Anil Alias Noni Panda and Another vs State of M.P

N.K. Gupta, J.—By the instant criminal revision, the applicants have challenged the order dated 20.7.2011 passed by the 4th Additional Sessions Judge, Tikamgarh in ST No. 33/2011 by way of a revision whereby charges of offence punishable under Sections 307 or 307/34, 329 or 329/34, 294, and 506(2) of IPC were framed. Prosecution case in short is that on 28.8.2010 at about 8:00 PM in the night where the complainant Ramswaroop was present in his house, accused Noni Panda came to his house and informed that other accused Nanna Panda was calling him, and therefore complainant Ramswaroop went to the house of Nanna Panda. At the house of Nanna Panda, both the accused Noni Panda and Nanna Panda told him to provide a sum of Rs. 5 lakhs immediately otherwise they would kill him. Accused Rajesh @ Kallu Panda assaulted him by the base of a firearm on his head causing him some injuries on his head. Similarly, Noni Panda had also assaulted, him by base of the katta on his nose and as a result blood oozed out of his nose. Thereafter they assaulted Ramswaroop by the base of firearm and also by kicks and fists. After hearing the noise of Ramswaroop, mother of the complainant Ramswaroop reached the spot and she saved the complainant. The FIR was lodged on the same very day. Complainant Ram swaroop was sent to the hospital for his medico legal examination, and treatment. Doctor, found 5-6 injuries on his person. Out of them, two injuries were incised wounds situated on middle of the head and right ear, whereas other wounds were found on head, chest and other parts of the body, and therefore X-ray was advised. In X-ray report no bony injury was found either on skull, nose or chesat. After due investigation challan was filed.

Learned 4th Additional Sessions Judge, Tikamgarh vide order dated 20.7.2011 framed the aforesaid charges against the applicants and recorded their plea.

Heard the learned counsel for the parties at length.

Learned counsel for the applicants has submitted that there was no intention of the applicants to kill the victim. No fatal or grievous injury was caused to the victim Ramswaroop, and therefore neither any offence u/s 329 nor u/s 307 of IPC was made out. The case was triable by the Court of Judicial Magistrate First Class, but the learned Additional Sessions Judge unnecessarily framed the charges of offence punishable under Sections 307 and 329 of IPC and also alternate charges u/s 34 of IPC. Learned counsel for the applicants has further submitted that learned Additional Sessions Judge did not mention any reason as to how the charges of offence punishable u/s 307 or 329 of IPC were made out. Under such circumstances, it is submitted that the learned Additional Sessions Judge has passed a non-speaking order, which suffers from legal errors and therefore that may be quashed.

On the other hand, learned counsel for the State has refuted the contentions made by learned counsel for the applicant. He has submitted that offence u/s 307 of IPC is clearly made out. The applicants have assaulted the victim on his head and nose, and therefore their intention appears to be apparent. Secondly, learned counsel for the State has referred the judgment of the Hon''ble Apex Court in the case of Smt. Om Wati and Another Vs. State, through Delhi Admn. and Others, and in the case of "Kanti Bhadra Shah & another Vs. State of WB", [(2000) /SCC 722] in which it is directed that if trial Court discharges any accused from some charges, then a detailed order will be passed, but at the time of framing of charges, if charges are framed., then there is no need to mention any reason in details. Under such circumstances, it is prayed that the present revision may be dismissed with costs.

According to the provisions of Sections 227 and 228 of Cr.P.C., it is for the trial Court to consider the material available on record with the object that if it is not rebutted, then whether the accused can be convicted for a particular offence or not. By considering such material, if the accused is convicted for that offence, then charges for that offence shall be framed. The Hon''ble Apex Court in the case of "Supdt. & Remembrancer of Legal Affairs, West Bengal Vs. Anil Kumar Bhunja & others", (AIR 1980 SC 52) by referring the view taken in the case of State of Bihar Vs. Ramesh Singh, took the following view:-

18.....the truth, veracity and effect of the evidence which the prosecutor proposes to adduce are not to be meticulously judged. The standard of test, proof and judgment which is to be applied finally before finding the accused guilty or otherwise, is not exactly to be applied at the stage of Section 227 or 228 of the Code of Criminal Procedure, 1973. At this stage, even a very strong suspicion founded upon, materials before the Magistrate, which leads him to form a presumptive opinion as to the existence of the factual, ingredients constituting the offence alleged; may justify the framing of charge against the accused in respect of the commission of that offence.

Similarly, in the case of Stree Atyachar Virodhi Parishad Vs. Dilip Nathumal Chordia and Another, took the following the view:-

14.......It is in the trial, the guilt or the innocence of the accused will be determined and not at the time of framing of charge. The court, therefore, need not undertake an elaborate enquiry in sifting and, weighing the material. Nor it is necessary to delve deep into various aspects. All that the court has to consider is whether the evidenciary material on record if generally accepted, would reasonably connect the accused with the crime. No more need be enquired into.

It would also be seen from the view taken by the Hon''ble Apex Court in para 7 in the case of Niranjan Singh Karam Singh Punjabi and Others Vs. Jitendra Bhimraj Bijja and others, , which reads as under:-

7...It seems well-settled that at the Sections 227-228 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

Therefore, at the stage of framing of charges, veracity of the witnesses is not required to be considered, but evidence produced by the police should be considered to evaluate that the charges relating to that crime may be framed or not.

Under such circumstances, the matter may be considered in the light of the aforesaid judgments passed by the Hon''ble Apex Court. For consideration of offence punishable u/s 307 of IPC, intention and knowledge of the accused should be considered. In this context, the judgment of the Hon''ble Apex Court in the case of Hari Kishan Vs. Sukhbir Singh and Others, may be referred, in which it is held as under-

Under Section 307 IPC what the Court has to see is, whether the act irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in that section. The intention or knowledge of the accused must be such as is necessary constitute murder. Without this ingredient being established, there can be no offence of "attempt to murder". u/s 307 the intention precedes the act attributed to accused. Therefore, the intention is to be gathered from all circumstances, and not merely from the consequences that ensue. The nature of the weapon used, manner in which it is used, motive for the crime, severity of the blow, the part of the body where the injury is inflicted are some of the factors that may be taken into consideration to determine the intention.

If the facts of the present case are considered in the light of the aforesaid judgment, then it would be clear that the applicants were armed with, firearms at the time of incident, but no fire was done by any of the applicants. Secondly, the applicants assaulted the victim Ramswaroop by base of the firearm on his head and nose, which were the vital parts of the body, but assault was not done using any force, and therefore no grievous injury could be caused, to the victim Ramswaroop, and therefore looking to the overt-acts of the applicants, it cannot be said that intention of the applicants was to kill him. On the contrary, it appears that they wanted to threaten the complainant so that he would make the payment. Doctor who examined the victim Ramswaroop in the medico legal examination did not opine that any of the injury was fatal. No treatment report is submitted with the challan to show that some surgery took place upon the victim Ramswaroop, otherwise he could die. Bleeding from the nose or skin of the head cannot be said to be a fatal or grievous in nature. Under such circumstances, it would be clear that the applicants neither fired from firearms, nor used any deadly weapon nor assaulted the victim in forceful manner therefore, it is apparent that they were not intended to kill the victim. Similarly, by injuries caused to the victim, it cannot be said that the applicants had any knowledge that by their act victim Ramswaroop could die. Under such circumstances, it is apparent that no intention or knowledge of the applicants is established prima facie to show that by their overt-acts victim Ramswaroop could die, and therefore no offence u/s 307 of IPC may be constituted. At the most the case may come within the purview of Sections 324 and 323 of IPC only. However, it is apparent that no offence u/s 307 of IPC is made out against the applicants either directly or with the help of Section 34 of IPC.

First of all if the case is considered on the basis of the facts, then it would be apparent that in X-ray report no grievous injury was found upon the victim Ramswaroop, and therefore no offence u/s 329 of IPC is made out against the applicants. For constitution of offence punishable u/s 329 of IPC, injuries caused to the victim must be grievous otherwise only offence u/s 327 of IPC may be constituted, which is triable by the Court of Judicial Magistrate First Class. In the present case, no grievous hurt as defined u/s 320 of Cr.P.C. was caused to the complainant Ramswaroop, and therefore prima facie no offence u/s 329 of IPC is made out.

Similarly if the matter is to be considered for the offence punishable u/s 329 of IPC, then for commission of that offence, it is necessary that some grievous injury is caused to the victim in the incident. There is no grievous injury found by the doctor. Grievous injury is required to be such which fulfills the ingredients of Section 320 of IPC, and therefore if any injury caused to the victim which endanger his life, then, it would be covered in grievous injury. But in the present case, injuries caused to the victim Ramaswaroop were neither fatal nor grievous, and therefore prima facie no offence u/s 329 of IPC was made out. At the most offence u/s 327 of IPC may be constituted, which is triable by the Court of judicial Magistrate First Class.

Since no offence u/s 307 or 329 of IPC is made out either directly or with the help of Section 34 of IPC, then the case remains to be triable by the Court of Judicial Magistrate First Class and it does not remain to be triable by the Court of Sessions and it was for the learned Additional Sessions Judge to remand the case u/s 228 of Cr.P.C. to concerned Chief Judicial Magistrate, and therefore a legal mistake has been committed by the learned Additional Sessions Judge, Tikamgarh which can be cured in the instant revision.

Learned counsel for the applicants has submitted that it is apparent from the record that charges of offence u/s 307 or 329 of IPC were framed without any basis and therefore it was expected from the learned Additional Sessions Judge to mention some reasons in short for framing of such charges whereas learned Public Prosecutor has submitted that the Hon''ble Apex Court has directed not to mention anything if charges are framed. If the judgment of the Hon''ble Apex Court in the case of Kanti Bhadra Shah (supra) is perused, then it would be clear that the Hon''ble Apex Court interpreted the provision of Sections 227 and 240 of Cr.P.C. For the ready reference, the relevant portion is reproduced as under:-

...If the trial Court decides to frame a charge there is no legal requirement that he should pass an order specifying the reasons as to why he opts to do so. Framing of charge itself is prima facie order that the trial Judge has formed the opinion, upon considering the police report and other documents and after hearing both sides, that there is ground for presuming that the accused has committed the offence concerned......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.

In the aforesaid judgment, it is also held that there is no legal requirement that trial Court should write an order showing the reason for framing of charges, there is no need to further burden the already burdened trial Courts with such extra work.

Similarly, in the case of Om Wati (supra), the Hon''ble Apex Court has referred the judgment of Kanti Bhadra''s case (supra) and held that there is no legal requirement that trial Court should write the order showing the reasons for framing of charges. Some portion of para 7 of that judgment may be read as under:-

7...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...

At present if some trials of Section 306 of IPC may be considered where no presumption u/s 113A of the Evidence Act is applicable, then charges u/s 306 of IPC can only he framed if overt-act of the accused falls within the purview of Section 107 of IPC. At present so many revisions are pending before this Court, because the trial Court did not examine at the time of framing of the charges that, whether the overt-act of the accused falls within the purview of Section 107 of IPC. Similarly, in the case of offence punishable u/s 307 of IPC when accused contests the case that no fatal or grievous injury was inflicted upon the victim and apparently on the basis of the documents filed by the police, there was no intention or knowledge of the accused to kill the victim, then in such cases charges for offence punishable u/s 307 of IPC cannot be framed, but such type of charges are being framed by the trial Courts without application of mind and a bulk of revisions are pending against such orders.

Learned counsel for the applicants submits that looking to the aforesaid condition, though there is no provision under Sections 227 and 240 of Cr.P.C. but a speaking order is to be passed by the trial Court at the time of framing of charges on the basis of principles of natural justice. However, such contention cannot be accepted, because in the case of S.N. Mukherjee Vs. Union of India, the Hon''ble Apex Court on the basis of its previous judgment in Som Datt Datta Vs. Union of India (UOI) and Others, has observed as under:-

38...Keeping in view the expanding horizon of the principles of natural justice, we are of the opinion, that the requirement to record reason can be regarded as one of the principles of natural justice which govern exercise of power by administrative authorities. The rules of natural justice are not embodied rules. The extent of their application depends upon the particular statutory framework whereunder jurisdiction has been conferred on the administrative authority. With regard to the exercise of a particular power by an administrative authority including exercise of judicial or quasi-judicial functions the legislature, while conferring the said power, may feel that it would not be in the larger public interest that the reasons for the order passed by the administrative authority be recorded in the order and be communicated to the aggrieved party and it may dispense with such an requirement.

Similarly, the Full Bench of this Court in the case of Rana Natwar Singh Vs. State of Madhya Pradesh and Others, has held as under: -

9...Apart from any requirement imposed by the statute or statutory rule expressly or by necessary, implication, we are unable to accept: the contention of Mr. Dutta that there is any general principle or any rule of natural justice that a statutory tribunal should always and in every case give reasons in support of its decision........The decision in Som Datt Vs. Union of India (supra) is an authority for the propositions that, (I) unless expressly or impliedly required by a statute or the rules, there is no obligation, on a tribunal to give reasons, (ii) the giving of reasons is not a requirement of natural justice, and (iii) a non-speaking order could not be set aside merely the ground that it was non-speaking.

Under such circumstances, it would be clear that since there is no provision under Sections 227 and 240 of Cr.P.C. to pass a speaking order, if charges are framed, then principles of natural justice cannot be applied in such, a manner in light of the decisions given by the Hon''ble Apex Court in the cases of Som Datt (Supra) and S.N. Mukherjee (supra) and the Full Bench of this Court in case of Rana Natwarsingh (supra)

There are so many cases beyond the above quoted examples in para 14 of this order in which such type of situation arises that Presiding Officer of the trial Court does not apply his mind at the time of framing of charges, and therefore number of criminal revisions before this Court are unnecessarily increasing. In such revisions, sufficient time is required for their disposal. Defence counsel appearing before the Lower Court takes time before the Lower Court with the pretext that revision is pending and due to such type of orders unnecessarily delay causes in the disposal of the cases. Though trial Court cannot be directed to pass a speaking order while framing of charges and in each case trial Court is not supposed to pass a speaking order at the time of framing of charges, but looking to the aforesaid situations, trial Courts are advised not to avoid the application of judicial mind at the time of framing of charges. Some reasons in concise manner may be given if charges are framed in such vulnerable cases.

Moreover, it is appropriate to quote one more situation that if police files charge sheet for particular offences with one set of facts and trial Court finds that some more offences are constituted, and therefore trial Court while framing of charges adds charges of those sections of which offence was constituted, then there is no procedure given in Section 227 or 240 of Cr.P.C. for such a situation. For example, if husband and family members are facing a trial of murder of bride by burning and challan was filed for commission of offence punishable under Sections 302 and 498A of IPC, trial Court feels that parents and relatives of the deceased have made allegations of dowry demand and harassment also, and therefore charge u/s 304B of IPC may also be added or appended. This is not a case for modification of the charges, but it is a case where charges are to be framed for the first time. Such type of situation cannot be governed u/s 227 or 240 of Cr.P.C. and in such a case accused has a every right to know as to why such charge was framed and therefore principle of natural justice shall apply. It is for the Court to show the reason as to why additional charge of offence is framed. To such a situation, the dictum laid down by the Hon''ble Apex Court in the case of Om Wati (supra) and Kanti Bhadra''s case (supra) shall not be attracted. Under such circumstances, it is for the trial Court to mention reasons for framing of charges in such, a peculiar situation.

By aforesaid, discussion, it would be clear that where it is required for the trial Court to mention concise reasons for framing of particular charge under the provisions of principle of natural justice then it is the duty of the Presiding Officer to that Court to mention reasons for framing of such charge, whereas in general trial Court is not required to pass a speaking order in each and every case. In other vulnerable cases as mentioned in para 14 of this order, trial Court is advised to apply its mind and in such peculiar cases without mentioning much details in the order some, to the point reasons may be given for framing of charges, so that the Revisionary Court can be well informed on the view of the Judge at the time of framing of charges in such cases.

In the present case, learned Additional Sessions Judge did not consider that no grievous or fatal injury was caused to the victim and no intention or knowledge of the applicants was visible that they intended to commit a murder. On the aforesaid discussion, it would be clear that neither any offence u/s 307 nor Section 329 of IPC is made out against the applicants either directly or with the help of Section 34 of IPC. The offence under Sections 327 and 324 of IPC may be constituted against the applicants either directly or with the help of Section 34 of IPC, and therefore it is apparent that a legal error has been caused by the learned Additional Sessions Judge, Tikamgarh. The case was to be remanded to the Court of Chief Judicial Magistrate u/s 228 of Cr.P.C. but it was kept pending before the Sessions Court. Under such circumstances, revision filed by the applicants deserves to be allowed.

Consequently, the present revision filed by the applicants is hereby allowed and the order dated 20.7.2011 passed by the 4th Additional Sessions Judge, Tikamgarh relating of framing of charges against the applicants is hereby quashed. Learned Additional Sessions Judge, Tikamgarh is directed to remand the case to Chief Judicial Magistrate, Tikamgarh for trial of offences punishable under Sections 327 or 327/34, 324 or 324/34, 294, 506(2) of IPC. A copy of this order be sent forthwith to the trial Court for information and compliance.