Ganesh Prasad Saha vs The State of Orissa

D.P. Mohapatra, J.—The order passed by the learned trial Judge framing charge against him u/s 412, Indian Penal Code (I. P. C.) is being assailed by the petitioner in this application filed u/s 482, Criminal Procedure Code, 1973 (Cr. P. C).

The petitioner Ganesh Prasad Saha was arrayed as one of the accused persons in G. R. Case No. 460 of 1987 (Jankia P. S. Case No. 88 of 1987) which is now pending in the Court of the Asst. Sessions Judge, Khurda in Sessions Trial Case No. 27/169 of 1989. The Investigating Officer filed charge-sheet Under Sections 457/395/412, I. P. C. and Section 9(B) of the Indian Explosives Act. When the Asst. Sessions judge considered framing charge against the accused persons, an application was filed on behalf of the petitioner that there is no material on record to proceed against him in the case and therefore he should be discharged. The learned Asst. Sessions Judge by the impugned order rejected the prayer and framed charge against him u/s 412, I. P. C. observing as follows:

"............There is evidence to frame charge against all the accused persons except Ganesh Prasad Saha under Sees. 457/395 I. P. C. and Section 9(B) of the Indian Explosives Act. There is prima facie evidence to frame charge agains Ganesh Prasad Saha u/s 412 , I. P. C. Charge as such is framed against the accused persons and read over and explained to them to which they pleaded not guilty and claim trial........."

This order is under challenge in the present proceeding.

The main thrust of the argument of the learned counsel for the petitioner is that the impugned order is unsustainable inasmuch as the learned Asst. Sessions Judge has not discussed any material on record from which he felt satisfied that a case to proceed further was made out against the petitioner which leads to a reasonable conclusion that the charge order was passed mechanically without proper application of mind.

The learned Addl. Government Advocate appearing for the opposite party on the other . hand contended that the statement of accused Jai alias Jayakrushna Patra recorded u/s 161, Cr. P. C that he sold the gold and silver ornaments to petitioner Ganesh Prasad Saha who is a jeweller, collected Rs. 15,000/ from him and statements of accused Sanjaya Nartha and accused Ram Chandra Behera that all the stolen ornaments were handed over to Jai alias Jayakrushna Patra who took the same to Cuttack for sale amply substantiate the view taken by the trial Court.

On the contentions noted above, the questions that falls for determination are whether on the materials on record the learned Asst. Sessions Judge was right in framing charge u/s 412, I. P.C. against the petitioner and the scope of interference with the impugned order by this Court in exercise of the power u/s 482, Cr. P. C.

Counsel for both parties have referred to the provisions in Sees. 227 and 228, Cr. P. C. in course of their argument. Section 227, Cr. P. C provides that if upon consideration of the record of the case and the documents submitted there with and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is ho sufficient ground for proceeding against the accused he shall discharge the accused and record his reasons for so doing. Section 228, Cr. P. C. lays down the procedures to be followed if the judge is of opinion that there is ground for presuming that the accused has committed an offence which is not exclusively triable by the Court of Session and in a case where he finds that the offence is exclusively triable by a Court of Session. The pari material provision relating to complaint cases is contained in Section 203, Cr P.C which provides that if, after considering the statements on oath (if any) of the complainant and of the witnesses and the result of the enquiry or investigation (if any) under Sec- 202, the Magistrate is of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in every such case he shall briefly record his reason for so doing. The core question therefore is whether from the materials available on record it could be said that there was sufficient ground for proceeding against the accused

In the case of Century Spinning and Manufacturing Co. Ltd. and Others Vs. State of Maharashtra, construing the provisions in Section 251A(2) and (3), Cr. P. C. 1898 the Apex Court ruled, inter alia, that it cannot be said that the Court at the stage of framing the charges has not to apply its judicial mind for considering whether or not there is a'' ground for presuming the commission of the offence by the accused. The order framing the charges does substantially affect the person''s liberty and it cannot be said that the Court must auto- matically frame the charge merely because the prosecuting authorities by relying on the documents referred to in Section 173 consider it proper to institute the case. The responsibility of. framing the charges is that of the Court and it has to o judicially consider the question of doing so. Without fully adverting to the material on the record it must not blindly adopt the decision of the prosecution.

The Apex Court in the case of Nirmaljit Singh Hoon Vs. The State of West Bengal and Another, interpreting the words "no sufficient ground-for proceeding" in Section 203 Cr. P. C. 1898 observed :

".............Under Section 203, he may dismiss the complaint, if after taking the statement of the complainant and his witnesses and the result of the investigation, if any u/s 202, there is in his judgment ''no sufficient ground for proceeding'' the words sufficient ground'' used also in Section 209 have been construed to mean the satisfaction that a prima facie case is made out against the person accused by the evidence of witnesses entitled to a reasonable degree of credit, and not sufficient ground for the purpose of conviction.........In Chandra Deo Singh v. Prokash Chandra Bose A. 1. R. 1363 S. C. 1430) where dismissal of a complaint by the Magistrate at the stage of Section 202 enquiry was set aside, this Court laid down that the test was whether there was sufficient ground for proceeding and not whether there was sufficient ground for conviction, and observed (P. 653) that where there was prima facie evidence even though the person charged of an offence in the complaint might have a dence, the matter had to be left to be decided by the appropriate forum at the appropriate stage and issue of a process could not be refused. Unless; therefore the Magistrate finds that the evidence led before him is self-contradictory, or intrinsically unstrustworthy process cannot be refused if that evidence makes out a prima facie case. In a revision against such a refusal, the High Court also has to apply the same test........,...."

In the case of State of Karnataka Vs. L. Muniswamy and Others, the Court observed :

"it is clear from Section 227 of the new Code that the Sessions Court has the power to discharge an accused if after perusing the record and hearing the parties he comes to the conclusion, for reasons to be recorded, that there is not sufficient ground for proceeding against the accused. The object of the provision which requires the Sessions Judge to record its ... reasons is to enable the superior Court to examine the correctness of the reasons for which the Sessions judge has held that there is or is not sufficient ground for proceeding against the accused. The High Court therefore is entitled to go into the reasons given by the Sessions Judge in support of his order and to determine for itself whether the order is justified by the facts and circumstances of the case. In the exercise of the wholesome power u/s 482, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of Justice requires that the proceeding ought to be quashed.

For the purpose of determining whether there is sufficient ground for proceeding against an accused the Court possesses, comparatively wider discretion in the exercise of which it can determine the question whether the material on record, if unrebutted, is such on the basis of which a conviction can be said reasonably to be possible."

In the same decision the Apex Court laid down that the power of the Sessions Court to frame an appropriate charge is not trammelled by the specifications contained in the committal order.

In the case of State of Bihar v. Ramesh Singh, reported in the same volume at page 2018 considering the scope and ambit of Sections 227 and 228, Cr.P.C. the Court observed inter alia, that if the evidence which the prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial.

In the present case, as discussed earlier, the materials available on record against the petitioner are the statements given by some other accused persons that all the stolen ornaments were handed over to Jai alias Javakrushna Patra, and the lone statement of Jayakrushna Patra that he sold the said articles to the petitioner and collected Rs. 15,000/- from him From these materials, if unrebutted, can it be reasonably said that the petitioner committed the offence u/s AM, I.P.C. for having dishonestly received the stolen property which he knew and had reason to believe to have been transferred by the commission of dacoity or dishonestly received from a person whom he knew or had reason to believe to belong or to have belonged to a gang of dacoits ? The answer to the question considered either from the point of view of a prima facie case or from the point of reasonable probability of conviction is, in my view, in the negative. It therefore follows that continuing the proceeding against the petitioner in such circumstances will amount to an abuse of the process of the Court.

There is also considerable force in the contention raised on behalf of the petitioner that the trial judge passed the impugned order without proper application of mind. From the discussions in the order it is clear that he discussed the materials against the other accused persons but in respect of the petitioner he merely made a bald observation that there is a prima facie evidence to frame charge against Ganesh Prasad Saha under Ser. 412, I. P C. Had he discussed the materials on the basis of which he was inclined to frame charge against the petitioner it would have beensmuch easier for this Court to determine the correctness or otherwise of trie order. Though stating reasons for framing the charge against the accused may not be, in stricto senso, a statutory requirement, but the interest of justice and propriety demand that the learned trial Judge should state in short, the materials and reasons From which a superior Court can judge whether the order was passed on proper application of judicial mind.

The application is allowed, the order pissed by the learned Assistant Sessions Judge, Khurda framing charge against the petitioner, Ganesh Prasad Saha under Sec 412, I.P.C. is set aside/quashed. This however will not stand on the wav of the learned trial Judge to take appropriate action in accordance with law if in course of trial evidence is forthcoming to show his involvement in the case.