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1991 Supreme(HP) 9
High Court Of Himachal Pradesh
V.K.MEHROTRA
TARA DATT - Appellant
Versus
STATE OF H.P. - Respondent
Criminal Revision Nos. 21, 22, 23 and 24 of 1990
Decided On : 01/09/1991
For the petitioners:Shri T. R. Chandel, Advocate. For the respondent:Shri Kultar Chand Rana, Advocate.
An order framing a charge against an accused person is not required to be a speaking order disclosing reasons for the opinion that there is ground for presuming that the accused has committed an offence.
Headnote:
CRIMINAL PROCEDURE - Framing of Charge - Order - Speaking Order - Requirement - Interpretation of Provisions - Section 228 and 240, Cr.P.C. - Whether an order framing a charge against an accused person should be a speaking order disclosing reasons for the opinion that there is ground for presuming that the accused has committed an offence.
Fact of the Case:
The applicants, accused persons in Corruption Trial No. 26-S/7 of 198? registered as Criminal Case No 14-S/7 of 1989 came up before the Special Judge, Shimla, on December 31, 1987. On that date the order passed by the learned Judge was; "Office report seen. Heard, Register. I have seen the reports and perused the documents appended with the challan and found that there are sufficient grounds to proceed against the accused. The accused persons be summoned for 22-3-1988."
Finding of the Court:
The Court held that the order of the trial Court directing the framing of charge against the accused-applicants is liable to be set aside as it does not indicate that the Special Judge applied his mind to the relevant aspects of the matter before passing it. The order does not show that it was after due consideration of the material on record.
Issues: 1. Whether an order framing a charge against an accused person should be a speaking order disclosing reasons for the opinion that there is ground for presuming that the accused has committed an offence? 2. Whether the order of the trial Court directing the framing of charge against the accused-applicants is liable to be set aside?
Ratio Decidendi: 1. The Code of Criminal Procedure deals with the question of framing of charge in some of its provisions. The trial before a Court of Session is governed by the provisions contained in Chapter XVIII, section 226, contained therein, says that: "When the accused appears or is brought before the Court in pursuance of a commitment of the case under section 209, the prosecutor shall open his case by describing the charge brought against the accused and stating by what evidence he proposes to prove the guilt of the accused." Section 227 (Discharge) then says: "If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, 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" Section 228 (Framing of charge) provides that t "(1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which (a) is not exclusively triable by the Court of Session, he may frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate, and thereupon the Chief Judicial Magistrate shall try the offence in accordance with the procedure for the trial of warrant-cases instituted on a police report ; (b) is exclusively triable by the Court, he shall frame in writing a charge against the accused, (2)........................" 2. The requirement of recording reasons, while deciding to frame a charge against an accused person, is not enjoined by the Code of Criminal Procedure. The Legislature brought in the requirement of recording of reasons, by enacting the Code of Criminal Procedure, i973, where an order discharging the accused is to be passed by the trial Court It incorporated a similar requirement in respect of dismissal of a complaint under section 203 Cr. P. C. The Legislative intent is clear that no requirement of recording reasons is contemplated where the Court feels that there is ground for presuming that the accused has committed an offence. Obviously, therefore, reasons, as known to law, are not to be recorded in such a case.
Final Decision: The revisions merit dismissal. The record of the trial Court is to be sent back to it for further proceedings in accordance with law.
V. K. Mehrotra, J —The applicants in these Criminal Revisions under sections 397 and 401, Cr. P. C. are facing trial before Special Judge (Forests) Shimla in different criminal cases. Facts giving rise to these criminal revisions are similar. Those in the case of applicant Tara Datt may alone be noticed. The case of the applicants, accused persons in Corruption Trial No. 26-S/7 of 198? registered as Criminal Case No 14-S/7 of 1989 came up before the Special Judge, Shimla, on December 31, 1987. On that date the order passed by the learned Judge was; "Office report seen. Heard, Register. I have seen the reports and perused the documents appended with the challan and found that there are sufficient grounds to proceed against the accused. The accused persons be summoned for 22-3-1988. Sd/- Special Judge, Shimla."
2. The case came up before the Special Judge on several dates thereafter. Not much progress could be made for various reasons. However, the matter was heard on January 4, 1990, on the question whether charge deserved to be framed-against the accused persons The matter was heard the next day too when the Special Judge passed an order, which in its material part reads i "5-1-1990 Present : Shri H. R. Thakur, P. P. for the State. All the accused persons with their Advocates, S/Shri N. S. Thakur, Yadupati Sood and P. N. Lau. I have heard the learned Public Prosecutor and the learned Advocates for the accused and have gone through the record. A prima facie case is made out under sections J20-B, 420, 468 of the Indian Penal Code and section 5 (2) of the Prevention of Corruption Act against all the accused. As such, charge be framed and the case be put up again in the after-noon for putting the charge. Sd/- Special Judge, Shimla. Present: As before. Charge framed, put and explained to the accused. All the accused have pleaded not guilty to the said charge. As such, the case be now put up for prosecution evidence on........."
3. In these revision petitions the order of the Special Judge directing the framing of charge against the accused-applicants has been assailed It has also been prayed that the order be set-aside and the accused-applicants be discharged or in the alternative powers under section 482, Cr. P. C. be exercised by this Court,
4. Shri T. R. Chandel has appeared on behalf of the applicants. Shri K. C. Rana has appeared on behalf of the State of Himachal Pradesh.
5. The submission of Shri Chandel, who has presented the case on behalf of the applicants with ability, basically has been that the order of January 5, 1990, directing the framing of charge against the accused-applicants is liable to be set aside as it does not indicate that the Special Judge applied his mind to the relevant aspects of the matter before passing it. The order does not show that it was after due consideration of the material on record. Order directing the framing of a charge against a person affects such a person substantially and affects his personal liberty It should, therefore, be a speaking order in the sense that it should disclose ex-fade application of mind to the relevant material by the Court, The various facets of the submission would be noticed later.
6. The approach to be adopted by the Court, at the stage when it is considering the question whether the case is such where charge should be framed against an accused person or not, has been indicated by the Supreme Court in several decisions. The Court is not required, at the stage of framing of charge, to consider the evidence and the material in a meticulous manner. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise is not exactly to be applied at this 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, that would be sufficient ground for proceeding against him further. It may proceed to frame charges against hi
