advocatemmmohan

My photo

ADVOCATEMMMOHAN -  Practicing both IN CIVIL, CRIMINAL AND FAMILY LAWS,Etc.,

WELCOME TO LEGAL WORLD

WELCOME TO MY LEGAL WORLD - FOR KNOWLEDGE IN LAW & FOR LEGAL OPINIONS - SHARE THIS

Monday, July 28, 2014

Sec.226,227 and 228 of Cr.P.C.- one out of 3 no charge sheet was filed under sec.302 I.P.C. - but committal court famed charge under sec.302 of I.P.C against this accused too - challanged - high court dismissed the writ for quashing - Apex court held that In this case, it is not alleged that the Sessions Judge has not followed Sections 226 and 227 Cr.P.C before framing the charge. Further, it is not the case of the appellant that the court has not given him hearing at the stage of discharge u/s 227 Cr.P.C. For framing of charge u/s 228, the judge is not required to record detail reasons as to why such charge is framed. On perusal of record and hearing the parties at the stage of discharge u/s 227 Cr.P.C. if the Judge is of opinion that there is ground for presuming that the accused has committed an offence, he is competent to frame charge for such offence even if not mentioned in the charge sheet. We find no merit in this appeal.= DINESH TIWARI … APPELLANT Versus STATE OF UTTAR PRADESH & ANR. … RESPONDENTS = 2014 – July. Part – http://judis.nic.in/supremecourt/filename=41750

 Sec.226,227 and 228 of Cr.P.C.- one out of 3 no charge sheet was filed under sec.302 I.P.C. - but committal court  famed charge under sec.302 of I.P.C against this accused too - challanged - high court dismissed the writ for quashing - Apex court held that In this case, it is not  alleged  that  the  Sessions  Judge  has  not followed Sections 226 and 227 Cr.P.C before framing the charge. Further,  it is not the case of the appellant that the court has not  given  him  hearing at the stage of discharge u/s 227 Cr.P.C. For framing  of  charge  u/s  228, the judge is not required to record detail reasons as to why such charge  is framed. On perusal of record  and  hearing  the  parties  at  the  stage  of discharge u/s 227 Cr.P.C. if the Judge is of opinion that  there  is  ground for presuming that the accused has committed an offence, he is competent  to frame charge for such offence even if not mentioned in the charge sheet.  We find no merit in this appeal.=


  CBCID  submitted
charge sheet against Sadhu Saran Yadav co-accused for the offence  u/s  302,
323,  504  and  506  IPC. 
 It  was  mentioned  in  the  charge  sheet   that
investigation shall continue against rest of the accused  persons.  The  CJM
took cognizance of the offence vide order dated 8th  May,  2006.  
The  case
was committed to the Court of  Sessions  and  was  registered  as  S.T.  No.
149/2006 titled State v. Sadhu Saran Yadav.
Thereafter, CBCID submitted  the
charge sheet against Ram Vijay Yadav for the offence u/s 302, 323,  504  and
506 IPC and as against the appellant for the offence u/s 323,  504  and  506
IPC.  No charge sheet was submitted against the appellant  for  the  offence
u/s 302 IPC. 
The cognizance was taken by CJM on charge sheet no.5A  of  2006
on 23rd January, 2007.  Bail was granted to the appellant  for  the  offence
u/s 323, 504 and 506 IPC.
The case was committed to the Court  of  Sessions
by the CJM after taking cognizance and  the  Sessions  Court  framed  charge
against the appellant for the offence u/s 302 IPC, apart from  Section  323,
504 and 506 IPC.=

High court order 
The  aforesaid  order  was  challenged  by  the  appellant  by  filing
criminal miscellaneous application u/s 482 Cr.P.C. for  quashing  the  order
framing the charge u/s 302 IPC. The High  Court  by  impugned  judgment  and
order dated 11th December, 2007 dismissed the same.=
Apex court held that
We may refer to  the  well-settled
law laid down by this Court in State of Bihar v. Ramesh Singh: (SCC pp.  41-
42, para 4)
“4.  Under  Section  226  of  the  Code  while  opening  the  case  for  the
prosecution the Prosecutor has  got  to  describe  the  charge  against  the
accused and state by what evidence he proposes to prove  the  guilt  of  the
accused.
Thereafter comes at the initial stage the  duty  of  the  court  to
[pic]consider the record of the case and the documents  submitted  therewith
and to hear the submissions of the  accused  and  the  prosecution  in  that
behalf.
The Judge has to pass thereafter an order either under  Section  227
or Section 228 of the Code.
If  ‘the  Judge  considers  that  there  is  no
sufficient ground for proceeding against the  accused,  he  shall  discharge
the accused and record his reasons for so doing’,  as  enjoined  by  Section
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  Section  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 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  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.  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  [pic]situation  ordinarily  and
generally the order which will have to be made will  be  one  under  Section
228 and not under Section 227.”


11.   In this case, it is not  alleged  that  the  Sessions  Judge  has  not
followed Sections 226 and 227 Cr.P.C before framing the charge. Further,  it
is not the case of the appellant that the court has not  given  him  hearing
at the stage of discharge u/s 227 Cr.P.C. For framing  of  charge  u/s  228,
the judge is not required to record detail reasons as to why such charge  is
framed. On perusal of record  and  hearing  the  parties  at  the  stage  of
discharge u/s 227 Cr.P.C. if the Judge is of opinion that  there  is  ground
for presuming that the accused has committed an offence, he is competent  to
frame charge for such offence even if not mentioned in the charge sheet.  We
find no merit in this appeal. The appeal is accordingly dismissed.

2014 – July. Part – http://judis.nic.in/supremecourt/filename=41750


                                                                REPORTABLE
                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO.1365 OF 2014
                  (Arising out of SLP (CRL.) No.3051/2008)


DINESH TIWARI                                       … APPELLANT

                                   Versus


STATE OF UTTAR PRADESH & ANR.                  … RESPONDENTS



                               J U D G M E N T


SUDHANSU JYOTI MUKHOPADHAYA, J.


      Leave granted.

2.    This appeal is directed against the  judgment  and  order  dated  11th
December, 2007 passed by the  High  Court  of  Judicature  at  Allahabad  in
Criminal Miscellaneous  Application  No.26878  of  2007.   By  the  impugned
judgment, the High Court dismissed the application filed by  the  appellant-
accused u/s 482 Cr.P.C for quashing the  order  dated  1st  September,  2007
passed by the Additional Sessions Judge/F.T.C No.3, Basti in Sessions  Trial
No.207/07 in State  v.  Ram  Vijay  Yadav  etc.   By  the  said  order,  the
Additional Sessions Judge framed the charge  against  the  appellant-accused
for the offence u/s 302, 323, 504 and 506 IPC.

3.    The factual matrix of the case is as under:

      One Mahender Prasad Tiwari  complainant  lodged  an  FIR  against  the
present appellant-Dinesh Tiwari, Sadhu Saran and Ram  Vijay  Yadav  for  the
offence u/s 302, 323, 504 and 506 IPC in  Police  Station  Mahuli,  District
Sant Kabir Nagar. It was registered as  Crime  No.84/2006.  It  was  alleged
that the appellant along with Sadhu Saran committed murder of  Arvind  Kumar
Tiwari son of the complainant.  Reasons  for  enmity  and  detail  event  of
murder were mentioned in the FIR.

      Police started the investigation but subsequently,  on  the  order  of
the Government the investigation was transferred to CBCID.  CBCID  submitted
charge sheet against Sadhu Saran Yadav co-accused for the offence  u/s  302,
323,  504  and  506  IPC.  It  was  mentioned  in  the  charge  sheet   that
investigation shall continue against rest of the accused  persons.  The  CJM
took cognizance of the offence vide order dated 8th  May,  2006.   The  case
was committed to the Court of  Sessions  and  was  registered  as  S.T.  No.
149/2006 titled State v. Sadhu Saran Yadav. Thereafter, CBCID submitted  the
charge sheet against Ram Vijay Yadav for the offence u/s 302, 323,  504  and
506 IPC and as against the appellant for the offence u/s 323,  504  and  506
IPC.  No charge sheet was submitted against the appellant  for  the  offence
u/s 302 IPC. The cognizance was taken by CJM on charge sheet no.5A  of  2006
on 23rd January, 2007.  Bail was granted to the appellant  for  the  offence
u/s 323, 504 and 506 IPC.  The case was committed to the Court  of  Sessions
by the CJM after taking cognizance and  the  Sessions  Court  framed  charge
against the appellant for the offence u/s 302 IPC, apart from  Section  323,
504 and 506 IPC.

4.    The  aforesaid  order  was  challenged  by  the  appellant  by  filing
criminal miscellaneous application u/s 482 Cr.P.C. for  quashing  the  order
framing the charge u/s 302 IPC. The High  Court  by  impugned  judgment  and
order dated 11th December, 2007 dismissed the same.

5.    Counsel for the appellant has made the following submissions:

(a) Appellant-accused was not given an opportunity  of  being  heard  before
framing of the charge u/s 302 IPC.

(b) Neither any charge sheet  was  submitted  by  the  investigating  agency
against the appellant for the offence u/s 302 IPC  nor  any  cognizance  was
taken by the CJM against him for the said offence. But Sessions Judge  after
committal framed the charge u/s 302 IPC which was not permissible.

6.    Per contra, according to learned counsel for  the  respondents,  there
is ample material on record to show that  the  appellant  along  with  Sadhu
Saran committed murder of Arvind Kumar Tiwari son  of  the  complainant  and
hence the Trial Court rightly framed the charge u/s 302 IPC.

7.    Chapter  XVIII  of  Cr.P.C.  deals  with  “Trial  before  a  Court  of
Session”.  As per Section 226, when the accused  person  is  brought  before
the Court in pursuance of a commitment of the case u/s 209,  the  prosecutor
is required to open his case by describing the charge  brought  against  the
accused and stating by what evidence he proposes to prove his guilt  of  the
accused.

8.    Section 227 deals with Discharge and it reads as follows:

“227. Discharge.-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.”



As per the aforesaid provision, upon consideration of  the  records  of  the
case  and  the  documents  submitted  before  him  and  after  hearing   the
submissions of the party accused and the prosecution if the Judge is of  the
opinion that no sufficient  ground  is  made  out  to  proceed  against  the
accused, he is required to discharge the accused and record his reasons  for
doing so.

9.    Section 228 relates to framing of charge as follows:

“228.Framing of charge.-(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-

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 (or any other Judicial Magistrate  of  the  first  class
and direct the accused to appear before the Chief Judicial  Magistrate,  or,
as the case may be, the Judicial Magistrate of  the  first  class,  on  such
date as he deems fit, and thereupon such Magistrate] shall try  the  offence
in accordance with the procedure for the trial of  warrant-cases  instituted
on a police report;

is exclusively triable by the Court, he shall  frame  in  writing  a  charge
against the accused.

(2) Where the Judge frames any charge under clause (b) of  sub-section  (1),
the charge shall be read and explained to the accused and the accused  shall
be asked whether he pleads guilty of the offence charged  or  claims  to  be
tried.”



From  sub  Section  (1)  of  Section  228,  it  is  clear  that  after  such
consideration and hearing, as given under Section 227,  if  Judge  forms  an
opinion that there is a ground for presuming that the accused has  committed
an offence, Judge may frame the charge(s).

From Section 228 it is clear that no separate  hearing  is  required  to  be
given for  framing  the  charge  if  the  accused  is  not  discharged  upon
consideration of the record of the case and documents and after hearing  the
submissions under Section 227.

10.   Relative scope of  Sections  227  and  228  Cr.P.C.  was  noticed  and
considered by this Court in Amit  Kapoor  v.  Ramesh  Chander  and  another,
(2012) 9 SCC 460.  This Court held as follows:

“17. Framing of a charge is an exercise of jurisdiction by the  trial  court
in terms of Section 228 of the Code, unless the accused is discharged  under
Section 227 of the Code. Under both these provisions, the court is  required
to consider the “record of the case” and documents submitted therewith  and,
after hearing the parties, may either discharge  the  accused  or  where  it
appears to the court and in its opinion there is ground for  presuming  that
the accused has committed an offence, it shall frame the  charge.  Once  the
facts and ingredients of the section exists, then the court would  be  right
in presuming that there is ground to proceed against the accused  and  frame
the charge accordingly. This presumption is not  a  presumption  of  law  as
such. The satisfaction  of  the  court  in  relation  to  the  existence  of
constituents of an offence and the facts leading to that offence is  a  sine
qua non for exercise of such jurisdiction. It may  even  be  weaker  than  a
prima facie case. There is  a  fine  distinction  between  the  language  of
Sections 227 and 228 of the  Code.  Section  227  is  the  expression  of  a
definite opinion and judgment of the Court while Section 228  is  tentative.
Thus, to say that at the stage of framing of charge, the Court  should  form
an opinion that the accused is certainly guilty of  committing  an  offence,
is an approach which is impermissible in terms of Section 228 of the Code.”

“19. At the initial stage of framing of a charge,  the  court  is  concerned
not with proof but with a strong suspicion that the  accused  has  committed
an offence, which, if put to trial, could prove him  guilty.  All  that  the
court has to see is that the material on  record  and  the  facts  would  be
compatible with the innocence of the accused  or  not.  The  final  test  of
guilt is not to be applied at that stage. We may refer to  the  well-settled
law laid down by this Court in State of Bihar v. Ramesh Singh: (SCC pp.  41-
42, para 4)
“4.  Under  Section  226  of  the  Code  while  opening  the  case  for  the
prosecution the Prosecutor has  got  to  describe  the  charge  against  the
accused and state by what evidence he proposes to prove  the  guilt  of  the
accused. Thereafter comes at the initial stage the  duty  of  the  court  to
[pic]consider the record of the case and the documents  submitted  therewith
and to hear the submissions of the  accused  and  the  prosecution  in  that
behalf. The Judge has to pass thereafter an order either under  Section  227
or Section 228 of the Code.  If  ‘the  Judge  considers  that  there  is  no
sufficient ground for proceeding against the  accused,  he  shall  discharge
the accused and record his reasons for so doing’,  as  enjoined  by  Section
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  Section  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 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  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.  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  [pic]situation  ordinarily  and
generally the order which will have to be made will  be  one  under  Section
228 and not under Section 227.”


11.   In this case, it is not  alleged  that  the  Sessions  Judge  has  not
followed Sections 226 and 227 Cr.P.C before framing the charge. Further,  it
is not the case of the appellant that the court has not  given  him  hearing
at the stage of discharge u/s 227 Cr.P.C. For framing  of  charge  u/s  228,
the judge is not required to record detail reasons as to why such charge  is
framed. On perusal of record  and  hearing  the  parties  at  the  stage  of
discharge u/s 227 Cr.P.C. if the Judge is of opinion that  there  is  ground
for presuming that the accused has committed an offence, he is competent  to
frame charge for such offence even if not mentioned in the charge sheet.  We
find no merit in this appeal. The appeal is accordingly dismissed.


                                                        ………………………………………………J.
  (SUDHANSU JYOTI MUKHOPADHAYA)


                                                        ………………………………………………J.
                                  (V. GOPALA GOWDA)

NEW DELHI,
JULY 07, 2014.

No comments:

Post a Comment

Note: Only a member of this blog may post a comment.