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Supreme Court of India
THE HONOURABLE MR. JUSTICE TARUN CHATTERJEE & THE HONOURABLE MR. JUSTICE V.S. SIRPURKAR
Ajoy Kumar Ghose
Versus
State of Jharkhand & Another
Criminal Appeal No.485 of 2009 (Arising out of SLP (CRL.) No.5196 of 2006)
Decided on : 18-03-2009
1984 Cri LJ 513; 1994 Cri LJ 1555; AIR1928 Madras 129; 1979 Cri LJ 446 – Cited with approval
(b) Code of Criminal Procedure, 1973 – Section 246 – Framing of charge – Trial court not having any material before it except the complaint filed by a court not supported by any statement on oath – Dismissing application for discharge and straightway proceeding to frame charge – Not permissible – Charge can be framed on the basis of even a single evidence but not without any evidence – Impugned order quashed. (Para 21, 26, 27)
(c) Code of Criminal Procedure, 1973 – Section 245 and 246 – Expression "or at any previous stage of the case" – Would not have same meaning in both sections. (Para 24)
1979 Cri LJournal 390; 1968 Cri LJ 303; AIR 1967 Madras 262; AIR 1964 Andhra Pradesh 226; 1990 Cri LJ 762 – Cited with approval
1999 Cri LJournal 4206; (2005) 4 SCC 370 – Referred
Facts of the case:
The appellant Ajoy Kumar Ghosh, along with some others, is facing prosecution for the offences under Sections 177, 181, 182, 192, 196, 199, 209, 466, 468, 471 and 474 of the Indian Penal Code, before the Chief Judicial Magistrate, Ranchi. These charges are based on an official complaint filed by the Registrar General, Patna High Court against these accused persons including the present appellant, who, at the relevant time was Director, Indian School of Mines, Dhanbad.
Cognizance was taken on the basis of this complaint by an order dated 20.08.1999 and summons were ordered to be issued by the CJM, Ranchi.
The appellant appeared before the CJM, Ranchi on 11.07.2005 and obtained bail. Thereafter, he moved an application for discharge on the same date which was dismissed in limine.
The petitioner, therefore, filed a Writ Petition (Crl.) challenging the order dismissing discharge application and the order framing charge, before the High Court of Jharkhand at Ranchi which was dismissed
Finding of the Court:
Impugned judgment cannot be sustained.
Result:
Appeal allowed. Matter remitted back.
Key Points: - The judgment discusses the distinction between warrant trials instituted on police reports vs. otherwise than on police reports, and the necessity of leading evidence before framing a charge (!) (!) (!) . - It analyzes the procedure and timing for discharge under Section 245(2) Cr.P.C., including that discharge can occur at any previous stage, even before evidence is led, and the need for a reasoned order (!) (!) (!) . - It examines the conditions for framing a charge under Section 246(1) Cr.P.C., clarifying that framing typically follows evidence under Section 244(1), but the phrase "at any previous stage" may permit earlier framing only with some evidentiary basis, and emphasizes that there must be some evidence on record before charging (!) (!) (!) (!) . - The text outlines the procedural differences and the prosecution’s opportunity to lead evidence before and after charge in warrant trials (!) (!) . - It notes the necessity of cross-examination opportunities and the impact of premature framing of charges on fair trial rights (!) (!) . - The conclusion directs returning the matter for prosecution to lead evidence under Section 244(1) and then reconsider framing of the charge, indicating the charge framed prematurely is to be quashed (!) .
Judgment :-
V.S. Sirpurkar, J.
1. Leave granted.
2. A judgment passed by the High Court of Jharkand, Ranchi, dismissing the writ petition and confirming the order of the Trial Court, refusing to discharge the accused-appellant, is in challenge here.
3. The appellant Ajoy Kumar Ghosh, along with some others, is facing prosecution for the offences under Sections 177, 181, 182, 192, 196, 199, 209, 466, 468, 471 and 474 of the Indian Penal Code (hereinafter referred to as ‘IPC for short), before the Chief Judicial Magistrate, Ranchi. These charges are based on an official complaint filed by the Registrar General, Patna High Court against these accused persons including the present appellant, who, at the relevant time was Director, Indian School of Mines, Dhanbad. In the said complaint it is, inter alia, contended:
(i) That one Shri M.S. Chhabra, who was the Assistant Professor in the Indian School of Mines, Dhanbad, was proceeded against for misconduct and accordingly punishment of compulsory retirement was imposed on him.
(ii) Indian School of Mines, Dhanbad, a registered Society, is a deemed university governed by the Rules & Regulations and bye-laws of the School. In the matter of classification and method of appointment and terms and conditions of service for academic staff, Rules are framed with the approval of the Central Government. Rule 4 of the Rules & Regulations prescribes the constitution of General Council. The classification and method of appointment are governed by the bye-laws. Selection to the post of Assistant Professor is governed by Clause 38(b), while suspension and penalties are governed by Clauses 10 and 11 of the said bye-laws. Appeal is provided against the same under Rule 12. It is further stated in the complaint that the Council is defined under Clause 2(b) of the said bye-laws and means a General Council constituted under Rule 4 of the Rules & Regulations.
(iii) That Shri M.S.Chhabra, after being found guilty, was awarded the punishment of compulsory retirement and he preferred an appeal to the General Council against the imposed penalty, which appeal was disallowed. Shri M.S.Chhabra, therefore, filed CWJC No.678/92(R) for quashing the said order. However, even that was disposed of by the High Court with a direction to the General Council of the School to give personal hearing to the appellant/petitioner and to dispose of the appeal thereafter. Against this order of the High Court, the Chairman, Director-in-Charge and Acting Registrar, namely, Shri B.K. Rao, Shri A.K. Ghosh and Shri M. Ramakrishna, respectively, preferred an appeal in Supreme Court, which directed expeditious decision within three months after the fresh appeal was filed by Shri M.S. Chhabra. However, since the appeal was not disposed of, Shri M.S.Chhabra filed another writ petition which was registered as CWJC No.2932/92(R) and alleged therein that on 31.03.1989, no Head of the Department was the member of the General Council and without observing the procedure of amendment to the Rules as laid down under Section 23, mischievous efforts had been made by the Chairman, Director and the Registrar for getting new sets of Rules registered under the Societies Registration Act. He further alleged that services of one Shri A.K. Singh, Estate-cum-Security Officer were availed of for liaison work and thus the amendment was without the resolution of the General Council and without the approval of the Government of India, in which Heads of Department as member of the General council were included and that resolution of the General Council for revised Memorandum of Association and Rules & Regulations were made to appear as if they were registered with the Inspector General of Registration, Patna on 18.06.1992. He further stated that the Chairman, Director and the Registrar, by indulging in the case maliciously, were acting under utter violation of procedure laid down under Section 23 of the Societies Registration Act.
(iv) That the counter affidavit
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