SC – Citation for Discharge U-s 239 CrPC - State of M.P. v. Mohanlal Soni AIR 2000 SC 2583

SC – Citation for Discharge U-s 239 CrPC - State of M.P. v. Mohanlal Soni AIR 2000 SC 2583

 

Bench: S V Patil, S.R.Babu

PETITIONER:

STATE OF MADHYA PRADESH

Vs.

RESPONDENT:

MOHANLAL SONI

DATE OF JUDGMENT: 19/07/2000

BENCH:

Shivaraj V. Patil, S.R.Babu

JUDGMENT:

Shivaraj V. Patil,J.

This petition is by the State of Madhya Pradesh directed against the order dated 10.11.1998 passed by the High Court of Madhya Pradesh in criminal Revision No. 274/98 by which the charges framed against the respondent under Section 13(1)(e) read with Section 13(2) of the Prevention of Corruption Act, 1988 (for short the 'Act') were quashed.

The relevant and necessary facts to dispose of this petition are:

The respondent was working as a Road Transport Inspector in the Regional Office of the Road Transport Corporation, Bhopal and is a public servant as such. A complaint under Section 13(1)(e) read with Section 13(2) of the Act for the check period 25.9.1982 to 27.3.1993 was filed stating that he had acquired the property in excess of the known source of his income. During the investigation properties and assets belonging to his mother-in- law, father, brother and nephew were shown as assets of the respondent. The assets of his wife, who is an income-tax payer and a self-earning member, were also connected with the assets of the respondent. While submitting charge sheet several important documents, which were collected during the course of investigation, were withheld. According to the respondent the said documents supported him. If those documents were considered even prima facie there was no scope to frame charges against him. At the time of framing charges the respondent made an application seeking production of these documents in court before proceeding to frame charge. But the said application was rejected stating that for the purpose of framing charges only the documents forwarded to the court under Section 173(5) Cr.P.C. need to be considered. Hence he filed Criminal Revision No. 337/97 in the High court. The said Revision Petition was disposed of by the order dated 8.9.1997 in the following terms: -

"In the result the revision is allowed, the order impugned is set-aside and it is directed that the documents made available by the accused during investigation be produced and may be taken into consideration by the court below while framing the charge."

Thereafter the trial court framed charges under Section 13(1)(e) read with Section 13(2) of the Act. Aggrieved by the order dated 4.4.1988 framing charges in the Special Case No. 26/96 by the Special Judge, Indore, the respondent filed Criminal Revision No. 274/98. The High Court by order dated 10.11.1998 accepted the case of the respondent, set aside the order of the learned Special Judge, Indore, framing charges and discharged the respondent. In these circumstances the State has come up in this petition challenging the said order of the High Court.

The learned Senior Advocate for the petitioner contended that at the stage of framing charges for offence under section 13(1)(e) read with Section 13(2) of the Act the Trial Judge was not required to consider documents like income-tax return and income-tax orders and calculation chart of the accounts; the documents like income-tax assessment orders and calculation chart submitted by the respondent ought not to have been accepted at the stage of framing charges without proving them and that those documents could be proved during trial by the author as per the provisions of Evidence Act. He referred to and relied on the decision of this Court in State of M.P. vs. S.B. Johari and Others .

On the other hand, the learned senior counsel for the respondent submitted that the order impugned in this petitioner is unassailable; the trial court committed manifest error in not considering the documents collected during the course of investigation though produced late but before framing charges, by the investigating agency itself pursuant to the order dated 8.9.1997 passed by the High court in criminal Revision No. 337/97 which prima facie supported the respondent; and that the High Court having considered all the material that was available at the time of framing charges rightly set aside the order of the trial court framing charges and discharged the respondent.

We have examined the rival submissions made by the learned senior counsel for the parties. Our attention was specifically drawn to the earlier order of the High court dated 8.9.1997 passed in Criminal Revision No. 337/97 in which the trial court was directed that the documents made available by the accused during investigation be produced and they be taken into consideration by the court while framing charges. The said order became final, it having not been challenged further. In this situation the parties and the trial court were bound and governed by the said direction. Since the trial court did not follow the said direction, the High Court having considered all the material including the documents produced by the prosecution itself, which were collected during the course of investigation, and on being prima facie satisfied taking the documents on their face value held that no offence was made out and as such no charge could be framed against the respondent. In this view, the High Court set aside the order of the trial court and passed the order discharging the respondent. The High Court in the order under appeal has elaborately considered the documents collected during the course of investigation and produced by the prosecution itself which were available at the time of framing charges. It may be added that most of the documents relate to the income-tax returns or income-tax assessment orders. All these documents pertain to the period prior to 26.3.1993. Some of them even relate to the year 1988. In the normal course the documents could not have been prepared in anticipation that the respondent would have to face such charges on a future date. The documents being the orders of assessment or return filed with the income- tax authorities on their face value supported the case of the respondent. The High Court in the order dated 8.9.1997 passed in Criminal Revision No. 337/97 relied on the decision of this Court in Satish Mehra vs. Delhi Administration and Another . In the said decision it is held: -

"The object of providing such an opportunity as is envisaged in Section 227 of the Code is to enable the Court to decide whether it is necessary to proceed to conduct the trial. If the case ends there it gains a lot of time of the Court and saves much human efforts and cost. If the materials produced by the accused even at that early stage would clinch the issue, why should the Court shut it out saying that such documents need be produced only after wasting a lot more time in the name of trial proceedings. Hence, we are of the view that sessions Judge would be within his power to consider even materials which the accused may produce at the stage contemplated in section 227 of the Code."

Be that it may, when the said order attained finality as already noticed above, the trial court was bound to follow the directions given therein. Its failure to follow the directions resulted in framing charges against the respondent ignoring the documents, which on their face value supported the respondent.

The crystallized judicial view is that at the stage of framing charge, the court has to prima facie consider whether there is sufficient ground for proceeding against the accused. The court is not required to appreciate evidence to conclude whether the materials produced are sufficient or not for convicting the accused.

In Anand Bezbaruah vs. Union of India the Gauhati High Court was of the view that where accused was charged with the offence of having resources and property disproportionate to his income and trial court failed to consider and evaluate the income tax return which clearly established that the property included in the assets of accused and shown to be disproportionate is the wife's property bought from her own resources and should have been excluded from assets of the accused.

Yet in another decision of this Court in Niranjan Singh Karam Singh Punjabi vs. Jitendra Bhimraj Bijjaya and Others it is held that at the time of framing charges having regard to Sections 227 and 228 of Cr.P.C. the court is required to evaluate the material and documents on record with a view of finding out if the facts emerging there from taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The court may for this limited purpose to sift the evidence, as it cannot be expected even at the initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or broad probabilities of the case.

Further in Satish Mehra's case (supra) this Court has stated that the Sessions Judge was not expected to hold a roving inquiry into the pros and cons of the case at the stage of framing charges by weighing the evidence as if he was conducting the trial.

Decision in the case of State of M.P. vs. J.B. Johari and Others (cited above), strongly relied on by the learned counsel for the petitioner, in our view does not advance or support the case of the petitioner. That was a case where FIR was lodged at the Police Station, Bhopal to the effect that there was criminal conspiracy in purchase of medicines by the concerned hospital authorities including Dean, Superintendent, Medical Officer In- charge and others. It was alleged that aforesaid accused entered into criminal conspiracy with some local businessmen of Indore by misusing their posts and also by using some forged documents caused wrongful loss to the Government. It was stated that though many of items had not been purchased, amount was paid on bogus vouchers. After considering the material on record, learned Sessions Judge framed the charges against the accused for the offence punishable under Section 5(1)(d) and 5(2) of the Prevention of Corruption Act, 1948 read with Section 120B IPC and in the alternative for the offence punishable under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988. The High Court in revision quashed the charges accepting the contentions raised by the accused after detailed consideration of material produced on record. Having regard to the facts and circumstances of the case and referring to earlier decisions of this Court in paragraph 4 it is held thus:

"4. In our view, it is apparent that the entire approach of the High Court is illegal and erroneous. From the reasons recorded by the High Court, it appears that instead of considering the prima facie case, the High Court has appreciated and weighed the materials on record for coming to the conclusion that charge against the respondents could not have been framed. It is settled law that at the stage of framing the charges, the Court has to prima facie consider whether there is sufficient ground for proceeding against the accused. The Court is not required to appreciate the evidence and arrive at the conclusion that the materials produced are sufficient or not for convicting the accused. If the Court is satisfied that a prima facie case is made out for proceeding further then a charge has to be framed. The charge can be quashed if the evidence which the prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged by cross examination or rebutted by the defence evidence, if any, cannot show that accused committed the particular offence. In such case, there would be no sufficient ground for proceeding with the trial. In Niranjan Singh Karam Singh Pubjabi etc. v. Jitendra Bhimraj Bijjayya and Others etc. reported in (1990) 4 SCC 76, after considering the provisions of Sections 227 and 228, Cr.P.C., Court posed a question, whether at the stage of framing the charge, trial court should marshal the materials on the record of the case as he would do on the conclusion of the trial? The Court held that at the stage of framing the charge inquiry must necessarily be limited to deciding if the facts emerging from such materials constitute the offence with which the accused could be charged. The Court may peruse the records for the limited purpose, but it is not required to marshal it with a view to decide the reliability thereof. The Court referred to earlier decisions in State of Bihar v. Ramesh Singh (1977) 4 SCC 39, Union of India v. Prafulla Kumar Samal (1979) 3 SCC 4 and Supdt. & Remembrancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja (1979) 4 SCC 274, and held thus:

"From the above discussion it seems well settled that at the Sections 227-228 stage the court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The Court may for this limited purpose shift the evidence as it cannot be expected even at the initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case."

As is evident from the paragraph extracted above if the Court is satisfied that a prima facie case is made out for proceeding further then a charge has to be framed. Per contra, if the evidence which the prosecution proposes to produce to prove the guilt of the accused, even if fully accepted before it is challenged by the cross-examination or rebutted by the defence evidence, if any, cannot show that accused committed the particular offence then the charge can be quashed.

From the decisions referred to in the same paragraph and the decisions already referred to above there was no bar to consider the material on record in the case on hand, which was collected during the course of investigation and produced before the court and particularly in view of the directions given earlier by the High Court.

In this view, the High Court looking to the material and documents that were made available at the stage of framing charges on their face value in the light of the directions given earlier in Criminal Revision No. 337/97 and bearing in mind the position in law concluded that charges could not be framed against the respondent, consequently, set aside the order of trial court and discharged the respondent.

On the facts and in the circumstances of the case and having regard to the legal position stated above, we see no good reason or valid ground to upset the impugned order. Hence the petition is dismissed. No costs.

 

http://www.indiankanoon.org/doc/1799968/

SC – Citation for Discharge U-s 239 CrPC - Satish Mehra Vs. Delhi Admn. (1996)9 SCC 766

SC – Citation for Discharge U-s 239 CrPC - Satish Mehra Vs. Delhi Admn. (1996)9 SCC 766

 

Bench: M.M.Punchhi, K Thomas

PETITIONER:

SH. SATISH MEHRA

Vs.

RESPONDENT:

DELHI ADMINISTRATION & ANR.

DATE OF JUDGMENT: 31/07/1996

BENCH:

M.M.PUNCHHI, K.T. THOMAS

ACT:

HEADNOTE:

JUDGMENT:

THE 31 DAY OF JULY, 1996

Present:

Hon'ble Mr. Justice M.M. Punchhi

Hon'ble Mr. Justice K.T. Thomas

In-personofor appellant

S.N. Sikka Adv. for S.N. Terdol, Adv. for the Respondent No.1

N.B.Joshi, Adv. for the Respondent No.2

J U D G M E N T

The following Judgment of the Court was delivered: Shri Satish Mehra

V.

Delhi administration and another

J U D G M E N T

THOMAS,J.

Some eerie accusations have been made by a wife against her husband. Incestous sexual abuse, incredulous ex facie, is being attributed to the husband. Police on her complaint conducted investigation and laid charge sheet against the appellant, who has filed this Criminal Appeal special leave as he did not succeed in his approach to the High court at the F.I.R. stage itself.

More details of the case are these:

Appellant (Satish Mehra) and his wife (Anita Mehra) were living in New York ever since their marriage. They have three children among whom the eldest daughter (Nikita) was born of 2nd April, 1988. Before and after the birth of the children relationship between husband and wife was far from cordial. Husband alleged that his wife, in conspiracy with her father, had siphoned off a whopping sum from his bank deposits in India by forging his signature. He also alleged that his wife is suffering from some peculiar psychiatric condition. He approached a court at New York for securing custody of his children. On 31.10.1992 his wife left his house with the children and then filed a complaint with Saffolk County Police Station (United States) alleging that her husband had sexually abused Nikita who was then aged four. United States police at the local level moved into action. But after conducting detailed investigation concluded that the allegations of incestuous abuse are untrue.

On 7.3.1993, appellant's wife (Anita) returned to India with her children. In the meanwhile Family Court at New York has ordered that custody of the children be given to the husband and a warrant of arrest was issued against Anita for implementation of the said order.

The battle field between the parties was thereafter shifted to India as she came back home. On 19.3.1993, Anita filed a complaint to the "Crime Against Women Cell" (CAW Cell for short) New Delhi in which she stated that her husband committed sex abuses with Nikita while they were in United States and further alleged that appellant committed certain matrimonial misdemeanour on his wife. But the complain was close but want of jurisdiction for the CAW Cell to investigate into what happened in United States. Appellant returned to India on 127.1993 and thereafter filed a petition for a writ of Habeas Corpus for securing the custody of the children.

The present case is based on a complaint filed by Anita before Greater Kailash Police station on 14.8.1993. FIR was prepared and a case was registered as Crime No. 197/93 for offences under Sections 354 and 498-A of Indian Penal Code. On 25.8.1993, the investigating officer moved the Sessions Court for adding Section 376 of the IPC also. The case was charge sheeted by the police and it was committed to the Court of Sessions.

As committal proceedings took place during the pendency of the Special Leave Petition, this Court directed the Sections judge on 22.2.1996 "to apply its mind to the case committed and see whether a case for framing charge/charges has been made out or no". Learned Session judge, by a detailed order, found that no charge under Section 498-A IPC could be framed against the appellant, but charge for offences under Sections 354 and 376 read with Section 511 of IPC should be framed against him. Accordingly, the charge has been framed with the said two counts.

First count in the charge is that appellant had outraged the modesty of his minor daughter aged about 3 years during some time between March and July, 1991 at D- 108, East of Kailash, New Delhi by fondling with her vagina and also by inserting bottle into it and thereby committed the offence under Section 354 of the IPC. Second count in the charge is that he made an attempt to commit rape on the said infant child (time and place are the same) and thereby committed the offence under Section 376 read with Section 511 of the IPC.

At this stage it is superfluous to consider whether the FIR is liable to be quashed as both sides argued on the sustainability of the charge framed by the Sessions Judge. We are, therefore, considering the main question whether the Sessions Court should have framed the charge against the appellant as it did now.

Considerations which should weigh with the Sessions Court at this state have been well designed by the 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 there is not sufficient

ground for proceeding 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 and offence the procedure laid down therein has to be adopted. When those two section are put 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". (Vide State of Bihar v. Ramesh Singh, AIR 1977 SO 2018, and Supdt, & Remembrancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja, 1979 Cr. L.J. 1390: AIR 1980 SC 52). In Alamohan Das v. State of West Bengal (AIR 1970 SC 863) Shah, j. (as he then was) has observed in the context of considering the scope of committal proceedings under Section 209 of the old Code of Criminal Procedure (1898) that a Judge can sift and weight the materials on record by seeing whether there is sufficient evidence for commitment. It is open to the Court to weight the total effect of the evidence and the documents produced to check whether there is any basic infirmity. Of course the exercise is to find out whether a prima facie case against the accused has been made out.

In Union of India v. Profullakumar- 1979 Cr.L.J. 154, this Court has observed that the Judge while considering the question of framing the charge has "the undoubted power to sift and wight the evidence for the limited purpose of finding out whether a prima facie case against the accused has been made out". However, there Lordships pointed out that the test to determine a prima facie case would naturally dependent upon the facts of each case and it is difficult to lay down a rule of universal application. "By and large, however, if who view are equally possible and the Judge is satisfied that the evidence produced before him gives rise to some suspicion but not grave suspension, the Judge would be fully within his right to discharge the accused". At the same time the Court cautioned that a roving enquiry into the pros and cons of the case by weighing the evidence as if he was conducting the trial is not expected or even warranted at this stage.

An incidental question which emerges in this context is whether the Session Judge can look into any material other than those produced by the prosecution. Section 226 of the Code obliges the prosecution to describe the charge brought against the accused and to state by what evidence the guilt of the accused would be proved. The Next provisions enjoins on the Session Judge to decide whether there is sufficient ground to proceed against the accused. In so deciding the Judge has to consider (1) the record of the case and (2) the documents produced therewith. He has then to hear the submissions of the accused as well as the prosecution on the limited question whether there is sufficient ground to proceed. What is the scope of hearing the submissions? Should it be confined to hearing oral arguments alone? Similar situation arise under Section 239 of the Code (which deals with trial of warrant cases on police report). In that situation the Magistrate has to afford the prosecution and the accused an opportunity of being heard besides considering the police report and the documents sent therewith. At these two State the Code enjoins on the Court to give audience to the accused for deciding whether it is necessary to proceed to the next State. It is a matter of exercise of judicial mind. There is nothing in the code which shrinks the scope of such audience to oral arguments. If the accused succeeds in producing any reliable material at that stage which might fatally affect even the very sustainability of the case, it is unjust to suggest that no such material shall be looked into by the Court at that stage. Here the "ground" may be any valid ground including insufficiency of evidence to prove charge.

The object of providing such an opportunity as is envisaged in Section 227 of the code is to enable the Court to decide whether it is necessary to proceed to conduct the trial. If the case ends there it gains a lot of time of the Court and saves much human efforts and cost. If the materials produced by the accused even at that early stage would clinch the issue, why should the Court shut it out saying that such documents need be produced only after wasting a lot more time in the name of trial proceedings. Hence, we are of the view that Sessions Judge would be within his powers to consider even material which the accused may produce at the stage contemplated in Section 227 of the Code.

But when the Judge is fairly certain that there is no prospect of the case ending in conviction the valuable time of the Court should not be wasted for holding a trial only for the purpose of formally completing the procedure to pronounce the conclusion on a future date. We are under heavy pressure of work-load. If the Sessions Judge is almost certain that the trial would only be an exercise in futility or a sheer waste of time it is advisable to truncate or ship the proceedings at the stage of Section 227 of the Code itself.

In the present case learned Session Judge has missed certain germane aspects. Apart form the seemingly incredulous nature of the accusations against a father that he molested his infant child (who would have just passed her suckling stage the) the Sessions Judge out not to have overlooked the following telling circumstances. The complaint made by her with the New York police that her husband committed sexual offences against her 18 months old female child was investigated by the New York police and found the complaint bereft of truth hook, line and sinker. The present charge is that the appellant committed such offences against the same child at East Kailash, New Delhi some time during March to July, 1991. There is now no case of what happened in United States. There is now no case of what happened in United States. The Sessions Judge should have noted that appellant's wife has not even remotely alleged in the complaint filed by her on 19.3.1993 before CAW Cell , New Delhi that appellant has done anything like that while he was in India. Even the other complaint. petition (on which basis the FIR was prepared) is totally silent about a case that appellant did anything against his daughter anywhere in India. when we perused the statement of Anita Mehra (second respondent) we felt no doubt that the has been brimming with acerbity towards the petitioner on account of other causes. She describes her marital life with petitioner as 'extremely painful and unhappy from the very inception". She complains that petitioner has "a history of irrational outbursts of temper and violence". She accused him of being alcoholic and prone to inflicting server physical violence on her form 1980 onwards. Thus her attitude to the petitioner, even de hors the allegation involving the child, was vengeful. We take into account the assertion of the of the petitioner that the present story involving Nikita was concocted by the second respondent to wreak her vengeance by embroiling him in serious criminal cases in India so that the could be nailed down here and prevent him from going back to U.S.A. While hearing the arguments we ascertained whether the spouses could settle their differences. Second respondent, who to was present in court, made an offer through her counsel that she could agree for annulling the criminal proceedings against the petitioner on the condition that he should withdraw his claims on the bank deposits and would also relinquish his claim for custody of the children, and further he should concede for a divorce. In response to the said conditional offer, petitioner agreed to give up all his claims on the large amounts in bank deposits, and further agreed to have the divorce. But he stood firm that on no account custody of the children could go to the second respondent but if made to, subject to his rights of visitation. This, he said, is because he is convinced that second respondent is unsuitable to be entrusted with the care of the children.

In the above context petitioner drew our special notice to a medical report issued by Dr. Prabha Kapoor (Children Medical Centre, Jorbagh, New Delhi) On 26.7.1992. It is stated in report, that Nikita was brought to the doctor by the second respondent and on examination of the genetals of the child the doctor noticed " a wide vaginal opening -wider than would be expected of her age group." On the strength of the aforesaid medical report, petitioner made a frontal attack on second respondent, alleging that in order concoct medical evidence against him the little child's genitals would have been badly manipulated by its mother. To substantiate this allegation he drew our attention to the U.S. police report, in which there is mention of a medical examination conducted on Nikita by a U.S. doctor (Dr. Gordon) on 24.11.92. That doctor pointed out that there was absolutely no indication of any sexual abuse when the child was physically examined. If the medical examination done on the child in November, 1992 showed such normal condition, petitioner posed the question -who would have meddled with the child's genitals before 26.7.93, to case such a widening of the vaginal office? (We now remember again that, as per present case, the last occasion when the petitioner should have abused the child was in July, 1991). The aforesaid question, posed by the petitioner in the context of expressing grave concern over what the mother might do with the little female child for creating evidence of sex abuse, cannot be sideline by us in considering whether the case should proceed to the trial stage.

Petitioner invited out attention to the answers which Mrs. Veena Sharma (of CAWC) has elicited from Nikita, a verbatim reproduction of which is given in the counter affidavit filed by the second respondent. The said interrogation record reveals that Mrs. Veena Sharma has practically put on the tongue of the little girl that her father had molested her. The following questions and answers can bring the point home the questions. The questioner asked the child "what your dady did with you" and the child answered that he put his finger (and showed her private part). Not being satisfied with the answer the next question put to the child was "Dady puts what else". Then Nikita answers "Dady puts his bottle". We noticed with disquiet that the questioner drew the picture of the petitioner -face body and then asked certain questions such as "where is papa's bottle? Is it on the cupboard?" The child kept looking at the drawn sketch and pointed to the part between legs. Questioner then asked if anything was missing in the picture, to which Nikita Answered "glesses". After the child again pointed to the private parts between the legs, the questioner wanted the child to draw "papa's bottle". But then the child told her "you do it." The questioner at the stage had the temerity to draw the picture of the private parts of child's father. We are much disturbed at the manner in which the little child was interrogated by the said officer of CAW Cell. At any rate we have no doubt that the purpose of such questions was to lead the child unmistakably to the tutored answers.

Even overlooking all the inherent infirmities shrouding the testimony of a tiny tot speaking about what her further did when she was aged 3 and even ignoring the appellant's persistent submission that the little child was briskly tutored by her mother to speak to the present version, There is no reasonable prospect of the sessions court relaying on such a testimony to reach the conclusion that the prosecution succeeded in proving the offence charged beyond all reasonable doubt.

Over and above that, what would be the consequence if this nebulous allegation is allowed to proceed to the trial stage. We foresee that Nikita, the child witness, now eight years and four month old, mus necessarily be subjected to cross-questions involving sex and sex organs. The traumatic impact on the child when she would be confronted by volley of questions dealing with such a subject is a matter of concerned to us. We cannot brush aside the submission of the appellant that such an ordeal would inflict the appellant that such an ordeal would inflict devastating impairment on the development of child's personality. Of course, if such a course is of any use to the cause of justice, we may have to bear with it as an inevitable course of action to be resorted to. But in this case, when the trial is going to be nothing but a farce, such a course of action should not be allowed to take place on account of the impeding consequences befalling an innocent child.

After adverting to the above aspects and bestowing our anxious consideration we unhesitatingly reach the conclusion that there is no sufficient ground to proceed to the trial in this case.

We, therefore, quash the proceedings and the charge framed by the Sessions Judgement and discharge the appellant. The appeal would stand allowed.

http://www.indiankanoon.org/doc/1706613/

SC – Citation for Discharge U-s 239 CrPC -State of Bihar vs. Ramesh singh AIR 1977 SC 2018

SC – Citation for Discharge U-s 239 CrPC - State of Bihar vs. Ramesh singh AIR 1977 SC 2018

Equivalent citations: 1977 AIR 2018, 1978 SCR (1) 257

Bench: Untwalia, N.L.

PETITIONER:

STATE OF BIHAR

Vs.

RESPONDENT:

RAMESH SINGH

DATE OF JUDGMENT02/08/1977

BENCH:

UNTWALIA, N.L.

BENCH:

UNTWALIA, N.L.

SHINGAL, P.N.

CITATION:

1977 AIR 2018 1978 SCR (1) 257

1977 SCC (4) 39

CITATOR INFO :

R 1979 SC 366 (8)

F 1980 SC 52 (18)

F 1980 SC1780 (4)

RF 1986 SC2045 (45)

RF 1990 SC 121 (9)

RF 1990 SC1962 (6)

ACT:

Criminal Procedure Code 1973-Sections 226, 227 and 228. Tests for discharging an accused-Presumption of innocence- Difference between case for conviction or case for proceeding further.

HEADNOTE:

At 3.00 A.M. on the 26th of November 1973 Smt. Tara Devi, wife of respondent, a professor of Economics, in Munshi Singh College, Motihari in State of Bihar, was found burning in the, Kitchen of their house. She died as a result of excessive burn injuries on her person. The brother of Tara Devi rushed to the spot and found that respondent and his brother were standing near the burning body of Tara Devi but were not taking any steps to extinguish the fire. He lodged the F.I.R. at Police Station charging the respondent for having committed the offences under s. 302 and 201 of Penal Code. Charge sheet was submitted against him by the police and the case was committed to Sessions Court for trial of the respondent u/s. 209 of Cr. P.C. 1973.

The Sessions Judge discharged the accused under s. 227 of Cr. P. Code 1973 on the ground that there was not sufficient ground for proceeding with the trial against respondent and he was discharged in accordance with section 227.

The State of Bihar went in revision before Patna High Court, which was dismissed by the High Court.

Allowing the appeal by special leave,

HELD : (1) Under s. 226 of the Code the prosecutor while opening the case 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 it the initial stage, the duty of the Court to consider the record of the case and the documents submitted therewith. The Judge has then to pass an order either u/s. 227 or u/s. 228 of Code. [259C, D]

If 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 enjoined by s. 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 s. 228. Reading the two provisions together in juxta a position at 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. [259E-F]

The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of accused, is not exactly to be applied at the stage of deciding the matter under s. 227 and 228 of the Code. [259G]

Strong suspicion against the accused, if it remains in the region of suspicion, cannot' take the place of proof of his guilt at the conclusion of trial. But at the initial stage, if there is a strong suspicion which leads the court to think that there is a 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. It is only for the purpose of deciding 258

prima facie whether the court should proceed with the trial or no,,. 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. [259H, 260A-B]

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. [260C-D]

Nirmal Jeet Singh Hoon v. State of West Bengal (1973) 2 SCR 66 has followed Chandra Deo Singh v. Prakash Chandra Bose (1964) 3 SCR 639 wherein it was laid down that the test is whether there is a sufficient ground for proceeding and not, whether there is a sufficient ground for conviction. After setting aside the orders of High Court and Sessions Court, the Court directed that appropriate charge or charges be framed against the respondent and trial to proceed in accordance with law. [261H]

The Court observed that nothing stated in the judgment is meant to prejudice in the least the case of either party at the trial. [259C]

JUDGMENT:

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 51 of 1977.

Appeal by Special Leave from the Judgment and Order dated 18-2-1976 of the Patna High Court in Crl. Rev. No. 699/75. U. P. Singh and S. N. Jha, for the, Appellant. B. P. Singh and A. K. Srivastava, for the Respondent. The following Judgment of the Court was delivered by UNTWALIA, J.-The respondent in this appeal by special leave is a Professor of Economics in Munshi Singh College, Motihari in the State of Bihar. At about 3.00 A.M. on the 26th of November, 1973, Smt. Tara Devi, wife of the respondent, was found burning in the kitchen of his house. A hulla was raised. Chandreshwar Prasad Singh, brother of Tara Devi, who is a Professor of Botany in the said College and lives nearby came to the scene of occurrence. It is said he found the respondent and his brother standing near the burning body of Tara Devi but not taking any steps to extinguish the fire. Tara Devi died apparently as a result of the extensive burn injuries on her person. A First Information Report was lodged by Chandreshwar Prasad Singh at the Police Station charging the respondent for having committed the offences under sections 302 and 201 of the Penal Code. Eventually Charge-Sheet was submitted against him by the police and the case was committed to the Court of Sessions for trail of the respondent under section 209 of the Code of Criminal Procedure, 1973-hereinafter called the Code.

When the case was opened in the Court of the IIIrd Additional Sessions Judge at Motihari in Sessions Trial No. 66/1975 by the Additional Public Prosecutor in accordance with section 226 of the Code, a plea was raised on behalf of the respondent that there was not any sufficient ground for proceeding with the trial against him and he 259

should be discharged in accordance with section 227. The Additional Sessions Judge accepted the plea and discharged the accused by his order dated April 30, 1975. The State of Bihar the appellant in this appeal went in revision before the Patna High Court to assail the order aforesaid of the Sessions Court. The High Court by its order dated the 18th February, 1976 dismissed the revision. Hence this appeal. It is neither necessary nor advisable for us to mention in any great detail the facts of the prosecution case against the respondent or refer to all the materials and the evidence which may be produced by the prosecutor when a trial proceeds in the Sessions Court. Unnecessary details in that regard have got to be avoided so that it may not prejudice either the prosecution case of the appellant or the defence of the respondent. Since for the brief reasons to be stated hereinafter we are going to set aside the orders of the Courts below and direct the trial to proceed against the respondent, we would like to caution that nothing which may have to be said in support of our order in this judgment is meant and should be understood to prejudice in the least the case of either party at the trial. 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 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 consider that there is not. 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 juxta position, 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 260

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 situation ordinarily and generally the order which will have to be made will be one under section 228 and not under section 227. In Nirmaljit Singh Hoon v. The State of West Bengal and an- other(1)-Shelat, J. delivering the judgment on behalf of the majority for the Court referred at page 79 of the report to the earlier decisions of this Court in Chandra Deo Singh v. Prakash Chandra Bose(2) where this Court was held to have laid down with reference to the similar provisions contained in sections 202 and 203 of the Code of Criminal Procedure, 1898 "that the test was whether there was sufficient ground for proceeding and not whether there was sufficient ground for conviction, and observed that where there was prima facie evidence, even though the person charged of an offence in the complaint might have a defence, the matter had to be left to be decided by the appropriate forum at the appropriate stage and issue of a process could not be refused." Illustratively, Shelat J, further added "Unless, therefore, the Magistrate finds that the evidence led before him is self-contradictory, or intrinsically untrustworthy, process cannot be refused if that evidence makes out a prima facie case."

The fact that Tara Devi died an unnatural death and there were burn injuries on her person does not seem to be in doubt or dispute. The question to be decided at the trial would be whether the respondent, as is the prosecution case, had murdered her and set fire to her body or whether she committed suicide by herself setting fire to , it This undoubtedly is a serious matter for decision at the trial. But at the stage of framing the charge, copious reference to Modi's Medical Jurisprudence and judging the postmortem report of the Doctor who performed the autopsy over the dead body of the lady meticulously was not quite justified as has been done by the Trial Judge

(1) [1973] 2 S.C.R. 66.

2. [1964] 3 S.C.R. 629.

261

According to the persecution case the respondent was in love with one of his girl students, named, Nupur Ghosh and this led to the serious differences between the respondent and his wife, the unfortunate Tara Devi, inducing the former to clear the path of his misadventure in the manner alleged by the prosecution. On the other hand, the defence seems to suggest that the 'alleged love-affair of the respondent led Tara Devi to commit suicide. Whether the respondent will be able to prove his defence at the final stage of the trial may not be of much consequence. Surely the prosecution will have to prove its case beyond any reasonable doubt. Although at the time of the alleged occurrence were present in the house of the respondent his brother, his brother's wife, and children the prosecution does not seem to be in possession of any oscular testimony of an eye witness of the occurrence. The case will largely, rather, wholly, depend upon the circumstantial evidence. A stricter proof will have to be applied for judging the guilt of the accused with reference to the various circumstantial evidence against him. The at this stage the Additional Sessions Judge was not right when he said-"it appears that there is neither direct evidence nor any circumstantial evidence to connect the accused with the alleged murder of Tara Devi".' He also ought not to have referred to the varying opinions of the Circle Inspector and the Superintendent of Police, Motihari as to the submission of Charge-Sheet against the respondent. Apart from some other circumstances, as it appears, the prosecution proposes to prove in this case, and whether it will succeed in proving them or not is a different matter, the High Court has enumerated three circumstances in its impugned order. We may just add, and that is only for the purpose of a cursory observation for deciding the matter at this stage, that the story of assault on Tara Devi by the respondent a day prior to the occurrence is perhaps sought to be proved by the evidence of Chandreshwar Singh, the informant, and it seems, he would also try to say, rightly or wrongly, that at the time of the said assault the respondent had given her a threat to kill her. The High Court felt persuaded to take the view that the three circumstantial facts, even if proved, would not be incompatible with the innocence of the accused and then added "There may be strong suspicion against the opposite party, but the three circumstances which I have just mentioned above, cannot be said to be incompatible with the defence of the accused." The said observation of the High Court is not quite apposite in the background of the law which we have enunciated above with reference to the provisions of sections 227 and 228 of the Code. For the reasons stated above, we set aside the impugned orders of the High Court and the Sessions Court and direct that appropriate charge or charges will be framed against the respondent and the trial shall proceed further in accordance with the law.

P. H. P. Appeal allowed.

262

http://www.indiankanoon.org/doc/943850/

SC – Citation for Discharge U-s 239 CrPC - Supdt. S. Remembrancer of legal affairs W.B. Vs. Anil Kumar Bhunja- AIR 1989 SC 52

SC – Citation for Discharge U-s 239 CrPC - Supdt. S. Remembrancer of legal affairs W.B. Vs. Anil Kumar Bhunja- AIR 1989 SC 52

 

Equivalent citations: 1980 AIR 52, 1980 SCR (1) 323

Bench: Sarkaria, R Singh

PETITIONER:

SUPDT. & REMEMBRANCER OF LEGAL AFFAIRS WEST BENGAL

Vs.

RESPONDENT:

ANIL KUMAR BHUNJA & ORS.

DATE OF JUDGMENT23/08/1979

BENCH:

SARKARIA, RANJIT SINGH

BENCH:

SARKARIA, RANJIT SINGH

SHINGAL, P.N.

REDDY, O. CHINNAPPA (J)

CITATION:

1980 AIR 52 1980 SCR (1) 323

1979 SCC (4) 274

CITATOR INFO :

RF 1986 SC2045 (45)

RF 1990 SC1962 (7)

ACT:

Arms Act 1959 (4 of 1959)-S. 29(b)-Scope of-Giving of fire-arms for limited purpose of repairs-Whether amounts to delivery of 'possession'-Great caution and discernment necessary in the application of the ratio of cases decided under the Arms Act of 1878 to those under the present Act. Words & Phrases-"Possession" meaning of-S. 29(b) Arms Act, 1959.

HEADNOTE:

The prosecution alleged that the police officers of the appellant state while investigating a case discovered a workshop run by a mechanic who was then actually working on a revolver. Several other guns, revolvers and rifles were found in the workshop and all these fire-arms were seized. The mechanic claimed to have received one of the guns so seized from a gun-licensee and the rest from respondents 1 to 4 for repairs. The mechanic had no valid licence under the Arms Act to keep or repair these fire-arms but respondent No. 4 however possessed licences under the Act to run the business of repairing and dealing in fire-arms. The police charge-sheeted the mechanic, the gun licensee and respondents 1 to 4, for having committed offences under Sections 25(1)(a) and 27 of the Act.

The Magistrate held that there were materials to make out a prima facie case under s. 25(1)(c) of the Act against the gun-licensee and under s. 29(b) of the Act against the mechanic and charged them accordingly. As regards Respondents 1 to 4 taking the view that giving of the arms to the mechanic by the respondents for the limited purpose of repairs, did not amount to delivery of 'possession' of those arms within the meaning of s. 29(b) of the Act, he discharged the said respondents.

The appellant's criminal revision against the said order, was dismissed, the High Court holding that Respondents 1 to 4 could not be said to have delivered the fire-arms into the 'possession' of the mechanic within the meaning of s. 29(b) of the Act, because the respondents possessed valid licences for repairs as well as for sale of fire-arms and had given only 'temporary' custody of those arms to the mechanic for the limited purpose of carrying out the repair job, while the effective control over those arms all the time remained with the respondents. In appeal to this Court it was contended on behalf of the appellant-State that the question whether a person is in possession of a fire-arm or had transferred and delivered it to another, is largely one of fact; that in the instant case, the mechanic was not a servant or employee of the respondents but was independently running his own business of repairing fire-arms; that the fire-arms were handed over by the respondents to the mechanic to be repaired at the latter's residence-cum-workshop which was not the respondent's licensed place

324

of business; that the mechanic had no licence for repairing or keeping fire-arms and the respondents were either aware of this fact or did not ascertain it before delivering the fire-arms to him, that 'possession' within the purview of s. 29(b) means immediate possession and consequently, delivery of even temporary possession and control to an unauthorised person falls within the mischief of the section; that in the circumstances of the instant case there was a clear prima facie case not only under s. 29(b) but also under s. 30 read with s. 5 of the Act, against the Respondents and consequently the Magistrate was not justified in discharging them.

On behalf of the Respondents it was contended that the mechanic was only in temporary custody of the fire-arms for the limited purpose of repairing them, as an agent of the owners, who being licencees in Form IX entitled to repair and keep these fire arms, throughout remained in their lawful possession and control. The delivery of possession contemplated by s. 29(b) is something more than entrusting the arms to an 'agent' for the limited purpose of repairs. Allowing the appeal,

^

HELD: 1. "Possession" is a polymorphous term which may have different meanings in different contexts. It is impossible to work out a completely logical and precise definition of "possession" uniformly applicable to all situations in the contexts of all statutes. "Possession" implies a right and a fact; the right to enjoy annexed to the right of property and the fact of the real intention. It involves power of control and intent to control. [328D-E] "Possession" is not a purely legal concept but also a matter of fact, and the broad test for determining whether a person is in possession of anything is whether he is in general control of it. [328H-329A]

Salmond's Jurisprudence 11th Edn. p. 52 referred to. In the instant case although the respondents held licences in Form IX for repairing and dealing in fire-arms at the place of business, factory or shop which was specified in Column 3 of their licences, they handed over the fire-arms to the mechanic who had no such licence to be repaired at the latters own workshop. Since that workshop and the repairing business being run therein, was in the exclusive control and occupation of the mechanic, the inference would be that by handing over the fire-arms to the mechanic for repair the respondents had divested themselves for the time being not only of physical possession but also of effective control over those fire-arms. The respondents had not done anything to ascertain whether the mechanic was legally authorised to retain those fire-arms even for the limited purpose of repairing them. Prima facie the materials before the Magistrate showed that the respondents had delivered the fire-arms in question into the possession of the mechanic without previously ascertaining that he was legally authorised to have the same in his possession, and as such, they appeared to have committed an offence under s. 29(b) of the Act. [330B-C, 330G-331A]

3. By allowing the fire-arms to be removed to a place other than the place of business or factory specified in Column 3 of the licences in Form IX, the respondents contravened condition (1)(c) of the licence, amounting to an offence punishable under s. 30 of the Act. [331 B-C] 325

The materials before the Magistrate, prima facie disclosed the commission of offences under Sections 29(b) and 30 of the Act by Respondents 1 to 4. The Magistrate was thus clearly in error in discharging these respondents. [331D]

4. The ratio of cases decided under the Old Arms Act (Act 11 of 1878) should not be blindly applied to cases under the Act of 1959 which has in several aspects modified or changed the law relating to the regulation of arms. [331H]

5. Trial of summons case as a warrant case does not amount to an illegality but is a mere irregularity that does not vitiate the trial unless there is a prejudice. [333 B]

6. Case remitted to trial Magistrate with direction to frame charges in respect of offences under Sections 29(b) and 30 of the Act against Respondents 1 to 4 and to proceed further with the trial. [333C]

Manzur Hussain v. Emperor, AIR 1928 All. 55(1); Sadh Ram v. State, AIR 1953 HP 121; Emperor v. Harpal Raj, ILR XXIV All. 454; A. Malcom v. Emperor, AIR 1933 Cal. 218; Emperor v. Koya Hansji, 14 Bom. L.R. 964; Parmeshwar Singh v. Emperor, AIR 1933 Pat. 600; Murli v. Crown, AIR 1929 All. 720; Tola Ram v. Crown, ILR 16 All. 276; held inapplicable.

JUDGMENT:

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 98 of 1973.

Appeal by Special Leave from the Judgment and Order dated 16-8-1972 of the Calcutta High Court in Criminal Revision No. 85/72.

M.M. Kshatriya, G.S. Chatterjee and D.N. Mukherjee for the Appellant.

A.K. Gupta for Respondents 1 and 3.

H.K. Puri for Respondents 2 and 4.

The Judgment of the Court was delivered by SARKARIA, J.-Whether the giving of fire-arms by a person holding a licence for repairing and dealing in fire- arms for repairs to mechanic who holds no such licence, but does the repair job at his workshop at a place different from the factory or place of business of the licence holder, amounts to "delivery of those arms into the possession of another person" within the contemplation of Section 29(b) of the Arms Act, 1959 (For short, called the 'Act'), is the principal question that falls to be answered in this appeal by special leave directed against a judgment, dated August 16, 1972, of the High Court of Calcutta. It arises in these circumstances:

On or about April 17, 1971, the Calcutta Police while investigating a case, went to premises No. 4, Ram Kanai Adhikari Lane in Calcutta, and, on the ground floor of the building, they discovered a workshop run by Mrityunjoy Dutta, who was then working on a re-

326

volver. In the said premises, the police found several other guns, revolvers and rifles. All these fire-arms were seized by the police.

Mrityunjoy Dutta claimed to have received one of the guns so seized from one Matiar Rahaman gun-licensee and the rest from respondents 1 to 4 for repairs. Mrityunjoy Dutta had no valid licence to keep or repair these fire-arms under the Act. Respondents 1 to 4, however, were holding licences under the Act to run the business of repairing and dealing in fire-arms.

On April 17, 1970, the police charge-sheeted Mrityunjoy Dutta, Matiar Rahaman and respondents 1 to 4 to stand their trial in the Court of the Presidency Magistrate, in respect of offences under Sections 25(1) (a) and 27 of the Act. The trial Magistrate, while considering the question of framing charges, held that there were materials to make out a prima facie case under Section 25(1) (c) of the Act against Mrityunjoy Dutta and under Section 29(b) of the Act against Matiar Rahaman, and charged them accordingly. So far as respondents 1 to 4 are concerned, the Magistrate took the view that the giving of the arms to the accused Dutta, by respondents 1 to 4 for the limited purpose of repairs, did not amount to delivery of possession of those arms within the meaning of Section 29(b) of the Arms Act (Act IV/1959), and in the result, he discharged the respondents by an order, dated November 17, 1971.

Aggrieved, the State of West Bengal filed a Criminal Revision against the Magistrate's order before the High Court, contending that delivery of the arms, into the possession of a person who did not have a valid licence for repairs of fire-arms, is not only a contravention of the provisions of Section 5 of the Act, but also amounts to delivery of fire-arms by the respondents into the possession of Mrityunjoy Dutta and, as such, the respondents were prima facie liable for an offence under Section 29(b) of the Act. The Division Bench of the High Court, who heard the Revision, dismissed it with the reasoning, that Respondents 1 to 4, could not be said to have delivered the fire-arms, concerned into the possession of Mrityunjoy Dutta within the meaning of Section 29(b) of the Act, because the respondents who possessed valid licences for repairs as well as for sale of fire-arms, had given only temporary custody of those arms to Mrityunjoy Dutta for the limited purpose of carrying the repair job, while the effective control over those arms all the time remained with the respondents. In its view, there is no delivery of possession of the fire-arms so long as control over the arms and the authority to use those arms is not transferred to the custodian.

327

Hence, this appeal.

The whole case pivots around the interpretation and application of the term "possession", used in Section 29(b) of the Act.

Learned counsel for the appellant-State contends that the question whether a person is in possession of an arm or had transferred and delivered it to another, is largely one of fact. It is submitted that in the instant case, there were three stark facts which more than any other, unmistakably showed that the respondents had given possession of these fire-arms to Mrityunjoy Dutta: (a) Mrityunjoy Dutta was not a servant or employee of the respondents, but was running his own business of repairing fire-arms. (b) The fire-arms were handed over to Mrityunjoy Dutta to be repaired at his own residence-cum-workshop which was not the respondents licensed place of business, and was in the exclusive control and occupation of Dutta. (c) Mrityunjoy Dutta had no licence for repairing or keeping fire-arms and the respondents were either aware of this fact or did not ascertain it before delivering the fire-arms to him. It is maintained that "possession, within the purview of Section 29(b) means immediate possession, and consequently, delivery of even temporary possession and control to an unauthorised person falls within the mischief of the Section. It is further urged that the delivery of fire-arms for repairs to the unlicensed mechanic for repairs, to be carried out at a place other than the factory or place of business specified in the licence of the owners, will amount to an offence under Section 30 read with Section 5 of the Act also.

As against this, Mr. Anil Kumar Gupta has addressed lengthy arguments to support the judgments of the Courts below. The sum and substance of his arguments is that the mechanic, Dutta, was only in temporary custody of these arms for the limited purpose of repairing them, as an agent of the owners, who being licensees in Form IX entitled to repair and keep these fire-arms, throughout remained in their lawful possession and control. It is maintained that the delivery of possession contemplated by Section 29(b) is something more than entrusting the arms to an agent for the limited purpose of repairs. In support of this contention, Mr. Gupta has cited several decisions. Particular reliance has been placed on Manzur Hussain v. Emperor Sadh Ram v. State; Emperor v. Harpal Rai; A. Malcom v. Emperor; Emperor v. Koya Hansji; Parmeshwar Singh v.

328

Emperor; Gunwantlal v. State of Madhya Pradesh; and Sullivan v. Earl of Caithness.

Reference was also made to Halsbury's Laws of England, Vol. 25, Third Edition, page 874, and Salmond's Jurisprudence, 11th Edition.

It was next contended that even if the term "possession" in Section 29(b) is susceptible of two interpretations, the one favourable to the accused be adopted. In this connection reference has been made to Woodage v. Moss.

The last submission of Mr. Gupta is that since these criminal proceedings have been brooding over the heads of the respondents for the last eight years, this Court should not, even if it reverses the opinion of the courts below, direct the Magistrate to frame charges against the respondents and to proceed with the trial. It is emphasised that in any event, the offence disclosed against the respondents was purely technical.

"Possession" is a polymorphous term which may have different meanings in different contexts. It is impossible to work out a completely logical and precise definition of "possession" uniformly applicable to all situations in the contexts of all statutes. Dias & Hughes in their book on Jurisprudence say that if a topic ever suffered from too much theorizing it is that of "possession". Much of this difficulty and confusion is (as pointed out in Salmond's Jurisprudence, 12th Edition, 1966) caused by the fact the possession is not purely a legal concept. "Possession", implies a right and a fact; the right to enjoy annexed to the right of property and the fact of the real intention. It involves power of control and intent to control. (See Dias and Hughes, ibid)

According to Pollock & Wright "when a person is in such a relation to a thing that, so far as regards the thing, he can assume, exercise or resume manual control of it at pleasure, and so far as regards other persons, the thing is under the protection of his personal presence, or in or on a house or land occupied by him or in any receptacle belonging to him and under his control, he is in physical possession of the thing".

While recognising that "possession" is not a purely legal concept but also a matter of fact; Salmond (12th Edition, page 52) describes "possession, in fact", as a relationship between a person and a thing. 329

According to the learned author the test for determining "whether a person is in possession of anything is whether he is in general control of it".

In Gunwantlal (ibid), this Court while noting that the concept of possession is not easy to comprehend, held that in the context of Section 25(a) of the Arms Act, 1959, the possession of a fire-arm must have, firstly, the element of consciousness or knowledge of that possession in the person charged with such offence, and secondly, he has either the actual physical possession of the fire-arm, or where he has not such physical possession, he has nonetheless a power or control over that weapon. It was further recognised that whether or not the accused had such control or dominion to constitute his possession of the fire-arm, is a question of fact depending on the facts of each case. In that connection, it was observed: "In any disputed question of possession, specific facts admitted or proved will alone establish the existence of the de facto relation of control or the dominion of the person over it necessary to determine whether that person was or was not in possession of the thing in question".

With this guiding criterion in mind, the Magistrate had to see whether the facts alleged and sought to be proved by the prosecution prima facie disclose the delivery of the fire-arms by the respondents into the possession of Mrityunjoy Dutta, without previously ascertaining whether the recipient had any licence to retain and repair those fire-arms within the contemplation of Section 29(b). It may be remembered that the case was at the stage of framing charges; the prosecution evidence had not yet commenced. The Magistrate had therefore, to consider the above question on a general consideration of the materials placed before him by the investigating police officer. At this stage, as was pointed out by this Court in State of Bihar v. Ramesh Singh, the truth, veracity and effect of the evidence which the prosecutor proposes to adduce are not to be meticulously judged. The standard of test, proof and judgment which is to be applied finally before finding the accused guilty or otherwise, is not exactly to be applied at the stage of Section 227 or 228 of the Code of Criminal Procedure, 1973. At this stage, even a very strong suspicion founded upon materials before the Magistrate, which leads him to form a presumptive opinion as the existence of the factual ingredients constituting the offence alleged; may justify the framing of charge against the accused in respect of the commission of the offence.

330

Now, in the instant case, at that initial stage, it was apparent from the materials before the Magistrate, that the basic facts proposed to be proved by the prosecution against the accused-respondents were as follows:

(a) That the respondents held licences, inter alia, in Form IX for repairing and dealing in fire-arms at the place of business, factory or shop specified in the Column 3 of their licences.

(i) The respondents handed over the fire-arms in question to Mrityunjoy Dutta for repairs.

(ii) Mrityunjoy Dutta did not have any license for repairing or dealing in fire-arms;

(iii) (a) Mrityunjoy Dutta was doing the repair job in respect of these fire-arms at his own residence-cum-workshop which was situated at a place different from the business places specified in the licences of the respondents. (b) The fire-arms in question were seized from the workshop-cum-house in the occupation and control of Mrityunjoy Dutta, when the latter was actually in the act of repairing working on a revolver.

There is nothing in these materials to show that at the time of the seizure of these fire-arms, any of the respondents or any Manager of their concerns, was found present and personally supervising the repair work that was being done by the mechanic, Mrityunjoy Dutta. These positive and negative facts, in conjunction with other subsidiary facts, appearing expressly or by implication from the materials which were before the Magistrate at that initial stage were, at least, sufficient to show that there were grounds for presuming that the accused-respondents had committed offences under Sections 29(b) and 30 of the Act. Facts (iii) (a) & (b) listed above, inferentially show that by handing over the fire-arms to Mrityunjoy Dutta to be repaired at the latter's independent workshop, the respondents had divested themselves, for the time being, not only of physical possession but also of effective control over those fire-arms. There is nothing in those materials to show that before handing over those fire- arms to Mrityunjoy Dutta for repairs, the respondents had done anything to ascertain that Mrityunjoy Dutta was legally authorised to retain those arms even for the limited purpose of repairing them. Thus, prima facie the materials before the Magistrate showed that the respondents had delivered the fire-arms in question into the possession of Mrityunjoy Dutta, without previously ascertaining that he was legally authorised to have the same in his pos-

331

session, and as such, the respondents appeared to have committed and offence under Section 29(b) of the Act. Further, by allowing the fire-arms to be removed to a place other than the places of their business or factory specified in Column 3 of their licences in Form IX, the respondents appear to have contravened condition 1(c) of their licence, the material part of which reads as under: "(c) This licence is valid only so long as the licensee carries on the trade or business in the permises shown in Column 3 thereof.. "

Contravention of any condition of the licence amounts to an offence punishable under Section 30 of the Act. In sum, the materials before the Magistrate, prima facie disclosed the commission of offences under Sections 29(b) and 30 of the Act by respondents 1 to 4. The Magistrate was thus clearly in error in discharging these accused-respondents.

We do not think it necessary to notice and discuss in detail the various decisions cited by the counsel at the bar, because, as mentioned earlier, the question whether a particular person is or continues to be in possession of an arm (in the context of the Act) is, to a substantial extent, one of fact. This question, often resolves into the issue: whether that person is or continues to be, at the material time, in physical possession or effective control of that arm. This issue, in turn, is a mixed issue of fact and law, depending on proof of specific facts or definite circumstances by the prosecution.

At this preliminary stage, therefore, when the prosecution has yet to lead evidence to prove all the facts relevant to substantiate the ingredients of the charge under Section 29(b) levelled against these respondents, a detailed discussion of the principles enunciated in the cited decisions, is apt to partake of the character of a speculative exercise.

It will be sufficient to say in passing that almost all the decisions of the High Courts cited before us were cases under the 'Old' Arms Act (Act 11 of 1878). The ratio of cases decided under the 'Old' Act should not be blindly applied to cases under the Act of 1959 which has, in several aspects modified or changed the law relating to the regulation of arms. For instance under the 'Old' Act, repairing of arms without a licence, was not punishable, as 'repair' was different and distinct

332

from manufacture. In Murli v. Crown and Tola Ram v. Crown it was held that a person in temporary possession of arms without a licence, for repairing purposes was not guilty under Section 19 of the Act of 1878. But section 5 of the present Act of 1959, has materially altered this position by requiring the obtaining of a licence for-repairing fire-arms (or other arms if so prescribed). Further, the word "keep" occurring in Section 5 of the 'Old' Act has been replaced by the words "have in his possession" in the present Section. Then in three of these cases, namely, Manzur Husain, Sadh Ram v. State, Emperor v. Harpal Rai, the license-holder sent his licensed firearm for repairs through a person who had the license-holders' oral authority, expressly or impliedly given, to carry it to the repairer. It was held that the carrier, though he held no licence to keep the fire-arm, could not be said to be in "possession" of it, nor could the license-holder be said to have parted with the "possession" of the fire-arm or delivered its possession to an unauthorised person. Similarly, in one of the cases cited, the license-holder sent his fire-arm to the Magistrate through his servant or agent for getting the licence renewed. In that case also, it was held that the servant was not guilty of any offence for having in his possession or "carrying" a gun without a licence. The possession was held to be still with the license-holder- owner of the weapon.

The rule enunciated in these decisions has been given a limited recognition in the Proviso to Section 3 of the Act of 1959. Under this Proviso, if a licensed weapon is carried to an authorised repairer by another having no licence, he will not be guilty for carrying that fire-arm, if he has a written authority of the license-holder for carrying that weapon to a repairer. Similarly, for carrying a licensed fire-arm to the appropriate authority for renewal of the license, written authority of the owner of the weapon is essential to bring him within the protection of the Proviso. In some of these cases referred to by the counsel, a person was carrying or was in custody of a licensed weapon for use by the licensee. Now, the Proviso to Section 3 of the present Act, protects such carriers or custodians of weapons for use by the license holder, only if they do so in the presence of the license-holder concerned. We have referred, by way of example, some of these changes brought about by the Act of 1959, only to impress on the trial court that in considering the application of the ratio of the cases decided under the Act of 1878, to those under the present Act great caution and discernment is necessary. 333

For all the reasons aforesaid, we allow this appeal and set aside the orders of the Courts below whereby respondents 1 to 4, herein, were discharged. Although offences under Section 29(b) and 30 of the Act are summons cases, the Magistrate has followed the warrant procedure, obviously because an offence under Section 25 of the Act, for which Mrityunjoy Dutta was being jointly tried with Respondents 1 to 4, was a warrant case. Moreover, trial of a summons case as a warrant case does not amount to an illegality, but is a mere irregularity that does not vitiate the trial unless there is prejudice. We therefore, send the case back to the trial Magistrate with the direction that he should frame charges in respect of offences under Sections 29(b) and Section 30 of the Act against the accused- respondents 1 to 4 and proceed further with the trial in accordance with law. We decline the submission made on behalf of these respondents that on account of their prolonged harassment and expense, which are the necessary concomitants of protracted criminal proceedings extending over eight years, they should not be put on trial now for offences which, according to the counsel, are merely technical. Even so, we think, this is a circumstance to be taken into consideration by the trial court in fixing the nature and quantum of sentence, in the event of the accused being found guilty.

Before parting, with this judgment, we will however, set it down by way of caution that the Magistrate while assessing the evidence and recording his findings on its basis with regard to proof or otherwise the factual ingredients of the offences with which the accused may stand charged, shall not allow himself to be unduly influenced by anything said in this judgment in regard to the merits of the case.

N.V.K. Appeal allowed.

334

http://www.indiankanoon.org/doc/1985622/

SC – Citation for Discharge U/s 239 CrPC Stree Atyachar Virodhi Parishad Vs. Dilip N. Chartia 1989 (1) SCC 715

SC – Citation for Discharge U/s 239 CrPC  Stree Atyachar Virodhi Parishad Vs. Dilip N. Chartia 1989 (1) SCC 715

CITATION - , 1989( 1  )SCR 560, 1989( 1  )SCC 715, 1989( 1  )SCALE330 , 1989( 1  )JT 247

 

PETITIONER:
STREE ATYACHAR VIRODHI PARISHAD ETC. ETC.

    Vs.

RESPONDENT:
DILIP NATHUMAL CHORDIA & ANR.

DATE OF JUDGMENT08/02/1989

BENCH:
SHETTY, K.J. (J)
BENCH:
SHETTY, K.J. (J)
RAY, B.C. (J)

CITATION:
1989 SCR  (1) 560      1989 SCC  (1) 715
JT 1989 (1)   247      1989 SCALE  (1)330

ACT:
    Criminal Procedure Code, 1973: ss. 227 & 22.8:  Sessions
Judge    framing      charge  and  making    order    in   support
thereof--High     Court     whether   has      jurisdiction      to
interfere--Law must be allowed to take its own course unless
glaring injustice found.
    Indian   Penal  Code,  1860:  ss.  304B  &     498A--Dowry
offence-All round attempt to cover up by family members than
to  expose it-Necessity .for investigating agency  to  pene-
trate every dark corner and collect all evidence--Courts  to
display     greater sensibility to criminality and     avoid    soft
justice.

HEADNOTE:
    The     deceased was seen in flames on the first  floor  of
her  in-laws house crying for help within five days  of     her
marriage  with the younger brother of the respondent.  While
neighbours rushed to her rescue and extinguished the flames,
the  inmates of the house did not render any such help.     The
respondent  who was on the first floor was seen coming    down
the  stairs. The deceased succumbed to the burn injuries  in
the  hospital  on  the same day. In  her  dying     declaration
recorded  by the Executive Magistrate, she stated that    when
she  was preparing tea in the kitchen her saree caught    fire
accidently.
    The     parents of the deceased suspected foul play by     her
in-laws     and lodged a report with the police. An  investiga-
tion.of the case revealed that the deceased had met  hostile
atmosphere soon after her marriage. The parents gave  state-
ments  that  the in-laws demanded unreasonable    dowry  which
could not be complied with and that at the wedding  ceremony
they had behaved badly on the payment of insufficient dowry.
Her  brother  who had gone to bring her back  home  was     not
permitted to meet her. The maid servant sent along with     her
was also sent back.
     The respondent and his father were charge sheeted under
s.  306     read with s. 34 I.P.C. The trial court     came  to  a
prima facie conclusion that it was not a suicide but homici-
dal  death.  Accordingly, a charge under s. 302     I.P.C.     was
framed against the respondent. The respondent's father    was,
however, discharged.
561
    The     High Court dismissed the revision petition  of     the
State  against the respondent's father. Wile  accepting     the
respondent's  revision it took the view that the  fact    that
the  accused was passive was of no consequence that  it     all
depends upon the mental response and reaction of an individ-
ual whether he faces the risk and attempts to extinguish the
flames    or  quietly watches the incident, that it  does     not
show that the accused actively committed the act of  burning
or  actively added the commission of suicide, and held    that
the  charge under s. 302 against him was not made  out,     and
there was not even a case against him to frame charge  under
s. 306 I.P.C.
    The     appellant,  a social welfare organisation  and     the
State preferred appeals to the Supreme Court.
    On the question: Whether the High Court was justified in
interfering  with  the    charge framed  by  the    trial  court
against the respondent, and whether it was necessary to     put
his father also on trial with
the material on record.
Partly allowing the criminal appeals,
    HELD: 1. The High Court was not justified in interfering
with  the charge framed by the trial court against  the     re-
spondent accused.
    2.    The  trial court had considered     every    material  on
record    in support of the charge framed. It had     also  given
reasons     why  a     charge under s. 302  I.P.C.  was  warranted
against     the respondent even though the police    had  charge-
sheeted     him under s. 306 I.P.C. Section 227  Cr.P.C.  which
confers     power to discharge an accused was designed to    pre-
vent  harassment to an innocent person by the arduous  trial
or  the ordeal of prosecution. The power has been  entrusted
to  the Sessions Judge who brings to hear his knowledge     and
experience  in    criminal  trials. If he     after    hearing     the
parties     frames a charge and also makes an order in  support
thereof, the law must be allowed to take its own
course.
    State  of  Bihar v. Ramesh Singh, [1978] 1 SCR  257     and
Union of India v. Prafulla Kumar Samal & Anr., [1979] 2     SCR
229 at 234-35, referred to.
    3.    Self restraint on the part of the High Court  should
he  the rule unless there is glaring injustice    staring     the
Court in the face. In the
562
instant case, it had discharged the respondent mainly  rely-
ing on the dying declaration as if it has been    conclusively
proved to be the true and faithful version of the  deceased.
It did not advert to the report of the Chemical Analyser  in
which he found kerosene residue on each and every garment of
the  deceased,    and the post-mortem report  which  indicated
that besides burn injuries the deceased had sustained contu-
sions  on  the back shoulders which might have    been  caused
with  a     blunt round object. The events     that  preceded     the
death  of the deceased also did not receive  any  considera-
tion. The statements of brother, father and the maid servant
of  the deceased have been ignored. The respondent was    seen
coming down from the staircase when the deceased was  crying
for  help. The manner in which he went on at that  time,  if
true,  did  not bring him credit. The approach made  by     the
High  Court,  therefore, cannot be  accepted.  [569C;  566H;
567A-C]
    4. Although it was the moral obligation of    respondent's
father as manager of the family to protect the deceased     and
safeguard her life and he had failed to perform that obliga-
tion, that by itself without anything more is not sufficient
to  frame a charge against him. The discretion exercised  by
the trial court in discharging him was, therefore,  correct.
[569E]

JUDGMENT:
    CRIMINAL  APPELLATE JURISDICTION: Criminal    Appeal    Nos.
486 to 489 of 1984.
    From the Judgment and Order dated 5.4.1984 of the Bombay
High  Court in Criminal Revision Application No. 166/83     and
Criminal Revision No. 234 of 1983 respectively.
    M.C. Bhandare, A.M. Khanwilkar and Mrs. H. Wahi for     the
Appellants.
S.B. Bhasme and R.A. Gupta for the Respondents.
The Judgment of the Court was delivered by        .
    K.    JAGANNATHA SHETTY, J. These four appeals, by  leave,
arise out of the common judgment of Bombay High Court  dated
April 5, 1984 in Criminal Revision Applications 166 and     234
of 1983. Criminal Appeal Nos. 486 and 487 of 1984 have    been
preferred by an Organisation called "Stree Atyachaar Virodhi
Parishad". It is an association committed to prevent atroci-
ties on women. Criminal Appeal Nos. 488 and 489 of 1984     are
by the State of Maharashtra.
563
    The     case relates to the death of a newly  married    girl
called    Chanda.     On  June 15, 1981, Chanda  was     married  to
Ramesh.     The  eider brother of Ramesh is  called  Dilip     and
Nathumal is their father. The marriage of Ramesh and  Chanda
took place at Nerparsopant, District Yavatmal.
    On    the  next day of the marriage, the bride  and  groom
returned  to  the house of the latter at Arvi. On  June     19,
1981, they had gone to Amravati to have prayers in the    Devi
Tampie. They came back in the same evening. The day  follow-
ing  was a fateful day. At about 2.30 PM on June  20,  1981,
Chanda was seen with flames on the first floor of the  resi-
dential     building,  with frantically crying for     help.    That
attracted some of the neighbours from the ground floor. They
rushed    to rescue Chanda. Three of them are: Bhanrao,  Ballu
alias  Nandu and Ramdas. They extinguished the    flame  which
was practically engulfing Chanda. The inmates in the  house,
however, did not render any such help. Dilip who was on     the
first  floor  was  seen coming down  the  stairs..  Shortly,
thereafter  two     doctors came and the police  also  arrived.
Chanda was taken to Ervin Hospital at Amravati in an  uncon-
scious condition. She died in the hospital at about 9.00  pm
on the same day. Before the death, her dying declaration was
said  to have been recorded by the Executive Magistrate.  It
was  stated therein that when she was preparing tea  in     the
kitchen, her saree caught fire accidentally and consequently
she received the burn injuries.
    The     parents of Chanda were informed of the death.    They
suspected foul play by the in-laws of Chanda. They lodged  a
report at Amravati Police Station complaining that  Chanda's
death  might have been the outcome of tension due to  demand
of dowry. The Crime Branch of the CID investigated the    case
and  charge-sheeted Dilip and Nathumal under sec.  306    read
with sec.34 IPC. It was alleged that the Chanda has  commit-
ted suicide by burning herself and Dilip and Nathumal  abet-
ted her.
    An    investigation of the case revealed that     Chanda     had
hostile     atmosphere  soon after her marriage.  She  was     not
treated well in her husband's house. Vijay, her brother     and
Mani  Chand, father have given statements that    the  in-laws
demanded  unreasonable    dowry which could  not    be  complied
with.  Even  at the wedding ceremony, it  seems,  that    they
behaved     badly on the payment of insufficient  dowry.  After
the  marriage, when Vijay came to take his sister back    home
as per custom, he was not even permitted to meet her. Kamala
Bai,  the  maid servant accompanying Chanda  was  also    sent
back. She has also
564
given  detailed     version about the  unfavourable  atmosphere
around Chanda.
    In    addition to the statements of witnesses, there is  a
report    of  the Chemical Analyser  and    post-mortem  report.
These  indicate     that the death of Chanda could     not  be  by
accidental fire.
    The     trial    court after considering all  the  facts     and
circumstances  appearing  on record and     after    heating     the
counsel     for  accused and Public Prosecutor  was  of  priraa
facie opinion that it was not a suicide but homicidal death.
Accordingly,  the  charge  under sec.  302  IPC     was  framed
against     Dilip.     Nathumal, however, was     discharged  holding
that the allegations against him do not justify the  framing
of any charge.
    There  were     two revision applications before  the    High
Court of Bombay. The State filed a revision challenging     the
validity  of discharge of Nathumal. Dilip on his part  ques-
tioned the correctness of the charge framed against him     and
demanded  his discharge also. The High Court  dismissed     the
revision preferred by the State while accepting the revision
of  Dilip.  The High Court was of opinion  that     the  charge
under  sec. 302 against Dilip was misconceived and there  is
not  even a case against him to frame charge under sec.     306
IPC. He was accordingly discharged.
    The     primary  question for consideration before  us,  is
whether the High Court was justified in interfering with the
charge    framed    by the trial court against Dilip?  The    next
question to be considered is whether it is necessary to     put
Nathumal also on trial with the material on record.
    We    have perused the judgments of the courts  below     and
heard counsel on both sides. We gave our anxious  considera-
tion to the material on record.
    Section  227  of the Code of Criminal  Procedure  having
beating on the contentions urged for the parties, provides:
            "227. Discharge--If, upon considera-
          tion  of the record of the case and the  docu-
          ments  submitted therewith, and after  hearing
          the submissions of the accused and the  prose-
          cution  in  this behalf, the  judge  considers
          that  there is no sufficient ground  for    pro-
          ceeding  against    the accused, he     shall    dis-
          charge the accused and record his reasons     for
          so doing."
565
    Section  228  requires the judge to frame charge  if  he
consider that there is ground for presuming that the accused
has  committed    the offence. The interaction  of  these     two
sections  has already been the subject matter of  considera-
tion  by  this    Court. In State of Bihar  v.  Ramesh  Singh,
[1978]    1 SCR 257, Untwalia, J., while explaining the  scope
of the said sections observed (at 259):
               "Reading the two provisions  together
          in juxta pesition, 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  Prosecu-
          tor  proposes to adduce are not to be  meticu-
          lously  judged.  Nor is any weight to  be     at-
          tached 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 finding regarding the guilt or other-
          wise  of    the  accused is not  exactly  to  be
          applied  at the stage of deciding     the  matter
          under  sec.  227 or sec. 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."
    In Union of India v. Prafulla Kumar Samal & Anr., [1979]
2  SCR 229 at 234-35, Fazal Ali, J., summarised some of     the
principles:
            "(1) That the Judge while  consider-
          ing the question of flaming the charges  under
          sec.  227 of the Code has the undoubted  power
          to sift and weigh the evidence for the limited
          purpose of finding out whether or not a  prima
          facie  case against the accused had been    made
          out.
            (2) Where the material placed before
          the Court disclose grave suspicion against the
          accused which has not been properly explained,
          the Court will be fully justified in
          566
          framing  a  charge and   proceeding  with     the
          trial.
            (3)  The test to determine  a  prima
          facie  case  would naturally depend  upon     the
          facts of each case and it is difficult to     lay
          down  a rule of universal application. By     and
          large,  however,    if  two     views    are  equally
          possible    and the Judge is satisfied that     the
          evidence produced before him while giving rise
          to  some    suspicion but  not  grave  suspicion
          against  the accused, he will be fully  within
          his right to discharge the accused.
            (4) That in exercising his jurisdic-
          tion  under the present Code is a     senior     and
          experienced Judge cannot act merely as a    Post
          Officer  or a mouth-piece of the    prosecution,
          but has to consider the broad probabilities of
          the case, the total effect of the evidence and
          the  documents produced before the Court,     any
          basic infirmities appearing in the case and so
          on. This however, does not mean that the Judge
          should make a roving enquiry into the pros and
          cons  of the matter and weigh the evidence  as
          if he was conducting a trial."
    These  two decisions do not lay down  different  princi-
ples. Prafulla Kumar case has only reiterated what has    been
stated    in Ramesh Singh case. In fact, sec. 227 itself    con-
tains  enough guidelines as to the scope of enquiry for     the
purpose     of  discharging an accused. It provides  that    "the
Judge  shall  discharge when he considers that there  is  no
sufficient  ground for proceeding against the accused".     The
'ground' in the context is not a ground for conviction,     but
a  ground  for putting the accused on trial. It     is  in     the
trial,    the  guilt or the innocence of the accused  will  be
determined  and     not at the time of framing of    charge.     The
Court, therefore, need not undertake an elaborate enquiry in
sifting     and weighing the material. Nor it is  necessary  to
delve  deep into various aspects. All that the Court has  to
consider  is whether the evidenciary material on  record  if
generally  accepted,  would reasonably connect    the  accused
with the crime. No more need be enquired into.
    So much is, we think, established law. To be fair to the
accused,  we have examined the material on record  and    also
perused     the statements of some of the witnesses.  From     the
report of the Chemical Analyser, it will be seen that  kero-
sene  residue  was found on each and every  garment  of     the
deceased. The post-mortem report also indicates,
567
besides burn injuries, that Chanda had sustained  contusions
on the back shoulders. According to the doctor who conducted
the postmortem, those contusions might have been caused with
the  blunt  rounded object. The learned Judge  of  the    High
Court  has not adverted to these facts although the  conten-
tion  of the Public Prosecutor in this regard has  been     no-
ticed. Not merely that, the events that proceeded the  death
of Chanda did not receive any consideration. The  statements
of  brother  and father of Chanda and also  that  of  Kamala
Bai--the  maid    servant     of Chanda have     been  ignored.     The
conduct     of Dilip which was highlighted in the    context     and
circumstances,    was brushed aside with little  significance.
It  is    said that Dilip was coming down from  the  staircase
when Chanda was crying for help. The manner in which he went
on at that time, if true, did not bring him credit. The High
Court, however, said:
            "That  the  accused was     passive  is
          neither  here nor there. It all  depends    upon
          the  mental response and reaction of an  indi-
          vidual  whether he faces the risk and  attempt
          to  extinguish the flames or  quietly  watches
          the incident. By no interpretation could it be
          stretched     to  show that    the  accused  either
          actively    committed the act of burning or     ac-
          tively aided the commission of suicide."
    Counsel for the State was very critical of the  attitude
adopted     by  the High Court in dealing with  the  case.     His
criticism to some extent is not unjustified.
    It may not be out of place to mention that "dowry" which
is a deep rooted social evil appears to be the cause of ever
so many unfortunate death of young ladies. It is an  offence
brutal    and barbaric. It is generally committed     inside     the
house and more often with a circumstance to give an  impres-
sion  that it was a suicidal death. There will be all  round
attempt     to  cover  up such offence by    the  family  members
rather    than to expose it. The Government has  come  forward
with legislations from time to time to protect women and  to
punish    those  who commit attrocities on them. In  1961     the
Dowry Prohibition Act (Act 28 of 196 1) was passed prohibit-
ing the taking or giving dowry. By the Criminal Law  (Second
Amendment)  Act,  1983    (Act 46 of 1983)  Chapter  XX-A     was
introduced in the Penal Code with sec. 498-A creating a     new
offence of cruelty. It provides for punishment to husband or
his  relatives if they harass a woman with a view to  coerce
her to meet any unlawful demand for property. Section 174 of
the  Criminal  Procedure  Code was also     amended  to  secure
post-mortem in
568
case  of suicide or death of a woman within seven  years  of
her  marriage.    Section     113-A has been     introduced  in     the
Evidence Act, 1872 raising presumption of cruelty as defined
under sec. 498-A IPC against the husband or his relatives if
the wife commits suicide within a period of seven years from
the  date  of  her marriage. These  provisions    reflect     the
anxiety of the representatives of our people to deal  firmly
the  menace  of     dowry deaths.    Again,    there  are  sweeping
changes made in the Dowry Prohibition (Amendment) Act, 1984.
A  new    offence     called 'Dowry death' has  been     created  by
introducing sec. 304-B in the Penal Code. It raised presump-
tion of culpability against the husband or relative hitherto
unknown     to  our jurisprudence. It provides that  where     the
death  of a woman is caused by any bums or bodily injury  or
otherwise than under normal circumstances within seven years
of  her marriage and it is shown that soon before her  death
she was subjected to cruelty or harassment by her husband or
any  relative of her husband for or in connection  with     any
demand for dowry, such death shall be called 'dowry  death'.
The  section  also provides  hat such  husband    or  relative
shall  be deemed to have caused her death and shall be    pun-
ished  with  imprisonment for a minimum of seven  years     but
which may extend to life imprisonment.
    We    are referring to these provisions not that they     are
attracted to the present case. It is only to emphasize    that
it  is    not enough if the legal order  with  sanction  alone
moves  forward for protection of women and  preservation  of
societal  values. The criminal justice system  must  equally
respond to the needs and notions of the society. The  inves-
tigating  agency  must display a live  concern    and  sharpen
their  wits. They must penetrate into every dark corner     and
collect all the evidence. The Court must also display great-
er sensitivity to criminality and avoid on all counts  "soft
justice".
    In the instant case the trial court has considered every
material  on  record in support of the    charge    framed.     The
trial  court has also given reasons why a charge under    sec.
302  IPC is warranted against Dilip even though     the  police
charge    sheeted him under sec. 306 IPC. The High  Court     has
gone on a tangent mainly relying on the dying declaration as
if it has been conclusively proved to be the true and faith-
ful version of the deceased. Apart from that, we are  unable
to  compromise    ourselves  with the approach  made  and     the
opinion     expressed by the High Court in respect of  many  of
the matters.
    We wish to add a word regarding interference by the High
court against a charge framed by the Sessions Court. Section
227 which
569
confers     power to discharge an accused was designed to    pre-
vent  harassment to an innocent person by the arduous  trial
or  the ordeal of prosecution. How that intention is  to  be
achieved  is  reasonably clear in the  section    itself.     The
power has been entrusted to the Sessions Judge who brings to
bear  his knowledge and experience in criminal    trials.     Be-
sides, he has the assistance of counsel for the accused     and
Public Prosecutor. He is required to hear both sides  before
framing     any charge against the accused or  for     discharging
him. If the Sessions Judge after hearing the parties  frames
a charge and also makes an order in support thereof, the law
must  be allowed to take its own course. Self  restraint  on
the  part of the High Court should be the rule unless  there
is  a  glaring injustice stares the Court in the  face.     The
opinion     on any matter may differ depending upon the  person
who views it. There may be as many opinions on a  particular
matter as there are courts but it is no ground for the    High
Court  to  interdict the trial. It would be better  for     the
High Court to allow the trial to proceed.
    The counsel for the State was equally critical upon     the
discharge of Nathumal. It was argued that Nathumal being the
manager of the family ought to have taken care of Chanda and
without     his connivance, none would have demanded dowry     and
put Chanda on fire. It is true that it is his obligation  as
manager     of the family to protect Chanda and  safeguard     her
rights.     We have no doubt that he has failed to perform     his
moral  obligation. But that by itself without anything    more
is not sufficient to frame a charge against him. We,  there-
fore, agree with the discretion exercised by the trial court
and leave it at that.
    In    the result and for the reasons stated, we allow     the
criminal  appeals  to the extent indicated only     as  against
Dilip. We set aside the order of the High Court and  restore
that  of the trial court. The appeals against  Nathumal     are
dismissed.  His discharge is confirmed. We direct the  court
to proceed with the trial expeditiously.
    Before  parting with the case, we must place  on  record
the useful service rendered by 'Stri Atyachar Virodhi  Pari-
shad' in this case. It is a social welfare organisation.  It
has come up to this Court spending its own money by  prefer-
ring the appeals. We very much appreciate the object of     the
organisation and the assistance rendered-
P.S.S.                      Appeals    allowed
partly.
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