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CASE NO.: Appeal (crl.) 304  of  2001

PETITIONER: SMT.OM WATI & ANR.

       Vs.

RESPONDENT: STATE, THROUGH DELHI ADMN. & ORS.

DATE OF JUDGMENT:       19/03/2001

BENCH: K.T. Thomas & R.P. Sethi

JUDGMENT:

SETHI,J.

       Leave granted. L...I...T.......T.......T.......T.......T.......T.......T..J

   The  present case reflects and demonstrates the abuse of the  process  of the court by the accused persons  who  have succeeded  in protracting the commencement of trial  against them  for  about a decade.  The accused have left  no  stone unturned  to  exploit the procedural wrangles to defeat  the ends  of justice.  A learned Single Judge of the High  Court of  the  Delhi  appears  to  have   fallen  a  prey  to  the procrastinative  designs  of the accused-respondent,  as  is evident  from the cryptic order passed on 29th August,  2000 which  is impugned in this appeal by special leave filed  by the  mother  of the deceased after seeking  permission  from this  Court.   The impugned order not only reflects the  non application  of mind by the learned Single Judge of the High Court  while  discharging  the respondents for  the  offence punishable  under  Section 302 of the Indian Penal Code  but also  demonstrates  the ignoring of the correct position  of law  applicable  on  the  point   and  catena  of  judgments pronounced by this Court on the subject.

   The  facts  of the case are that in an occurrence  which took  place  on  6.9.1991,  Rajesh Kumar,  the  son  of  the appellant  was  beaten to death by the accused  persons  who were  alleged to have attacked him with weapons like  Hockey Sticks,  Lathis  and Iron Chain of Bullet  Motorcycle.   The accused  persons are stated to have been arrested after some days  and  their application for bail was dismissed  by  the trial court on 23rd December, 1991.  The Additional Sessions Judge,  being the trial court framed charges against all the accused  persons  on 16.7.1992 against which a petition  was filed in the High Court.  It is not clear but it is admitted that meanwhile the accused were released on bail by the High Court.   The  Criminal Revision No.97 of 1992 filed  by  the respondents  was  disposed of by the High Court  after  four years by quashing charges framed with direction to the trial court  to  pass "an order delineating reasons in  sufficient detail  to lend assurance to the accused, the public and the

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court  that  sufficient  judicial thought is at  its  back". Again  on 4.2.1998, the trial court as per a detailed  order directed  the framing of charges against the accused persons under  Sections  302, 147, 148 read with Section 149 of  the Indian Penal Code.  The accused respondents who were on bail again ventured to accomplish their design of frustrating the judicial process by filing a Revision Petition No.87 of 1998 which  has  been  disposed of by the High Court as  per  the following order:

   "Head  learned  counsel  for  the  petitioners  as  also learned  counsel for the State and perused the documents  on record,  in particular, the post-mortem report, I am of  the view  that  the charge under Section 302 IPC cannot be  made out.   In this view of the matter, I quash the charge framed under Section 302 IPC and direct the trial court to re-frame the  charge  in accordance with law based upon  material  on record.  The revision petition is allowed."

   While  issuing  notice on 11.12.2000, we  suspended  the impugned  order  of  the High Court and directed  the  trial court  to  proceed with the case.  We further  directed  the trial  court  to  permit the counsel of the  mother  of  the deceased  to assist the Public Prosecutor if any application is filed in that behalf.

   Justifying the impugned order Shri Ranjit Kumar, learned Senior  Counsel argued that as there was no evidence,  worth the  name to connect the accused with the commission of  the crime,  the  High Court was justified in passing the  order. He, however, was frank in conceding that the order passed by the  High Court was not a speaking order.  It was  contended on  behalf  of the accused persons that as  the  post-mortem report  did not indicate any head injury on the deceased and the  doctors had further opined that "the death in this case is  possibly by hepatic failure following riral  hapatites", there  was  no  necessity of putting the accused  to  trial. Learned  counsel,  however,  has been very cautious  not  to argue  on merits and rightly so because any comment by us on the merits is likely to prejudice the case of the accused or the prosecution.

   Before  dealing with the position of law, some facts are necessary  to  be  noticed at this stage.  As  per  the  FIR lodged  by  the  appellant  on 7.9.1991,  the  deceased  had objected  to  the  conduct of accused Balraj,  Narender  and Vijay  for having an evil eye on his cousin sister whom  the aforesaid  three  accused used to tease and  abuse  whenever they got the opportunity.  The deceased was subjected to the beating  by  the aforesaid accused persons in the  month  of July,  1991  regarding  which a report was lodged  with  the police.   After knowing about the beating of his son on  the day of occurrence, the appellant is stated to have rushed to the  spot where her son told that accused Balraj had given a Hockey  blow on his head, accused Narender had given beating with  chain of Bullet Motorcycle and accused Vijay assaulted him  with  a  lathi  on the  instigation  of  other  accused persons.  Statement of one Ashok Kumar, under Section 161 of the  Code of Criminal Procedure (hereinafter referred to  as "the  Code"), who claimed to be an eye-witness, was recorded by  the police on 7.9.1991 wherein he had supported what the appellant had stated about the infliction of injuries on her son.   The accused persons and the deceased were arrested by the  Police  under Sections 107/151 of the Code.  As he  was beaten  by  the accused persons, the deceased complained  of

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pain  on  all  parts  of his  body  which  necessitated  his admission  in  Deen Dayal Upadyay Hospital wherefrom he  was referred  to  Ram Manohar Lohia Hospital, where he  died  at about  5 a.m.  on 7.9.1991.  After investigation, the  final report  was  submitted against the accused persons who  were charged  by  the  trial court by passing  a  detailed  order firstly on 23rd December, 1991 and after remand on 4.2.1998. The  trial  court  dealt with all  the  arguments  addressed before  it  and held that prima facie there  was  sufficient evidence  to frame charges against the accused persons under various sections of the IPC as noticed hereinabove.

   Section   227  of  the  Code   provides  that  if   upon consideration  of  record  of  the case  and  the  documents submitted  therewith,  the Judge considers that there is  no sufficient  ground  for proceeding against the  accused,  he shall  discharge  the  accused for which he is  required  to record his reasons for so doing.  No reasons are required to be  recorded when the charges are framed against the accused persons.  This Court in Kanti Bhadra Shah & Anr.  vs.  State of  West  Bengal  [2000 (1) SCC 722] held that there  is  no legal requirement that the trial court should write an order showing  the  reasons for framing a charge.  Taking note  of the burden of the pending cases on the courts, it wa s held:

   "Even  in  cases instituted otherwise than on  a  police report  the Magistrate is required to write an order showing the reasons only if he is to discharge the accused.  This is clear  from  Section 245.  As per the first  sub-section  of Section  245, if a Magistrate, after taking all the evidence considers that no case against the accused has been made out which  if unrebutted would warrant his conviction, he  shall discharge   the  accused.   As   per  sub-section  (2)   the Magistrate  is  empowered  to discharge the accused  at  any previous  stage of the case if he considers the charge to be groundless.  Under both sub-sections he is obliged to record his  reasons for doing so.  In this context it is  pertinent to point out that even in a trial before a court of session, the  Judge is required to record reasons only if he  decides to  discharge  the accused (vide Section 227 of  the  Code). But  if  he  is  to frame the charge he may  do  so  without recording his reasons for showing why he framed the charge.

   If  there  is no legal requirement that the trial  court should  write  an  order showing the reasons for  framing  a charge,  why  should  the already burdened trial  courts  be further  burdened  with  such an extra work.  The  time  has reached to adopt all possible measures to expedite the court procedures and to chalk out measures to avert all roadblocks causing  avoidable  delays.   If a Magistrate  is  to  write detailed  orders  at  different stages  merely  because  the counsel   would  address  arguments  at  all   stages,   the snail-paced  progress  of proceedings in trial courts  would further  be slowed down.  We are coming across interlocutory orders  of  Magistrates  and Sessions  Judges  running  into several  pages.  We can appreciate if such a detailed  order has been passed for culminating the proceedings before them. But it is quite unnecessary to write detailed orders at this stage,  such  as issuing process, remanding the  accused  to custody,  framing of charges, passing over to next stages in the  trial.   It  is a salutary guideline that  when  orders rejecting  or  granting  bail are passed, the  court  should avoid expressing one way or the other on contentious issues, except  in cases such as those falling within Section 37  of the Narcotic Drugs and psychotropic Substances Act, 1985".

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   At  the  stage of passing the order in terms of  Section 227 of the Code, the Court has merely to peruse the evidence in  order  to find out whether or not there is a  sufficient ground   for  proceeding  against   the  accused.   If  upon consideration,  the  court is satisfied that a  prima  facie case is made out against the accused, the Judge must proceed to  frame charge in terms of Section 228 of the Code.   Only in  a  case  where it is shown that the evidence  which  the prosecution  proposes  to adduce to prove the guilt  of  the accused,  even if fully accepted before it is challenged  in cross-examination  or  rebutted by defence  evidence  cannot show  that  the accused committed the crime, then  and  then alone the court can discharge the accused.  The court is not required  to enter into meticulous consideration of evidence and  material placed before it at this stage.  This Court in Stree  Atyachar Virodhi Parishad vs.  Dilip Nathumal Chordia &  Anr.  [1989 (1) SCC 715] cautioned the High Courts to  be loathe  in  interfering at the stage of framing the  charges against the accused.  Self-restraint on the part of the High Court should be the rule unless there is a glaring injustice staring  the court in the face.  The opinion on many matters can  differ  depending upon the person who views it.   There may  be as many opinions on a particular point, as there are courts  but  that  would  not  justify  the  High  Court  to interdict the trial.  Generally, it would be appropriate for the High Court to allow the trial to proceed.

   Dealing  with  the scope of Sections 227 and 288 of  the Code  and  the  limitations imposed upon the  court  at  the initial  stage of framing the charge, this Court in State of Bihar vs.  Ramesh Singh [AIR 1977 SC 2018] held:

   "Reading  the two provisions together in  juxtaposition, as  they  have  got  to be, it would be clear  that  at  the beginning  and  the  initial stage of the trial  the  truth, veracity  and  effect of the evidence which  the  prosecutor proposes  to adduce are not to be meticulously judged.   Nor is  any weight to be attached to the probable defence of the accused.   It is not obligatory for the Judge at that  stage of  the  trial  to  consider in any detail and  weigh  in  a sensitive  balance  whether the facts, if proved,  would  be incompatible  with the innocence of the accused or not.  The standard of test and judgment which is to be finally applied before  recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at this stage of deciding  the  matter under S.227 or S.228 of the Code.   At that  stage  the  court  is  not to  see  whether  there  is sufficient  ground for conviction of the accused or  whether the  trial  is  sure  to  end  in  his  conviction.   Strong suspicion  against the accused, if the matter remains in the region  of suspicion, cannot take the place of proof of  his guilt  at  the conclusion of the trial.  But at the  initial stage  if there is a strong suspicion which leads the  court to think that there is ground for presuming that the accused has committed an offence then it is not open to the court to say  that  there  is  no sufficient  ground  for  proceeding against  the  accused.  The presumption of the guilt of  the accused  which is to be drawn at the initial stage is not in the  sense of the law governing the trial of criminal  cases in  France where the accused is presumed to be guilty unless the  contrary is proved.  But it is only for the purpose  of deciding  prima facie whether the court should proceed  with the  trial  or  not.  If the evidence which  the  Prosecutor

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proposes to adduce to prove the guilt of the accused even if fully  accepted before it is challenged in cross-examination or  rebutted  by the defence, if any, cannot show  that  the accused  committed  the  offence,  there there  will  be  no sufficient  ground  for  proceeding   with  the  trial.   An exhaustive  list of the circumstances to indicate as to what will lead to one conclusion or the other is neither possible nor advisable.  We may just illustrate the difference of the law  by  one more example.  If the scales of pan as  to  the guilt or innocence of the accused are something like even at the  conclusion of the trial, then, on the theory of benefit of  doubt  the case is to end in his acquittal.  But if,  on the  other hand, it is so at the initial stage of making  an order  under  S.227  or  S.228, then  in  such  a  situation ordinarily  and  generally the order which will have  to  be made will be one under S.228 and not under S.227."

   A  three-Judge  Bench  of  this   Court  in  Supdt.    & Remembrancer  of Legal Affairs, West Bengal vs.  Anil  Kumar Bhunja  & Ors.  [AIR 1980 SC 52] reminded the courts that at the  initial  stage of framing of charges,  the  prosecution evidence  does  not commence.  The Court has, therefore,  to consider  the  question  of framing the charges  on  general considerations  of  the  material placed before  it  by  the investigating  agency.   At this stage, the truth,  veracity and effect of the judgment which the prosecution proposes to adduce  are not to be meticulously judged.  The standard  of test,  proof  and  judgment which is to be  applied  finally before finding an accused guilty or otherwise is not exactly to  be applied at the stage of framing the charge.  Even  on the  basis of a strong suspicion founded on materials before it,  the court can form a presumptive opinion regarding  the existence  of  factual ingredients constituting the  offence alleged  and  in  that  event be justified  in  framing  the charges  against the accused in respect of the commission of the offence alleged to have been committed by them.  Relying upon  its earlier judgements in Ramesh Singh and Anil  Kumar Bhunja’s  cases (supra) this Court again in Satish Mehra vs. Delhi Administration [1996 (9) SCC 766] reiterated:

   "Considerations  which  should weigh with  the  Sessions Court  at  this stage have been well designed by  Parliament through  Section 227 of the Code of Criminal Procedure  (for short ’the Code’) which reads thus:

   "227.  Discharge--If upon consideration of the record of the  case  and the documents submitted therewith, and  after hearing  the submissions of the accused and the  prosecution in  this  behalf,  the  Judge considers that  there  is  not sufficient  ground  for proceeding against the  accused,  he shall  discharge  the accused and record his reasons for  so doing."

   Section  228  contemplates  the  stage  after  the  case survives  the  stage envisaged in the former section.   When the court is of opinion that there is ground to presume that the accused has committed an offence the procedure laid down therein  has to be adopted.  When those two sections are put in  juxtaposition  with  each other the test to  be  adopted becomes  discernible:   Is  there   sufficient  ground   for proceeding  against  the accused?  It is axiomatic that  the standard  of proof normally adhered to at the final stage is not  to  be  applied  at  the   stage  where  the  scope  of consideration  is  where  there is  "sufficient  ground  for proceeding".

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   The  trial court, in the instant case, rightly held that merely  on  account  of  the observations  and  the  opinion incorporated  in  the post- mortem report,  the  prosecution could  not  be deprived of its right to prove  that  accused were  guilty  of the offence for which the final report  had been  filed against them.  There was no ground for the  High Court to interfere with the well reasoned order of the trial court  by  passing a cryptic and telegraphic order which  is impugned  in this appeal.  It is not safe, at this stage, to deprive  the prosecution in proving its case on the basis of the  direct evidence, the statement of the deceased  claimed to  be  admissible under Section 32 of the Evidence Act  and the  other documents including the inquest report  allegedly disclosing  the infliction of injuries on the person of  the deceased which resulted in his death.  The acceptance of the opinion  of the doctors, as incorporated in the  post-mortem report for the cause of death of the deceased being "hepatic failure following riral hapatites" cannot be accpeted on its face value at this initial stage.

   We  allow this appeal by setting aside the order of  the High  Court and upholding the order of the trial court.   We would  again  remind  the  High Courts  of  their  statutory obligation  to  not  to interfere at the  initial  stage  of framing  the  charges merely on hypothesis, imagination  and far-fetched  reasons which in law amount to interdicting the trial  against the accused persons.  Unscrupulous  litigants should  be  discouraged  from   protracting  the  trial  and preventing  culmination  of  the criminal  cases  by  having resort  to uncalled for and unjustified litigation under the cloak of technicalities of law.

   It  is,  however,  made clear that  while  deciding  the instant case finally, the trial court will not be influenced by  any  of  the  observations made by us  for  the  limited purposes  of finding out the existence of a prima facie case against  the  accused, which is allowed to  proceed  against them in the trial court.