Court No. - 27
Case :- CRIMINAL REVISION No. - 2952 of 2013 Revisionist :- Arun Kumar & 6 Others Opposite Party :- State Of U.P. & Another Counsel for Revisionist :- N.I. Jafri Counsel for Opposite Party :- Govt. Advocate,Anurag Dubey,Narendra Singh
Hon'ble Dr. Kaushal Jayendra Thaker,J.
1. Heard learned counsel for the revisionist, learned A.G.A. and perused the record. None has appeared on behalf of private respondents when the matter was taken up for hearing.
2. This revision under Section 397/401 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C.), challenges the order dated 26.10.2013 passed by learned Additional Sessions Judge (E.C. Act), District-Mainpuri rejecting the application filed by the revisionists herein, under Section 227 of Cr.P.C. for discharging them for the offences under Sections 498-A, 304-B, 201 and 120-B of the Indian Penal Code, 1860 (hereinafter referred to as 'IPC') and Section 3/4 of Dowry Prohibition Act, 1961 (hereinafter referred to as 'DP Act').
3. The brief facts have been perused by this Court as well as the Trial Court which are that the death occurred during seven years of marriage. The learned Magistrate accepted the final report, however, the revision was filed. Later on the charge-sheet was led and the discharge application of the revisionist was rejected which has led to the filing of this matter.
4. The moot question which arises for consideration in this revision whether a discharge application can be filed after charge is already framed, and, the stage under Section 228 of Cr.P.C. is over or whether the Court can entertain application of discharge filed by one of the accused at any time even after the proceedings have began. It would be relevant for us to discuss the provisions of Section 216, 227 and 228 of Cr.P.C.
216. Court may alter charge.
(1) Any Court may alter or add to any charge at any time before judgment is pronounced.
(2) Every such alteration or addition shall be read and explained to the accused.
(3) If the alteration or addition to a charge is such that proceeding immediately with the trial is not likely, in the opinion of the Court, to prejudice the accused in his defence or the prosecutor in the conduct of the case, the Court may, in its discretion, after such alteration or addition has been made, proceed with the trial as if the altered or added charge had been the original charge.
(4) If the alteration or addition is such that proceeding immediately with the trial is likely, in the opinion of the Court, to prejudice the accused or the prosecutor as aforesaid, the Court may either direct a new trial or adjourn the trial for such period as may be necessary.
(5) If the offence stated in the altered or added charge is one for the prosecution of which previous sanction is necessary, the case shall not be proceeded with until such sanction is obtained, unless sanction has been already obtained for a prosecution on the same facts as those on which the altered or added charge is founded.
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.
228. 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 charged or claims to be tried."
5. While hearing the application for discharge, the Trial Court was supposed to delve into the probable evidences which may be led before it which it has done.
6. The learned Trial Judge after sifting the prima facie evidence, appended alongwith the charge-sheet, has come to the conclusion that it was not a case where there was no sufficiency of ground as the evidence produced by the Police was sufficient to take cognizance and for issue summons and frame charges.
7. Once the charge has been framed, the accused has to be convicted or acquitted. The proceedings cannot be dropped by the Court. This is the view of this Court in Kisan Seva Sahkari Samiti Ltd. Versus Bachan Singh, 1993 Cr.LJ 2540 ( All). There is no provision for cancelling or dropping of the charge, once the stage of discharge under 227 of Cr.P.C. is over. Had the applicant filed application prior to framing charge under Section 228 Cr.P.C., the situation would have been different. Thus, the Trial Court cannot be said to have committed any error in not discharging the accused. The Trial Court has even considered the case on merits also.
8. Recently the Apex Court in State Versus S Selvin and another reported in 2018(13)SCC 445 has held that the discharge of accused can be granted when the Court formed the opinion that there is no offence committed but for framing of charge the converse is that only the prima facie opinion has to be formed by the Court at the time of framing of charge, probate value of material on record only has to be gone into. The Court is not expected to go deep into the matter and held that the material produced does not warrants conviction. The Court has to consider the material on record only to frame charge for offence and, therefore, the Apex Court has held that the averments made in the compliant and the investigating report if they prima facie discloses that the informant was discloses the commission of prima facie offence and the Court is supposed to evaluate the material on record at the stage of Sections 227 or 239 of Cr.P.C. only with a view to find out if the facts emerging there from taken at the face value discloses, the existence of all the ingredients constituting the alleged offence as mentioned (supra). In this case the facts had disclosed that the Trial Court had not committed any error in not discharging the accused and in that view of the matter the discharge application filed by applicant to framing the charge was rightly rejected by the Trial Court.
9. In view of the above, this petition lacks merit and is dismissed. Interim relief, if any, stands vacated forthwith.
10. Record and proceedings be sent to the Trial Court forthwith. The Trial Court shall commence the proceedings as expeditiously as possible and start examining the witnesses as charges have already been framed.
11. The accused, if they so choose and if still not granted bail, may appear and pray for bail before the learned Trial Judge who shall proceed with the matter expeditiously.
Order Date :- 19.12.2018 DKS