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CASE NO.:

Appeal (crl.) 304 of 2001

PETITIONER:

SMT.OM WATI & ANR.

Vs.

RESPONDENT:

STATE, THROUGH DELHI ADMN. & ORS.

DATE OF JUDGMENT: 19/03/2001

BENCH:

K.T. Thomas & R.P. Sethi

JUDGMENT:

SETHI,J.

Leave granted.

L...I...T.......T.......T.......T.......T.......T.......T..J

The present case reflects and demonstrates the abuse of

the process of the court by the accused persons who have

succeeded in protracting the commencement of trial against

them for about a decade. The accused have left no stone

unturned to exploit the procedural wrangles to defeat the

ends of justice. A learned Single Judge of the High Court

of the Delhi appears to have fallen a prey to the

procrastinative designs of the accused-respondent, as is

evident from the cryptic order passed on 29th August, 2000

which is impugned in this appeal by special leave filed by

the mother of the deceased after seeking permission from

this Court. The impugned order not only reflects the non

application of mind by the learned Single Judge of the High

Court while discharging the respondents for the offence

punishable under Section 302 of the Indian Penal Code but

also demonstrates the ignoring of the correct position of

law applicable on the point and catena of judgments

pronounced by this Court on the subject.

The facts of the case are that in an occurrence which

took place on 6.9.1991, Rajesh Kumar, the son of the

appellant was beaten to death by the accused persons who

were alleged to have attacked him with weapons like Hockey

Sticks, Lathis and Iron Chain of Bullet Motorcycle. The

accused persons are stated to have been arrested after some

days and their application for bail was dismissed by the

trial court on 23rd December, 1991. The Additional Sessions

Judge, being the trial court framed charges against all the

accused persons on 16.7.1992 against which a petition was

filed in the High Court. It is not clear but it is admitted

that meanwhile the accused were released on bail by the High

Court. The Criminal Revision No.97 of 1992 filed by the

respondents was disposed of by the High Court after four

years by quashing charges framed with direction to the trial

court to pass "an order delineating reasons in sufficient

detail to lend assurance to the accused, the public and the

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court that sufficient judicial thought is at its back".

Again on 4.2.1998, the trial court as per a detailed order

directed the framing of charges against the accused persons

under Sections 302, 147, 148 read with Section 149 of the

Indian Penal Code. The accused respondents who were on bail

again ventured to accomplish their design of frustrating the

judicial process by filing a Revision Petition No.87 of 1998

which has been disposed of by the High Court as per the

following order:

"Head learned counsel for the petitioners as also

learned counsel for the State and perused the documents on

record, in particular, the post-mortem report, I am of the

view that the charge under Section 302 IPC cannot be made

out. In this view of the matter, I quash the charge framed

under Section 302 IPC and direct the trial court to re-frame

the charge in accordance with law based upon material on

record. The revision petition is allowed."

While issuing notice on 11.12.2000, we suspended the

impugned order of the High Court and directed the trial

court to proceed with the case. We further directed the

trial court to permit the counsel of the mother of the

deceased to assist the Public Prosecutor if any application

is filed in that behalf.

Justifying the impugned order Shri Ranjit Kumar, learned

Senior Counsel argued that as there was no evidence, worth

the name to connect the accused with the commission of the

crime, the High Court was justified in passing the order.

He, however, was frank in conceding that the order passed by

the High Court was not a speaking order. It was contended

on behalf of the accused persons that as the post-mortem

report did not indicate any head injury on the deceased and

the doctors had further opined that "the death in this case

is possibly by hepatic failure following riral hapatites",

there was no necessity of putting the accused to trial.

Learned counsel, however, has been very cautious not to

argue on merits and rightly so because any comment by us on

the merits is likely to prejudice the case of the accused or

the prosecution.

Before dealing with the position of law, some facts are

necessary to be noticed at this stage. As per the FIR

lodged by the appellant on 7.9.1991, the deceased had

objected to the conduct of accused Balraj, Narender and

Vijay for having an evil eye on his cousin sister whom the

aforesaid three accused used to tease and abuse whenever

they got the opportunity. The deceased was subjected to the

beating by the aforesaid accused persons in the month of

July, 1991 regarding which a report was lodged with the

police. After knowing about the beating of his son on the

day of occurrence, the appellant is stated to have rushed to

the spot where her son told that accused Balraj had given a

Hockey blow on his head, accused Narender had given beating

with chain of Bullet Motorcycle and accused Vijay assaulted

him with a lathi on the instigation of other accused

persons. Statement of one Ashok Kumar, under Section 161 of

the Code of Criminal Procedure (hereinafter referred to as

"the Code"), who claimed to be an eye-witness, was recorded

by the police on 7.9.1991 wherein he had supported what the

appellant had stated about the infliction of injuries on her

son. The accused persons and the deceased were arrested by

the Police under Sections 107/151 of the Code. As he was

beaten by the accused persons, the deceased complained of

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pain on all parts of his body which necessitated his

admission in Deen Dayal Upadyay Hospital wherefrom he was

referred to Ram Manohar Lohia Hospital, where he died at

about 5 a.m. on 7.9.1991. After investigation, the final

report was submitted against the accused persons who were

charged by the trial court by passing a detailed order

firstly on 23rd December, 1991 and after remand on 4.2.1998.

The trial court dealt with all the arguments addressed

before it and held that prima facie there was sufficient

evidence to frame charges against the accused persons under

various sections of the IPC as noticed hereinabove.

Section 227 of the Code provides that if upon

consideration of record of the case and the documents

submitted therewith, the Judge considers that there is no

sufficient ground for proceeding against the accused, he

shall discharge the accused for which he is required to

record his reasons for so doing. No reasons are required to

be recorded when the charges are framed against the accused

persons. This Court in Kanti Bhadra Shah & Anr. vs. State

of West Bengal [2000 (1) SCC 722] held that there is no

legal requirement that the trial court should write an order

showing the reasons for framing a charge. Taking note of

the burden of the pending cases on the courts, it wa s held:

"Even in cases instituted otherwise than on a 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 the 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 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 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 this

stage, such as issuing process, remanding the accused to

custody, framing of charges, passing over to next stages 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 the other on contentious issues,

except in cases such as those falling within Section 37 of

the Narcotic Drugs and psychotropic Substances Act, 1985".

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At the stage of passing the order in terms of Section

227 of the Code, the Court has merely to peruse the evidence

in order to find out whether or not there is a sufficient

ground for proceeding against the accused. If upon

consideration, the court is satisfied that a prima facie

case is made out against the accused, the Judge must proceed

to frame charge in terms of Section 228 of the Code. Only

in a case where it is shown that the evidence which the

prosecution proposes to adduce to prove the guilt of the

accused, even if fully accepted before it is challenged in

cross-examination or rebutted by defence evidence cannot

show that the accused committed the crime, then and then

alone the court can discharge the accused. The court is not

required to enter into meticulous consideration of evidence

and material placed before it at this stage. This Court in

Stree Atyachar Virodhi Parishad vs. Dilip Nathumal Chordia

& Anr. [1989 (1) SCC 715] cautioned the High Courts to be

loathe in interfering at the stage of framing the charges

against the accused. Self-restraint on the part of the High

Court should be the rule unless there is a glaring injustice

staring the court in the face. The opinion on many matters

can differ depending upon the person who views it. There

may be as many opinions on a particular point, as there are

courts but that would not justify the High Court to

interdict the trial. Generally, it would be appropriate for

the High Court to allow the trial to proceed.

Dealing with the scope of Sections 227 and 288 of the

Code and the limitations imposed upon the court at the

initial stage of framing the charge, this Court in State of

Bihar vs. Ramesh Singh [AIR 1977 SC 2018] held:

"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 this stage of

deciding the matter under S.227 or S.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

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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, if any, cannot show that the

accused committed the offence, there 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 S.227 or S.228, then in such a situation

ordinarily and generally the order which will have to be

made will be one under S.228 and not under S.227."

A three-Judge Bench of this Court in Supdt. &

Remembrancer of Legal Affairs, West Bengal vs. Anil Kumar

Bhunja & Ors. [AIR 1980 SC 52] reminded the courts that at

the initial stage of framing of charges, the prosecution

evidence does not commence. The Court has, therefore, to

consider the question of framing the charges on general

considerations of the material placed before it by the

investigating agency. At this stage, the truth, veracity

and effect of the judgment which the prosecution proposes to

adduce are not to be meticulously judged. The standard of

test, proof and judgment which is to be applied finally

before finding an accused guilty or otherwise is not exactly

to be applied at the stage of framing the charge. Even on

the basis of a strong suspicion founded on materials before

it, the court can form a presumptive opinion regarding the

existence of factual ingredients constituting the offence

alleged and in that event be justified in framing the

charges against the accused in respect of the commission of

the offence alleged to have been committed by them. Relying

upon its earlier judgements in Ramesh Singh and Anil Kumar

Bhunja's cases (supra) this Court again in Satish Mehra vs.

Delhi Administration [1996 (9) SCC 766] reiterated:

"Considerations which should weigh with the Sessions

Court at this stage have been well designed by Parliament

through Section 227 of the Code of Criminal Procedure (for

short 'the Code') which reads thus:

"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."

Section 228 contemplates the stage after the case

survives the stage envisaged in the former section. When

the court is of opinion that there is ground to presume that

the accused has committed an offence the procedure laid down

therein has to be adopted. When those two sections are put

in juxtaposition with each other the test to be adopted

becomes discernible: Is there sufficient ground for

proceeding against the accused? It is axiomatic that the

standard of proof normally adhered to at the final stage is

not to be applied at the stage where the scope of

consideration is where there is "sufficient ground for

proceeding".

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The trial court, in the instant case, rightly held that

merely on account of the observations and the opinion

incorporated in the post- mortem report, the prosecution

could not be deprived of its right to prove that accused

were guilty of the offence for which the final report had

been filed against them. There was no ground for the High

Court to interfere with the well reasoned order of the trial

court by passing a cryptic and telegraphic order which is

impugned in this appeal. It is not safe, at this stage, to

deprive the prosecution in proving its case on the basis of

the direct evidence, the statement of the deceased claimed

to be admissible under Section 32 of the Evidence Act and

the other documents including the inquest report allegedly

disclosing the infliction of injuries on the person of the

deceased which resulted in his death. The acceptance of the

opinion of the doctors, as incorporated in the post-mortem

report for the cause of death of the deceased being "hepatic

failure following riral hapatites" cannot be accpeted on its

face value at this initial stage.

We allow this appeal by setting aside the order of the

High Court and upholding the order of the trial court. We

would again remind the High Courts of their statutory

obligation to not to interfere at the initial stage of

framing the charges merely on hypothesis, imagination and

far-fetched reasons which in law amount to interdicting the

trial against the accused persons. Unscrupulous litigants

should be discouraged from protracting the trial and

preventing culmination of the criminal cases by having

resort to uncalled for and unjustified litigation under the

cloak of technicalities of law.

It is, however, made clear that while deciding the

instant case finally, the trial court will not be influenced

by any of the observations made by us for the limited

purposes of finding out the existence of a prima facie case

against the accused, which is allowed to proceed against

them in the trial court.