishn kumar lahoti & rajendra menon, jj] preparation of town development scheme held, proviso is not retrospective. scheme already finalised will not lapse and has to be completed within the time span provided under proviso. no vested right accrues in favour of authority on commencement of process of preparation of scheme, which cannot be impaired by introducing proviso. section 50(4) proviso (as inserted by act of 2004): [dipak misra, krishn kumar lahoti & rajendra menon, jj] preparation of town development scheme held, proviso uses the term shall be deemed to have lapsed. it does not convey that scheme gets automatically lapsed. - he further submitted that prima facie on the material and evidence on record the charge under section 307, ipc is clearly made out. 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. if the court is satisfied that a prima facie case is made out for proceeding further, then a charge has to be framed.orderrakesh saksena, j.1. petitioner has filed this revision against the order dated 1st april, 2003, passed by first additional district judge, bhopal, in sessions trial no. 329/02, under section 228(1) of cr.pc, remanding the case to chief judicial magistrate, bhopal, for trial.2. in short, the facts of the case are that petitioner/complainant pritam prasad lodged a report against respondents/accused persons, on which crime no. 68/94 under sections 147, 148, 149, 323, 325, 506, 427 and 307, ipc was registered by police parwaliya road, bhopal. however, after investigation, police filed charge-sheet before the court of judicial magistrate first class under sections 147, 148, 149, 323, 325, 506, 427, ipc. section 307, ipc was omitted by the police. learned magistrate, by order dated 3-4-2000 framed the charges against the accused persons under sections 147, 148, 323, 325, 506, 427 read with section 149, ipc. during trial, eight prosecution witnesses were examined. on 24-4-2002, counsel for complainant moved an application under section 216 read with section 209, cr.pc praying for alteration of the charge by adding section 307. according to him, from the evidence and material on record, offence under section 307 was prima facie made out. therefore, he prayed that case be committed to sessions court as the offence under section 307 was exclusively triable by the court of sessions. by order dated 19-8-2002, learned magistrate rejected the said application.3. state challenged the aforesaid order by filing criminal revision no. 263/02 before the court of sessions. the revision filed by the state was allowed by the additional sessions judge on 24-10-2002, holding that on the facts and in the circumstances of the case, there was prima facie material to frame the charge for the offence under section 307, ipc and learned trial magistrate was directed to commit the case. in compliance of the order passed by the learned additional sessions judge, case was committed. the case was made over to the court of third additional sessions judge, bhopal, for trial. however, accused persons moved an application under section 409 of cr.pc for transfer of the case from that court. by order dated 7-2-2003, learned sessions judge, transferred the case from the court of third additional sessions judge to the court of additional sessions judge, bhopal. learned first additional sessions judge heard the charge arguments and after entering into deep discussion of facts held that prima facie no charge for the offence under section 307 was made out and passed the impugned order under section 228, cr.pc, remanding the case to the magistrate for trial under section 326/149, ipc.4. aggrieved by the said order, petitioner/complainant has filed this revision.5. learned counsel for the petitioner submitted that once learned additional sessions judge had passed an order in criminal revision no. 263/02 holding thatprima facie charge under section 307 was made out, there was then no propriety or occasion for the learned first additional sessions judge to review that finding and to hold that no charge under section 307 was made out. he further submitted that prima facie on the material and evidence on record the charge under section 307, ipc is clearly made out.6. learned counsel for the state supported the contentions made by learned counsel for complainant.7. on the other hand, learned counsel for the respondents/accused submitted that the learned sessions judge while passing the order dated 2-7-2003 in mjc no. 3/2003 and transferring the case under section 409, cr.pc, observed that finding of the revisional court shall be binding on the trial magistrate and not on the trial court. after the committal of the case, the trial court would be free to take its individual view on the basis of entire facts and circumstance of the case. he submitted that besides that, from the facts and evidence adduced in the case, no case for framing the charge under section 307, ipc is made out.8. after hearing the learned counsel for the parties and careful perusal of the record including various orders passed by the courts below, i am of the opinion that this revision deserves to be allowed.9. it is apparent that the trial court, i.e., first additional sessions judge, bhopal, was a court of co-ordinate jurisdiction with additional sessions judge, who decided the criminal revision no. 263/02. once a finding was recorded by the competent court in revision and was not set aside by the higher court, that finding became final. learned sessions judge while disposing of the application, filed by any party under section 409, cr.pc, was not expected to observe as to what would be the effect of the conclusion and finding recorded by the revisional court and further observe that after committal of the case, trial court would be free to take its individual view on the basis of entire facts. as a matter of propriety and decency, once a finding was recorded by a court of additional sessions judge in revision, that should not have been reviewed or undone by another court of coordinate jurisdiction. such a practice of reopening the issue, which was finally decided by a court of co-ordinate jurisdiction and had attained finality, cannot be approved. learned trial court committed error in seeking support from the proposition of law laid down by apex court in case of u.j.s. chopra v. state of bombay : 1955crilj1410 . in case of u.j.s. chopra (supra), the question was different. in that case, appellant was convicted by the court of magistrate and his appeal to high court was dismissed summarily. after summary dismissal of his appeal, the state government filed revision application to high court for enhancement of sentence. notice was issued to appellant to show cause against enhancement under revisional jurisdiction. the question was whether appellant was entitled to show cause against the conviction under section 439(6) of the code of criminal procedure, 1898. the apex court held that summary dismissal of the appeal preferred by appellant did not preclude him from taking advantage of the provisions of section 439(6) of the said code and showing cause against his conviction when he was subsequently called upon to show cause why the sentence imposed on him should not be enhanced. it was further held that there was difference between a case in which the judgment is final qua both the parties and a case when an appeal or revision by accused is summarily dismissed without issuing notice to the state. in later case, the judgment is final only qua the accused, who preferred the appeal or revision. in case of summery dismissal, the judgment not being final qua the state may apply for enhancement of the sentence and if it does, the accused again became entitled to show cause against his conviction also by reason of special provisions of section 439(6) of the said code.10. apparently, the aforesaid provision is not attracted in the circumstances of the present case, because the learned revisional court decided the revision bi-party and its order became final. in case of hindustan construction co. ltd. and anr. v. gopalkrishna sengupta 2003 air scw 2160, supreme court held that section 362 of the code of criminal procedure, 1974 did not permit the court to alter or review its earlier order, which was a final order.11. undoubtedly, when additional sessions judge in criminal revision no. 263/02 concluded that the facts of the case, prima facie, disclosed the commission of offence under section 307, ipc, it was not open to trial court (first additional sessions judge, bhopal) to review or recall that order and to remand the case for trial to magistrate holding that there was no material for framing charge under section 307, ipc.12. the scope of the provisions of sections 227 and 228 of the code of criminal procedure, which relates to the framing of charge, has been considered in catena of decisions of apex court. in case of rajbir singh v. state of u.p. and anr. : 2006crilj2458 , the apex court reiterated the law laid down in state of bihar v. ramesh singh : 1977crilj1606 and held:reading (sections 227 and 228) 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 section 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 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.in state of maharashtra and ors. v. somnath thapa : 1996crilj2448 , state by central bureau of investigation v. s. bangrappa (2001) 1 scc 369 and state of m.p. v. s.b. john and ors. (2000) 1 scc 57, it was held that:if on the basis of materials on record, a court could come to the conclusion that commission of the offence is a probable consequence, a case for framing of charge exists. to put it differently, if the court were to think that the accused might have committed the offence it can frame the charge, though for conviction the conclusion is required to be that the accused has committed the offence. it is apparent that at the stage of framing of a charge, probative value of the materials on record cannot be gone into; the materials brought on record by the prosecution has to be accepted as true at that stage.13. from perusal of the impugned order passed by the trial court, it transpires that it had gone very deep in analyzing and appreciating the evidence and materials produced by the prosecution embarking upon a long drawn enquiry and critical analysis of the evidence at the stage of framing of the charge which is wholly unjustified. the entire approach of the trial court appears to be as if it was deciding the case as to whether the accused are guilty or not. it appears that the trial court at the stage of framing charge in spite of considering the prima facie case, appreciated and weighed the materials on record to come to conclusion that charge against accused persons could not have been framed. it is settled law that at the stage of framing charge, the court has to prima facie consider whether there is sufficient ground for proceeding against the accused. the court is not required to appreciate the evidence and arrive at the conclusion that the material produced are sufficient or not for convicting the accused. if the court is satisfied that a prima facie case is made out for proceeding further, then a charge has to be framed. in the present case, there is enough material on record to indicate that injured pritam prasad and hukumchand suffered some injuries on their vital parts of the body. twelve injuries were found on the body of injured hukumchand. looking into these aspects of assaults, it cannot, on the face of it, be held at this stage, that accused persons did not at all intend to cause the death of injured.14. taking into consideration the overall circumstances of the case, the material on record and the foregoing discussion, i am of the view that this revision deserves to be allowed.15. accordingly, this revision is allowed. impugned order dated 1st of april, 2003, passed by first additional sessions judge, bhopal, in s.t. no. 329/02 is set aside. trial court is directed to frame charge under section 307/149, ipc, besides other offences, which it may find to be made out from the material on record and proceed with the trial expeditiously.

Judgment:
ORDER

Rakesh Saksena, J.

1. Petitioner has filed this revision against the order dated 1st April, 2003, passed by First Additional District Judge, Bhopal, in Sessions Trial No. 329/02, under Section 228(1) of Cr.PC, remanding the case to Chief Judicial Magistrate, Bhopal, for trial.

2. In short, the facts of the case are that petitioner/complainant Pritam Prasad lodged a report against respondents/accused persons, on which Crime No. 68/94 under Sections 147, 148, 149, 323, 325, 506, 427 and 307, IPC was registered by Police Parwaliya Road, Bhopal. However, after investigation, police filed charge-sheet before the Court of Judicial magistrate First class under Sections 147, 148, 149, 323, 325, 506, 427, IPC. Section 307, IPC was omitted by the police. Learned Magistrate, by order dated 3-4-2000 framed the charges against the accused persons under Sections 147, 148, 323, 325, 506, 427 read with Section 149, IPC. During trial, eight prosecution witnesses were examined. On 24-4-2002, Counsel for complainant moved an application under Section 216 read with Section 209, Cr.PC praying for alteration of the charge by adding Section 307. According to him, from the evidence and material on record, offence under Section 307 was prima facie made out. Therefore, he prayed that case be committed to Sessions Court as the offence under Section 307 was exclusively triable by the Court of Sessions. By order dated 19-8-2002, learned Magistrate rejected the said application.

3. State challenged the aforesaid order by filing Criminal Revision No. 263/02 before the Court of Sessions. The revision filed by the State was allowed by the Additional Sessions Judge on 24-10-2002, holding that on the facts and in the circumstances of the case, there was prima facie material to frame the charge for the offence under Section 307, IPC and learned Trial Magistrate was directed to commit the case. In compliance of the order passed by the learned Additional Sessions Judge, case was committed. The case was made over to the Court of Third Additional Sessions Judge, Bhopal, for trial. However, accused persons moved an application under Section 409 of Cr.PC for transfer of the case from that Court. By order dated 7-2-2003, learned Sessions Judge, transferred the case from the Court of Third Additional Sessions Judge to the Court of Additional Sessions Judge, Bhopal. Learned First Additional Sessions Judge heard the charge arguments and after entering into deep discussion of facts held that prima facie no charge for the offence under Section 307 was made out and passed the impugned order under Section 228, Cr.PC, remanding the case to the Magistrate for trial under Section 326/149, IPC.

4. Aggrieved by the said order, petitioner/complainant has filed this revision.

5. Learned Counsel for the petitioner submitted that once learned Additional Sessions Judge had passed an order in Criminal Revision No. 263/02 holding thatprima facie charge under Section 307 was made out, there was then no propriety or occasion for the learned First Additional Sessions Judge to review that finding and to hold that no charge under Section 307 was made out. He further submitted that prima facie on the material and evidence on record the charge under Section 307, IPC is clearly made out.

6. Learned Counsel for the State supported the contentions made by learned Counsel for complainant.

7. On the other hand, learned Counsel for the respondents/accused submitted that the learned Sessions Judge while passing the order dated 2-7-2003 in MJC No. 3/2003 and transferring the case under Section 409, Cr.PC, observed that finding of the Revisional Court shall be binding on the Trial Magistrate and not on the Trial Court. After the committal of the case, the Trial Court would be free to take its individual view on the basis of entire facts and circumstance of the case. He submitted that besides that, from the facts and evidence adduced in the case, no case for framing the charge under Section 307, IPC is made out.

8. After hearing the learned Counsel for the parties and careful perusal of the record including various orders passed by the Courts below, I am of the opinion that this revision deserves to be allowed.

9. It is apparent that the Trial Court, i.e., First Additional Sessions Judge, Bhopal, was a Court of co-ordinate jurisdiction with Additional Sessions Judge, who decided the Criminal Revision No. 263/02. Once a finding was recorded by the Competent Court in revision and was not set aside by the Higher Court, that finding became final. Learned Sessions Judge while disposing of the application, filed by any party under Section 409, Cr.PC, was not expected to observe as to what would be the effect of the conclusion and finding recorded by the Revisional Court and further observe that after committal of the case, Trial Court would be free to take its individual view on the basis of entire facts. As a matter of propriety and decency, once a finding was recorded by a Court of Additional Sessions Judge in revision, that should not have been reviewed or undone by another Court of coordinate jurisdiction. Such a practice of reopening the issue, which was finally decided by a Court of co-ordinate jurisdiction and had attained finality, cannot be approved. Learned Trial Court committed error in seeking support from the proposition of law laid down by Apex Court in case of U.J.S. Chopra v. State of Bombay : 1955CriLJ1410 . In case of U.J.S. Chopra (supra), the question was different. In that case, appellant was convicted by the Court of Magistrate and his appeal to High Court was dismissed summarily. After summary dismissal of his appeal, the State Government filed revision application to High Court for enhancement of sentence. Notice was issued to appellant to show cause against enhancement under revisional jurisdiction. The question was whether appellant was entitled to show cause against the conviction under Section 439(6) of the Code of Criminal Procedure, 1898. The Apex Court held that summary dismissal of the appeal preferred by appellant did not preclude him from taking advantage of the provisions of Section 439(6) of the said Code and showing cause against his conviction when he was subsequently called upon to show cause why the sentence imposed on him should not be enhanced. It was further held that there was difference between a case in which the judgment is final qua both the parties and a case when an appeal or revision by accused is summarily dismissed without issuing notice to the State. In later case, the judgment is final only qua the accused, who preferred the appeal or revision. In case of summery dismissal, the judgment not being final qua the State may apply for enhancement of the sentence and if it does, the accused again became entitled to show cause against his conviction also by reason of special provisions of Section 439(6) of the said Code.

10. Apparently, the aforesaid provision is not attracted in the circumstances of the present case, because the learned Revisional Court decided the revision bi-party and its order became final. In case of Hindustan Construction Co. Ltd. and Anr. v. GopalKrishna Sengupta 2003 AIR SCW 2160, Supreme Court held that Section 362 of the Code of Criminal Procedure, 1974 did not permit the Court to alter or review its earlier order, which was a final order.

11. Undoubtedly, when Additional Sessions Judge in Criminal Revision No. 263/02 concluded that the facts of the case, prima facie, disclosed the commission of offence under Section 307, IPC, it was not open to Trial Court (First Additional Sessions Judge, Bhopal) to review or recall that order and to remand the case for trial to Magistrate holding that there was no material for framing charge under Section 307, IPC.

12. The scope of the provisions of Sections 227 and 228 of the Code of Criminal Procedure, which relates to the framing of charge, has been considered in catena of decisions of Apex Court. In case of Rajbir Singh v. State of U.P. and Anr. : 2006CriLJ2458 , the Apex Court reiterated the law laid down in State of Bihar v. Ramesh Singh : 1977CriLJ1606 and held:

Reading (Sections 227 and 228) 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 Section 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 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.

In State of Maharashtra and Ors. v. Somnath Thapa : 1996CriLJ2448 , State by Central Bureau of Investigation v. S. Bangrappa (2001) 1 SCC 369 and State of M.P. v. S.B. John and Ors. (2000) 1 SCC 57, it was held that:

if on the basis of materials on record, a Court could come to the conclusion that commission of the offence is a probable consequence, a case for framing of charge exists. To put it differently, if the Court were to think that the accused might have committed the offence it can frame the charge, though for conviction the conclusion is required to be that the accused has committed the offence. It is apparent that at the stage of framing of a charge, probative value of the materials on record cannot be gone into; the materials brought on record by the prosecution has to be accepted as true at that stage.

13. From perusal of the impugned order passed by the Trial Court, it transpires that it had gone very deep in analyzing and appreciating the evidence and materials produced by the prosecution embarking upon a long drawn enquiry and critical analysis of the evidence at the stage of framing of the charge which is wholly unjustified. The entire approach of the Trial Court appears to be as if it was deciding the case as to whether the accused are guilty or not. It appears that the Trial Court at the stage of framing charge in spite of considering the prima facie case, appreciated and weighed the materials on record to come to conclusion that charge against accused persons could not have been framed. It is settled law that at the stage of framing charge, the Court has to prima facie consider whether there is sufficient ground for proceeding against the accused. The Court is not required to appreciate the evidence and arrive at the conclusion that the material produced are sufficient or not for convicting the accused. If the Court is satisfied that a prima facie case is made out for proceeding further, then a charge has to be framed. In the present case, there is enough material on record to indicate that injured Pritam Prasad and Hukumchand suffered some injuries on their vital parts of the body. Twelve injuries were found on the body of injured Hukumchand. Looking into these aspects of assaults, it cannot, on the face of it, be held at this stage, that accused persons did not at all intend to cause the death of injured.

14. Taking into consideration the overall circumstances of the case, the material on record and the foregoing discussion, I am of the view that this revision deserves to be allowed.

15. Accordingly, this revision is allowed. Impugned order dated 1st of April, 2003, passed by First Additional Sessions Judge, Bhopal, in S.T. No. 329/02 is set aside. Trial Court is directed to frame charge under Section 307/149, IPC, besides other offences, which it may find to be made out from the material on record and proceed with the trial expeditiously.