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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.

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[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

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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

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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

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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

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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