Ashok Kumar vs The State

R.P. Sethi, J.—The accused-petitioner, a domestic servant of the deceased is alleged to have fired a shot with a muzzled gun on 19-5-1987

as a result of which Chanchal Singh died whereafter the accused concealed his body in an iron box and kept it under room After removing Rs.

1300/- and other articles belonging to the deceased. On appreciation of the evidence led in the case, the trial court prima facie held the petitioner

guilty and charged him for offences punishable u/s 302/381, I.P.C. The order of charge has been challenged in this petition mainly on the ground

that there was no sufficient evidence to justify the framing of charge against the petitioner.

I have heard the learned Counsel for the parties and perused the record.

Sub-section (4)(a) was inserted in Section 435 of the Cr. P.C. vide Act No. XXXVII of 1978 which provides that the powers of revision shall

not be exercised in relation to any interlocutory order passed in any appeal, enquiry, trial or other proceedings. This Court in S.K. Mahajan and

Etc. Vs. Municipality, held:

It, therefore, follows, that an order of framing a charge cannot be assailed in revision u/s 439 read with Section 435 on the ground that it is based

upon mis-appreciation, insufficiency or even total absence of evidence, for the order in such a case would be correlated to the main controversy viz

whether or not the accused has committed the offence and, would be, therefore, an interlocutory order to which the bar of Sub-section (4)(a) will

be clearly attracted.

In the instant case the order framing the charge has been challenged on the grounds of insufficiency and non-existence of material evidence

connecting the accused with the commission of the crime which in law is deemed to be an interlocutory order not subject to revisional jurisdiction

of this i Court.

Mr. Krishen Kumar the learned Counsel appearing for the petitioner has however submitted that the inherent powers of this Court u/s 561-A of

the Cr. P.C. are independent and without restrains. It is submitted that this Court in exercise of its inherent powers can set aside the order of

charge on the basis of the submissions made in the position. The Supreme Court in Madhu Limaye Vs. The State of Maharashtra, had held (Para

10):

The purpose of putting a bar on the power of revision in relation to any interlocutory order passed in an appeal, inquiry, trial or other proceeding is

to bring about expeditious disposal of the cases finally. More often than not, the revisional power of the High Court was resorted to in relation to

interlocutory orders delaying the final disposal of the proceedings. The Legislature in its wisdom decided to check this delay in introducing Sub-

section (2) to Section 397. On the one hand, a bar has been put in the way of the High Court (as also of the Sessions Judge) for exercising of the

revisional power in relation to any interlocutory order, on the other the power has been conferred in almost the same terms as it was in the 1898

Code. On a plan reading of Section 428, however, it would follow that nothing in the Code, which would include Sub-section (2) of Section 397

also, ""shall be deemed to limit or affect the inherent powers of the High Court"". The bar provided in Sub-section (2) of Section 397 operates only

in exercise of the revisional power of the High Court, meaning thereby that the High Court will have no power of revision in relation to any

interlocutory order. Then in accordance with one or the other principles enunciated above, the inherent power will come into play, there being no

other provision in the Code, for the redress of the grievance of the aggrieved party. But then if the order assailed is purely of a interlocutory

character which could be corrected in exercise of the revisional power of the High Court under the 1898 Code, the High Court will refuse to

exercise its inherent power. But in case the impugned order clearly brings out a situation which is an abuse of the process of the Court or for the

purposes of securing the ends of justice interference by the High Court is absolutely necessary, then nothing contained in Section 397(2) can limit

or affect the exercise of the inherent power of the High Court. But such cases would be few and far between. The High Court must exercise the

inherent power very sparingly. One such case would be the desirability of the quashing of a criminal proceedings initiated illegally, vexatiously or

has been without jurisdiction.

It was further held in Madhu Limaye Vs. The State of Maharashtra, that following principles be kept in mind for exercise of inherent power of the

High Court in proceedings u/s 561-A, Cr. P.C. (Para 8):

That the power is not to be resorted to if there is a specific provision in the Code for the redress of the grievance of the aggrieved party;

That it should be exercised very sparingly to prevent abuse of process of any Court or otherwise to secure the ends of justice;

That it should not be exercised as against the express bar of law engrafted in any other provision of the Code.

This court in S. K. Mahajan (1982 Cri LJ 646) (J & K.) (supra) had held (at p. 652):

That an order which does not determine the rights of the parties but only one aspect of the suit or the trial is an interlocutory order;

That the concept of interlocutory order has to be explained in contradistinction to a final order. In other words, if an order is not a final order, it

would be an interlocutory order.

It follows, therefore, that the revision petition cannot be clocked with a petition u/s 561-A, Cr. P. C, nor the proceedings be a substitute for

such petition. It has also been specifically held that the inherent power can be exercised only where the proceedings initialed were illegal, vexatious

and without jurisdiction but not otherwise. The label of the petition is not material for the exercise of the inherent power. The present revision

petition seeking to quash the order of charge which was revisable prior to amendment cannot be interfered with in exercise of the inherent powers

of this Court u/s 561-A, Cr. P.C. because proceedings are not alleged to be illegal, vexatious or without jurisdiction.

The learned Counsel appearing for the petitioner has then tried to refer to the evidence in the case to urge that no prima facie case was made out

against the petitioner justifying the framing of the charge. It may be pointed out that at the beginning and at the initial stage of the framing of the

charge, the truth, veracity and effect of the evidence which prosecution proposes to adduce are not required to be meticulously judged nor any

weight to be attached to the probable defence of the accused. At that stage the court is not to see whether there is sufficient ground for conviction

of the accused and whether the trial is sure to end in his conviction. The test to be applied at the time of framing of the charge as laid by the

Supreme Court in State of Bihar Vs. Ramesh Singh, :

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 approved,

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 u/s 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 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 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.

In view of what has been stated hereinabove, this petition is mis-conceived and is accordingly dismissed. The record of the trial court shall be

immediately sent back, where the parties are directed to appear on 28-10-1989.