Court No. - 41
Case :- CRIMINAL MISC. WRIT PETITION No. - 6294 of 2005 Petitioner :- Chetendra Pal Singh Respondent :- State O Fup. Thru' Station House Officer Ghaziabad Counsel for Petitioner :- Dileep Kumar,Rajeev Gupta Counsel for Respondent :- Govt. Advocate,N.I. Jafri,Satyam Narayan
Hon'ble Aniruddha Singh,J.
1- Heard Sri Dharmraj Pal, Advocate, holding brief of Sri Dileep Kumar, learned counsel for the petitioner and learned A.G.A. for the State, Sri Satyam Narayan, learned counsel for the opposite party and perused the record.
2- This criminal writ petition has been filed by the petitioner against the order dated 25.9.2004 in S.T. No. 1385 of 2003 (State Vs.Chetendra Pal Singh and others) passed by Additional Sessions Judge, Court No. 4, Ghaziabad whereby the petitioner's application for discharge under Sections 304-B, 498-A I.P.C. and Section 3/4 of Dowry Prohibition Act, Police Station Hapur Dehat, District Ghaziabad was rejected.
3- In nutshell, the facts of the case are that one case was registered against the petitioner under Sections 304-B, 498-A I.P.C. and Section 3/4 of Dowry Prohibition Act alleging that Pratibha was died on 15.11.2000 in the house of the petitioner as an unnatural death for demand of dowry. After investigation, charge-sheet was submitted and discharge application was filed and that was rejected and charges were framed on 25.9.2004 against the petitioner, a copy of which has been annexed at page 112 of the writ petition.
4- Learned A.G.A. and learned counsel for the opposite party have supported the order passed by the court below.
5- It is pertinent to mention Section 227 Cr.P.C. and Section 228 Cr.P.C. which are as follows:-
" 227. Discharge.-If, upon consideration of the record of the case and the documents submitted therewith, and after hearing for 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 the 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 or any other Judicial Magistrate of the first class and direct the accused to appear before the Chief Judicial Magistrate, or, as the case may be, the Judicial Magistrate of the first class, on such date as he deems fit, and thereupon such 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."
6- According to Section 237 Cr.P.C., if the Judge is of the opinion that accused is liable to be discharged from the charge levelled against him, then he is duty bound to record reasons for discharging the accused. According to Section 240 Cr.P.C., if the Magistrate is competent to try and is of the opinion that accused could be punished by him, he shall frame charge against the accused.
7- In the case of State of Maharashtra v. Som Nath Thapa (1996) 4 SCC 659, where a three-Judge Bench of the Apex Court, after noting three pairs of sections viz. (i) Sections 227 and 228 insofar as sessions trial is concerned; (ii) Sections 239 and 240 relatable to trial of warrant cases; and (iii) Sections 245(1) and (2) qua trial of summons cases, which dealt with the question of framing of charge or discharge, stated thus:
"if on the basis of materials on record, a court could come to the conclusion that commission of the offence is a probable consequence, a case for framing of charge exists. To put it differently, if the court were to think that the accused might have committed the offence it can frame the charge, though for conviction the conclusion is required to be that the accused has committed the offence. It is apparent that at the stage of framing of a charge, probative value of the materials on record cannot be gone into; the materials brought on record by the prosecution has to be accepted as true at that stage."
8- It has been held by Division Bench of Delhi High Court in the case of Bhiku Ram vs. Delhi Municipality, 1977 CRLJ, 1955 that framing of charge cannot be said to be finally determining the matter in issue, setting at rest the controversy between the parties. In framing a charge Magistrate only specifies the accusation against an accused person and communicates the same to him. Therefore they are interlocutory being a procedural step and does not determine the principal matter in dispute. Thus, in the present case, the Magistrate has committed no error in framing charges.
9- In the case of Munna Devi vs. State of Rajasthan & another Appeal(Crl.) No. 1138 of 2001 decided on 6.11.2001, Hon'ble Supreme Court has held that the revisional power under the Code of Criminal Procedure cannot be exercised in a routine and casual manner. While exercising such powers the High Court has no authority to appreciate the evidence in the manner as the trial and the appellate courts are required to do. Revisional powers could be exercised only when it is shown that there is a legal bar against the continuance of the criminal proceedings or the framing of charge or the facts as stated in the First Information Report even if they are taken at the face value and accepted in their entirety do not constitute the offence for which the accused has been charged.
10- In the case of Nemichand Jain vs. Roshanlal and others reported in (2004) 13 SCC 461 Hon'ble Supreme Court has held that at the Stage of framing charges, the High Court should not have considered the whole evidence and then concluded that there were no materials to frame charges under Section 304-B and 498-A IPC. The Supreme Court set aside the order passed by the High Court and directed the Sessions Judge to proceed with the case on the basis of the charges framed by Sessions Court under Sections 304-B and 498-A IPC.
11- It is also pertinent to mention here that petitioner will have opportunity to produce his evidence before the Court below at the defence stage.
12- A perusal of record shows that charges against the petitioner has already been framed on 25.9.2004 and that cannot be quashed. On this ground also, the petition is liable to be dismissed. This Court finds no illegality, impropriety, material irregularity or jurisdictional error in the impugned order. The present petition lacks merit and is liable to be dismissed. Hence dismissed.
13- The record of lower Court be returned to the Court concerned immediately with copy of this order.
Order Date :- 23.8.2018 OP