State
of Orissa Vs.
Debendra Nath Padhi [2004] Insc 722 (29 November 2004)
Y.K. Sabharwal, D.M. Dharmadhikari & Tarun Chatterjee [With SLP (Crl.) No.1912 of 2003 and Crl.A.No.46 of 2004] Y.K.Sabharwal, J.
Can the trial court at the time of framing of charge consider material filed
by the accused, is the point for determination in these matters.
In Satish Mehra v. Delhi Administration and Another [(1996) 9 SCC 766], a
two judge Bench judgment, it was observed that if the accused succeeds in
producing any reliable material at the stage of taking cognizance or framing of
charge which might fatally affect even the very sustainability of the case, it
is unjust to suggest that no such material should be looked into by the court
at that stage. It was held that the object of providing an opportunity to the
accused of making submissions as envisaged in Section 227 of the Code of
Criminal Procedure, 1973 (for short, 'the Code') is to enable the court to
decide whether it is necessary to proceed to conduct the trial. 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.
It was further observed that there is nothing in the Code which shrinks the
scope of such audience to oral arguments and, therefore, the trial court would
be within its power to consider even material which the accused may produce at
the stage contemplated in Section 227 of the Code.
When the arguments in the present case were heard by a two-judge Bench,
considering various decisions including three-judge Bench decisions in
Superindent and Remembrancer of legal Affairs, West Bengal v. Anil Kumar Bhunja
and Others [ (1979) 4 SCC 274 ] and State of Bihar v. Ramesh Singh [ (1977) 4
SCC 39 ] it was observed that at the time of framing a charge the trial court
can consider only the material placed before it by the investigating agency,
there being no requirement in law for the court to grant at that stage either
an opportunity to the accused to produce evidence in defence or consider such
evidence the defence may produce at that stage. But having regard to the views
expressed in Satish Mehra's case (supra) it was directed that the matter should
be referred to a larger Bench. The order referring the matter to larger Bench
is reported in State of Orissa v. Debendra Nath Padhi [(2003) 2 SCC 711].
Accordingly, these matters have been placed before us to determine the question
above-noticed.
The views expressed in Satish Mehra's case (supra) have been strongly
supported by learned counsel for the accused on the ground of justice, equity
and fairness and also on the touchstone of Article 21 of the Constitution of
India contending that reversal of that view would lead to unnecessary
harassment to the accused by having to face the trial for years, waste of
valuable time of the court, heavy cost, despite the fact that even at the early
stage of framing of charge or taking cognizance the accused is in a position to
produce unimpeachable material of sterling quality to clinchingly show that
there is no prospect of conviction at the conclusion of the trial. Satish
Mehra's case was further supported on interpretation of Sections 227 and 239 of
the Code.
On the other hand, it was contended on behalf of the State that the
observations made in Satish Mehra's case run counter to the views expressed by
this court in large number of decisions, it amounts to upsetting well settled
legal propositions and making nugatory amendments made in Code of Criminal
Procedure from time to time and would result in conducting a mini trial at the
stage of framing of charge or taking cognizance. Such a course would not only
be contrary to the object and the scheme of the Code but would also result in
total wastage of the court time because of conducting of two trials, one at the
stage of framing charge and the other after the charge is framed. It was
contended that on true construction of Section 227 of the Code only the material
sent by prosecution along with the record of the case and the documents sent
along with it can be considered by the trial court at the time of framing of
the charge. The accused at that stage has no right to place before the court
any material.
At the stage of framing charge, the trial court is required to consider
whether there are sufficient grounds to proceed against the accused.
Section 227 of the Code provides for the eventuality when the accused shall
be discharged. If not discharged, the charge against the accused is required to
be framed under Section 228. These two sections read as under:
"Section 227 of Cr.PC.
DischargeIf, 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 the proceeding against the accused, he shall discharge the accused
and record his reasons for so doing.
Section 228 of Cr.PC Framing of charge (1) If, after such consideration and
hearing as aforesaid, the Judge is of opinion that there is ground for
presuming that the accused has committed an offence which (a) is not
exclusively triable by the Court of Session, he may, frame a charge against the
accused and, by order, transfer the case for trial to the Chief Judicial
Magistrate, and thereupon the Chief Judicial Magistrate shall try the offence
in accordance with the procedure for the trial of warrant-cases instituted on a
police report;
(b) is exclusively triable by the Court, he shall frame in writing a charge
against the accused.
(2) Where the Judge frames any charge under clause (b) of sub-section (1),
the charge shall be read and explained to the accused and the accused shall be
asked whether he pleads guilty of the offence or claims to be tried."
Similarly, in respect of warrant cases triable by Magistrates, instituted on a
police report, Sections 239 and 240 of the Code are the relevant statutory
provisions. Section 239 requires the Magistrate to consider 'the police report
and the documents sent with it under Section 173' and, if necessary, examine
the accused and after giving accused an opportunity of being heard, if the
Magistrate considers the charge against the accused to be groundless, the
accused is liable to be discharged by recording reasons thereof.
What is to the meaning of the expression 'the record of the case' as used in
Section 227 of the Code. Though the word 'case' is not defined in the Code but
Section 209 throws light on the interpretation to be placed on the said word.
Section 209 which deals with the commitment of case to Court of Session when
offence is triable exclusively by it, inter alia, provides that when it appears
to the Magistrate that the offence is triable exclusively by the Court of
Session, he shall commit 'the case' to the Court of Session and send to that
court 'the record of the case' and the document and articles, if any, which are
to be produced in evidence and notify the Public Prosecutor of the commitment
of the case to the Court of Session. It is evident that the record of the case
and documents submitted therewith as postulated in Section 227 relate to the
case and the documents referred in Section 209. That is the plain meaning of
Section 227 read with Section 209 of the Code. No provision in the Code grants
to the accused any right to file any material or document at the stage of
framing of charge. That right is granted only at the stage of the trial.
Further, the scheme of the Code when examined in the light of the provisions
of the old code of 1898, makes the position more clear. In the old code, there
was no provision similar to Section 227. Section 227 was incorporated in the
Code with a view to save the accused from prolonged harassment which is a
necessary concomitant of a protracted criminal trial.
It is calculated to eliminate harassment to accused persons when the
evidential materials gathered after investigation fall short of minimum legal
requirements. If the evidence even if fully accepted cannot show that the
accused committed the offence, the accused deserves to be discharged.
In the old Code, the procedure as contained in Sections 207 and 207 (A) was
fairly lengthy. Section 207, inter alia, provided that the Magistrate, where
the case is exclusively triable by a Court of Session in any proceedings
instituted on a police report, shall follow the procedure specified in Sectioin
207 (A). Under Section 207 (A) in any proceeding instituted on a police report
the Magistrate was required to hold inquiry in terms provided under sub-section
(1), to take evidence as provided in sub- section (4), the accused could
cross-examine and the prosecution could re-examine the witnesses as provided in
sub-section (5), discharge the accused if in the opinion of the Magistrate the
evidence and documents disclosed no grounds for committing him for trial, as
provided in sub- section (6) and to commit the accused for trial after framing
of charge as provided in sub-section (7), summon the witnesses of the accused
to appear before the court to which he has been committed as provided in
sub-section (11) and send the record of the inquiry and any weapon or other
thing which is to be produced in evidence, to the Court of Session as provided
in sub-section (14). The aforesaid Sections 207 and 207(A) have been omitted
from the Code and a new Section 209 enacted on the recommendation of the Law
Commission contained in its 41st Report. It was realised that the commitment
inquiry under the old Code was resulting in inordinate delay and served no
useful purpose. That inquiry has, therefore, been dispensed with in the Code
with the object of expeditious disposal of cases. Instead of committal
Magistrate framing the charge, it is now to be framed by Court of Session under
Section 228 in case the accused is not discharged under Section 227. This
change brought out in the code is also required to be kept in view while
determining the question.
Under the Code, the evidence can be taken only after framing of charge.
Now, let us examine the decisions which have a bearing on the point in
issue.
In State of Bihar v. Ramesh Singh [ (1977) 4 SCC 39 ] considering the scope
of Sections 227 and 228 of the Code, it was held that at the stage of framing
of charge it is not obligatory for the Judge 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. 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, at the
initial stage of framing of charge, is sufficient to frame the charge and in
that event it is not open to say that there is no sufficient ground for
proceeding against the accused.
In Superintendant and Remembrancer of legal Affairs, West Bengal v. Anil
Kumar Bhunja and Others [(1980) 1 SCR 323] a three- judge Bench held that the
Magistrate at the stage of framing charges had to see whether the facts alleged
and sought to be proved by the prosecution prima facie disclose the commission
of offence on general consideration of the materials placed before him by the
investigating police officer (emphasis supplied). Though in this case the
specific question whether an accused at the stage of framing of charge has a
right to produce any material was not considered as such, but that seems
implicit when it was held that the Magistrate had to consider material placed
before it by the investigating police officer.
In State of Delhi v. Gyan Devi and Others [(2000) 8 SCC 239] this Court
reiterated that at the stage of framing of charge the trial court is not to
examine and assess in detail the materials placed on record by the proseuction
nor is it for the court to consider the sufficiency of the materials to
establish the offence alleged against the accused persons.
In State of Madhya Pradesh v. S.B.Johari and Others [(2000) 2 SCC 57] it was
held that 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,
cannot show that the accused committed the particular offence. In that case,
there would be no sufficient ground for proceeding with the trial.
In State of Maharashtra v. Priya Sharan Maharaj and Others [(1997) 4 SCC
393] it was held that at Sections 227 and 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, sift the evidence as it cannot be expected even at that
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.
All the decisions, when they hold that there can only be limited evaluation
of materials and documents on record and sifting of evidence to prima facie
find out whether sufficient ground exists or not for the purpose of proceeding
further with the trial, have so held with reference to materials and documents
produced by the prosecution and not the accused. The decisions proceed on the
basis of settled legal position that the material as produced by the prosecution
alone is to be considered and not the one produced by the accused. The latter
aspect relating to the accused though has not been specifically stated, yet it
is implicit in the decisions. It seems to have not been specifically so stated
as it was taken to be well settled proposition. This aspect, however, has been
adverted to in State Anti-Corruption Bureau, Hyderabad and Another v. P.
Suryaprakasam [1999 SCC (Crl.) 373] where considering the scope of Sections
239 and 240 of the Code it was held that at the time of framing of charge, what
the trial court is required to, and can consider are only the police report
referred to under Section 173 of the Code and the documents sent with it. The
only right the accused has at that stage is of being heard and nothing beyond
that (emphasis supplied). The judgment of the High Court quashing the
proceedings by looking into the documents filed by the accused in support of
his claim that no case was made out against him even before the trial had
commenced was reversed by this Court. It may be noticed here that learned
counsel for the parties addressed the arguments on the basis that the
principles applicable would be same whether the case be under Sections 227 and
228 or under Sections 239 and 240 of the Code.
As opposed to the aforesaid legal position, the learned counsel appearing
for the accused contended that the procedure which deprives the accused to seek
discharge at the initial stage by filing unimpeachable and unassailable
material of sterling quality would be illegal and violative of Article 21 of
the Constitution since that would result in the accused having to face the
trial for long number of years despite the fact that he is liable to be
discharged if granted an opportunity to produce the material and on perusal
thereof by the court. The contention is that such an interpretation of Sections
227 and 239 of the Code would run the risk of those provisions being declared
ultra vires of Articles 14 and 21 of the Constitution and to save the said
provisions from being declared ultra vires, the reasonable interpretation to be
placed thereupon is the one which gives a right, howsoever, limited that right
may be, to the accused to produce unimpeachable and unassailable material to
show his innocence at the stage of framing charge.
We are unable to accept the aforesaid contention. The reliance on Articles
14 and 21 is misplaced. The scheme of the Code and object with which Section
227 was incorporated and Sections 207 and 207 (A) omitted have already been
noticed. Further, at the stage of framing of charge roving and fishing inquiry
is impermissible. If the contention of the accused is accepted, there would be
a mini trial at the stage of framing of charge.
That would defeat the object of the Code. It is well-settled that at the
stage of framing of charge the defence of the accused cannot be put forth. The
acceptance of the contention of the learned counsel for the accused would mean
permitting the accused to adduce his defence at the stage of framing of charge
and for examination thereof at that stage which is against the criminal
jurisprudence. By way of illustration, it may be noted that the plea of alibi
taken by the accused may have to be examined at the stage of framing of charge
if the contention of the accused is accepted despite the well settled
proposition that it is for the accused to lead evidence at the trial to sustain
such a plea. The accused would be entitled to produce materials and documents
in proof of such a plea at the stage of framing of the charge, in case we
accept the contention put forth on behalf of the accused. That has never been
the intention of the law well settled for over one hundred years now. It is in
this light that the provision about hearing the submssions of the accused as postulated
by Section 227 is to be understood. It only means hearing the submissions of
the accused on the record of the case as filed by the prosecution and documents
submitted therewith and nothing more. The expression 'hearing the submissions
of the accused' cannot mean opportunity to file material to be granted to the
accused and thereby changing the settled law. At the state of framing of charge
hearing the submissions of the accused has to be confined to the material
produced by the police.
It may also be noted that, in fact, in one of the cases under consideration
(SLP No.1912) the plea of alibi has been taken by the accused in a case under
Section 302 read with other provisions of the Indian Penal Code. We may also
note that the decisions cited by learned counsel for the accused where the
prosecutions under the Income Tax Act have been quashed as a result of findings
in the departmental appeals have no relevance for considering the question
involved in these matters.
Reliance placed on behalf of the accused on some observations made in
Minakshi Bala v. Sudhir Kumar and Others [(1994) 4 SCC 142] to the effect that
in exceptional cases the High Court can look into only those documents which
are unimpeachable and can be legally translated into relevant evidence is
misplaced for the purpose of considering the point in issue in these matters.
If para 7 of the judgment where these observations have been made is read as a
whole, it would be clear that the judgment instead of supporting the contention
sought to be put forth on behalf of the accused, in fact, supports the
prosecution. Para 7 of the aforesaid case reads as under:- "If charges are
framed in accordance with Section 240 CrPC on a finding that a prima case has
been made out - as has been done in the instant case - the persons arraigned
may, if he feels aggrieved, invoke the revisional jurisdiction of the High
Court or the Sessions Judge to contend that the charge-sheet submitted under
Section 173 CrPC and documents sent with it did not disclose any ground to
presume that he had committed any offence for which he is charged and the
revisional court if so satisfied can quash the charges framed against him. To
put it differently, once charges are framed under Sections 240 CrPC the High
Court in its revisional jurisdiction would not be justified in relying upon
documents other than those referred to in Sections 239 and 240 CrPC; nor would
it be justified in invoking its inherent jurisdiction under section 482 CrPC to
quash the same except in those rare cases where forensic exigencies and
formidable compulsions justify such a course. We hasten to add even in such
exceptional cases the High Court can look into only those documents which are
unimpeachable and can be legally translated into relevant evidence." It is
evident from the above that this Court was considering the rare and exceptional
cases where the High Court may consider unimpeachable evidence while exercising
jurisdiction for quashing under Section 482 of the Code. In the present case,
however, the question involved is not about the exercise of jurisdiction under
Section 482 of the Code where along with the petition the accused may file
unimpeachable evidence of sterling quality and on that basis seek quashing, but
is about the right claimed by the accused to produce material at the stage of
framing of charge.
Reliance has also been placed on decision in the case of P.S.Rajya v. State
of Bihar [(1996) 9 SCC 1] where this court rejected the contention urged on
behalf of the State that the points on which the accused was seeking quashing
of criminal proceedings could be established by giving evidence at appropriate
time and no case had been made out for quashing the charge itself. The charge
was quashed by this Court. In this case too only on peculiar facts of the case,
this Court came to the conclusion that the criminal proceedings initiated
against the appellant-accused could not be pursued. Those peculiar facts have
been noticed in paragraphs 14, 17, 18 and 19 of the decision. The contention of
the accused based on those peculiar facts has been noticed in para 15 and that
of respondent that the CBI was entitled to proceed on the basis of the material
available and the mere allegations made by the accused cannot take the place of
proof and that had to be gone into and established in the final hearing, has
been noticed in para 16. After noticing those contentions and the decision in
the case of State of Haryana v. Bhajan Lal [1992 (Suppl.1) 335] laying down the
guidelines relating to the exercise of extraordinary power under Article 226 or
the inherent power under Section 482 of the Code for quashing an FIR or a
complaint, this Court, on the peculiar facts, came to the conclusion that the
case of the appellant could be brought under more than one head given in Bhajan
Lal's case (supra) without any difficulty so as to quash the proceedings.
In this background, observations were made in para 23 on which reliance has
been placed on behalf of the accused whereby rejecting the contention of the
State as noticed in para 16, the Court came to the conclusion that the criminal
proceedings deserve to be quashed. In this case too the question was not about
the right of the accused to file material at the stage of framing charge but
was about quashing of proceedings in exercise of power under Section 482 of the
Code. The decision in the case of State of Madhya Pradesh v. MohanLal Soni
[(2000) 6 SCC 338] sought to be relied upon on behalf of the accused is also of
no assistance because in that case an earlier order of the High Court wherein
trial court was directed to take into consideration the documents made
available by the accused during investigation while framing charge had attained
finality since that order was not challenged and in that view this Court came
to the conclusion that the trial court was bound and governed by the said
direction of the High Court which had not been followed.
As a result of aforesaid discussion, in our view, clearly the law is that at
the time of framing charge or taking cognizance the accused has no right to
produce any material. Satish Mehra's case holding that the trial court has
powers to consider even materials which accused may produce at the stage of
Section 227 of the Code has not been correctly decided.
On behalf of the accused a contention about production of documents relying
upon Section 91 of the Code has also been made.
Section 91 of the Code reads as under:
"Summons to produce document or other thing.(1) Whenever any Court or
any officer in charge of a police station considers that the production of any
document or other thing is necessary or desirable for the purposes of any
investigation, inquiry, trial or other proceeding under this Code by or before
such Court or officer, such Court may issue a summons, or such officer a
written order, to the person in whose possession or power such document or
thing is believed to be, requiring him to attend and produce it, or to produce
it, at the time and place stated in the summons or order.
(2)...........................................................................
(3)..........................................................................."
Any document or other thing envisaged under the aforesaid provision can be
ordered to be produced on finding that the same is 'necessary or desirable for
the purpose of investigation, inquiry, trial or other proceedings under the
Code'. The first and foremost requirement of the section is about the document
being necessary or desirable. The necessity or desirability would have to be
seen with reference to the stage when a prayer is made for the production. If
any document is necessary or desirable for the defence of the accused, the
question of invoking Section 91 at the initial stage of framing of a charge
would not arise since defence of the accused is not relevant at that stage.
When the section refers to investigation, inquiry, trial or other proceedings,
it is to be borne in mind that under the section a police officer may move the
Court for summoning and production of a document as may be necessary at any of
the stages mentioned in the section. In so far as the accused is concerned, his
entitlement to seek order under Section 91 would ordinarily not come till the
stage of defence. When the section talks of the document being necessary and
desirable, it is implicit that necessity and desirability is to be examined
considering the stage when such a prayer for summoning and production is made
and the party who makes it whether police or accused.
If under Section 227 what is necessary and relevant is only the record
produced in terms of Section 173 of the Code, the accused cannot at that stage
invoke Section 91 to seek production of any document to show his innocence.
Under Section 91 summons for production of document can be issued by Court and
under a written order an officer in charge of police station can also direct
production thereof. Section 91 does not confer any right on the accused to
produce document in his possession to prove his defence. Section 91 presupposes
that when the document is not produced process may be initiated to compel
production thereof.
Reliance on behalf of the accused was placed on some observations made in
the case of Om Parkash Sharma v. CBI, Delhi [(2000) 5 SCC 679]. In that case
the application filed by the accused for summoning and production of documents
was rejected by the Special Judge and that order was affirmed by the High
Court. Challenging those orders before this Court, reliance was placed on
behalf of the accused upon Satish Mehra's case (supra). The contentions based
on Satish Mehra's case have been noticed in para 4 as under:
"The learned counsel for the appellant reiterated the stand taken
before the courts below with great vehemence by inviting our attention to the
decision of this Court reported in Satish Mehra v.
Delhi Admn. ((1996) 9 SCC 766) laying emphasis on the fact the very learned
Judge in the High Court has taken a different view in such matters, in the
decision reported in Ashok Kaushik v. State ((1999) 49 DRJ 202). Mr Altaf
Ahmed, the learned ASG for the respondents not only contended that the
decisions relied upon for the appellants would not justify the claim of the
appellant in this case, at this stage, but also invited, extensively our
attention to the exercise undertaken by the courts below to find out the
relevance, desirability and necessity of those documents as well as the need
for issuing any such directions as claimed at that stage and consequently there
was no justification whatsoever, to intervene by an interference at the present
stage of the proceedings.
In so far as Section 91 is concerned, it was rightly held that the width of
the powers of that section was unlimited but there were inbuilt inherent
limitations as to the stage or point of time of its exercise, commensurately
with the nature of proceedings as also the compulsions of necessity and
desirability, to fulfill the task or achieve the object. Before the trial court
the stage was to find out whether there was sufficient ground for proceeding to
the next stage against the accused. The application filed by the accused under
Section 91 of the Code for summoning and production of document was dismissed
and order was upheld by High Court and this Court. But observations were made
in para 6 to the effect that if the accused could produce any reliable material
even at that stage which might totally affect even the very sustainability of
the case, a refusal to look into the material so produced may result in
injustice, apart from averting an exercise in futility at the expense of
valuable judicial/public time, these observations are clearly obiter dicta and
in any case of no consequence in view of conclusion reached by us hereinbefore.
Further, the observations cannot be understood to mean that the accused has a
right to produce any document at stage of framing of charge having regard to
the clear mandate of Sections 227 and 228 in Chapter 18 and Sections 239 and
240 in Chapter 19.
We are of the view that jurisdiction under Section 91 of the Code when
invoked by accused the necessity and desirability would have to be seen by the
Court in the context of the purpose investigation, inquiry, trial or other
proceedings under the Code. It would also have to be borne in mind that law
does not permit a roving or fishing inquiry.
Regarding the argument of accused having to face the trial despite being in
a position to produce material of unimpeachable character of sterling quality,
the width of the powers of the High Court under Section 482 of the Code and
Article 226 of Constitution of India is unlimited whereunder in the interests
of justice the High Court can make such orders as may be necessary to prevent
abuse of the process of any Court or otherwise to secure the ends of justice
within the parameters laid down in Bhajan Lal's case.
The result of the aforesaid discussion is that Criminal Appeal No.497 of
2001 is allowed, the impugned judgment of the High Court is set aside.
The trial court is directed to proceed from the stage of framing of charge.
Having regard to the fact that the charges were framed about 11 years ago we
direct the trial court to expeditiously conclude the trial and as far as
possible it shall be held from day-to-day.
Special Leave Petition (Crl.) No.1912 of 2003 and Criminal Appeal No.46 of
2004 are dismissed. Since Special Leave Petition relates to an occurrence which
took about 3 years back and the offence is under Section 302 Indian Penal Code
and in Criminal Appeal No.46 of 2004 charges were framed about 2 years ago, we
direct that the trial in these cases shall also be concluded expeditiously. All
the appeals are disposed of accordingly.
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