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CASE NO.:

Appeal (crl.) 5 of 2000

PETITIONER:

KANTI BHADRA SHAH AND ANR.

RESPONDENT:

STATE OF WEST BENGAL

DATE OF JUDGMENT: 05/01/2000

BENCH:

K,T. THOMAS & D.P. MOHAPATRA

JUDGMENT:

JUDGMENT

2000 (1) SCR 27

The Judgment of the Court was delivered by THOMAS, J.

Leave granted.

Though the appellants succeeded in the High Court their grievance still

persists as they are not out of woods now. Appellants approached the High

Court to quash the charge framed against them by a Metropolitan Magistrate.

The High Court quashed it, but directed the Magistrate to consider again

whether the same charges could be framed against appel-lants afresh.

We heard learned counsel for the appellants, but we did not find it

necessary to hear the sole respondent (State of West Bengal) as this appeal

can be disposed of even without the aid of such arguments.

On the basis of a complaint lodged with the Police Station, Burra Bazar

(Calcutta) an investigation was conducted by the police and the charge

sheet was filed before the Metropolitan Magistrate, Calcutta, against

appellants and some other persons for offences under Sections 454, 380 and

120B of the Indian penal Code, The Magistrate issued process to the accused

and after hearing them a charge was framed against them for the said

offences. While framing the charge the Magistrate had as per order dated

63.1999, dismissed the petition filed by the accused for dis-charging them.

Appellants thereafter moved the High Court for quashing the charge.

The Metropolitan Magistrate who framed the charge opted to write a short

order presumably for dismissing the petition Filed by the appellants for

discharging them. The Magistrate stated in the order thus ;

The Investigating Officer has submitted charge sheet against the four

accused persons after completion of the investigation under Sections 454,

380, 120B I.P.C. Hence prima facie the case is established against the

accused persons under those Sections. There is nothing on behalf of the

accused persons save and except a petition."

A learned Single Judge of the High Court who set aside the aforesaid order

remarked that it was not discernible from the order of the Magistrate that

he had taken into consideration the charge-sheet and the other papers

submitted therewith for satisfying himself as to whether there is a prima

fade case against the accused persons for the aforesaid offences. This is

what the learned Single Judge observed :

"It is true that the language in which the impugned order is passed is not

happy one. That I am not sure whether the learned Magistrate applied his

mind to the facts and circumstances of the case and took the pain to

satisfy himself from the materials dis-closed by the charge sheet and other

papers submitted therewith as to whether a prima facie case was made out

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against the accused persons for framing charges under the aforesaid penal

provisions."

After observing thus learned Single Judge expressed his helplessness in

supporting the order framing charges against the appellants. The

Metropolitan Magistrate was thereupon directed to peruse the charge-sheet

along with other papers submitted to him and satisfy himself again as to

the existence of a prima fade case against the accused. The further

directions given by the learned Single Judge reads thus :

"If he decides to frame charge upon such satisfaction based on perusal of

the charge-sheet and other papers submitted therewith, the learned

Magistrate must record the fact of such perusal and his satisfaction, only

then he shall proceed to frame the charge. If on the other hand upon

perusal of the aforesaid documents the learned Magistrate finds that the

papers do not disclose my prima fade case against the petitioner for

framing charges, it shall be open to him to discharge the petitioners from

the case."

We wish to point out that if the trial court decides to frame a charge

there is no legal requirement that he should pass an order specifying the

reasons as to why he opts to do so. Framing of charge itself is prima facie

order that the trial judge has formed the opinion, upon consideration of

the police report and other documents and after hearing both sides, that

there is ground for presuming that the accused has committed the offence

concerned. Chapter XIX deals with provisions for trial of warrant cases

instituted on police report. Section 239 reads thus :

"239. When accused shall be discharged. - (1) If, upon considering the

police report and the documents sent with it under section 173 and making

such examination, if any, of the accused as the Magistrate thinks necessary

and after giving the prosecution and the accused an opportunity of being

heard, the Magistrate con-siders the charge against the accused to be

groundless, he shall discharge the accused, and record his reasons for so

doing." The said Section shows that the Magistrate is obliged to record his

reasons if he decides to discharge the accused. The next section (Section

240) reads thus :

"240, Framing of charge - (1) If, upon such consideration, examina-tion, if

any, and hearing, the Magistrate is of opinion that there is ground for

presuming that the accused has committed an offence triable under this

Chapter, which such Magistrate is competent to try and which, in his

opinion, could be adequately punished by him, he shall frame in writing a

charge against the accused.

(2) The charge shall then be read and explained to the accused, and he

shall be asked whether he pleads guilty of the offence charged or claims to

be tried."

It is pertinent to note that this section required a Magistrate to record

his reasons for discharging the accused but there is no such requirement if

he forms the opinion that there is ground for presuming that the accused

had committed the offence which he is competent to try. In such a situation

he is only required to frame a charge in writing against the accused.

Even in cases instituted otherwise than on police report the Magistrate is

required to write an order showing the reasons only if he is to discharge

the accused. This is clear from Section 245. As per first sub-section of

Section 245, if a magistrate, after taking all the evidence considers that

no case against the accused has been made out which if unrebutted would

warrant his conviction, he shall discharge the accused. As per sub-section

(2) the Magistrate is empowered to discharge the accused at any previous

stage of the case if he considers the charge to be groundless. Under both

sub-sections he is obliged to record his reasons for doing so. In this

context it is pertinent to point out that even in a trial before a court of

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session, the judge is required to record reasons only if he decides to

discharge the accused. (vide Section 227 of the Code). But if he is to

frame the charge he may do so without recording his reasons for showing why

he framed the charge.

If there is no legal requirement that the trial court should write an order

showing the reasons for framing a charge, why should the already burdened

trial Courts be further burdened with such an extra work. The time has

reached to adopt all possible measures to expedite the the court procedures

and to chalk out measures to avert all roadblocks causing avoidable delays.

If a Magistrate is to write detailed orders at different stages merely

because the counsel would address arguments at all stages, the snail paced

progress of proceedings in trial courts would further be slowed down. We

are coming across interlocutory orders of Magistrates and Sessions Judges

running into several pages. We can appreciate if such a detailed order has

been passed for culminating the proceedings before them. But it is quite

unnecessary to write detailed orders at other stages, such as issuing

process, remanding the accused to custody, framing of charges, passing over

to next stage in the trial. It is a salutary guideline that when orders

rejecting or granting bail are passed, the Court should avoid expressing

one way or other on contentious issues, except in cases such as those

falling within Section 37 of the Narcotic Drugs and Psychotropic Substances

Act, 1985.

In the present case as the Metropolitan Magistrate has chosen to frame the

charge, the High Court, when moved by the accused for quash-ment of the

charge, could have re-examined the records to consider whether the charge

framed was sustainable or not. If the High Court decides to quash the

charge it is open to the High Court to record the reasons thereof. The

present order of the High Court is one of setting aside the charge without

stating any reason. But the direction to the Magistrate to consider the

materials once again and then to frame a charge for the same offence (if

the Magistrate reaches the opinion that there is ground for presuming the

commission of offence) is simply to repeat what the Metropolitan Magistrate

had done once at the first instance. To ask him to do the same thing over

again is adding an unnecessary extra work on the trial court. Be that as it

may, the State has not challenged the order of the High Court. Hence we are

not in a position to set aside the impugned order of the High Court. We

leave the order as such by making the aforestated observations. We leave it

to the Metropolitan Magistrate to exercise his functions under Section 239

or 240 of the Code as he deems Fa in the light of the observations made

above.

The appeal is accordingly dismissed.