Gokaran Gosain vs The State of Bihar

I.P. Singh, J.—This is an application under Sections 397 and 401 of the Code of Criminal Procedure, 1973 (in short ''the Code''). It is directed against the order dated 8.4.1997 passed by the 2nd Additional Sessions Judge, Arrah, Bhojpur in Behea P.S. Case No. 106/93 (S.T. No. 229/95) by which order charge u/s 364/34 of the Indian Penal Code was framed against the Petitioner and others.

The case of the prosecution, in short, is that the family members of the informant were residing at the village while the informant was a Fitter-helper in a Colliery at Dhanbad and he used to reside there. The daughter of the informant was of marriageable age and the informant''s wife used to approach others for her marriage. The informant and his wife were absent from their house from 9.5.1993 to 10.6.1993, when the informant returned back to the village. On their return they could learn that on 8.5.1993 itself the Petitioner had taken away their son, Kameshwar Giri on the pretext of giving him employment for driving a truck. Since the Petitioner claimed that he is the Behnoi of Naruingh Gosai of the Village, the sister of Rameshwar Giri allowed him to go alongwith the present Petitioner. Since then Rameshwar Giri did not return back to the Village. On the other hand demand for money was made from the family members of Kameshwar Giri by the Petitioner and others. Ultimately a written complaint was lodged with the police in which charge sheet has been submitted.

The Petitioner has contended that there is absolutely no material on the record to connect him with the alleged offence. Manju Kumari the daughter of the informant and the sister of Kameshwar Giri when called to identify the Petitioner at T.I.P. failed to do so and could not identify the Petitioner. Paragraph 69 of the case diary which contains supervision note of the Dy. S.P. Arrah will show that the allegation of kidnapping of Kameshwar Giri for ransom is pulpably false. According to the F.I.R. the daughter of the informant had stated that she saw the Petitioner covering his face with Gamcha and she had served food to the Petitioner in the Angan. Under this circumstance she could not identify the Petitioner. The learned court below by the impugned order, however, in a mechanical manner rejected the petition filed on behalf of the Petitioner for his discharge. It has accordingly been prayed that this application be allowed and the entire prosecution against the Petitioner be quashed.

The parties have been heard in detail about the various submissions made by them. I have also perused the impugned order dated 8.4.1997. From the submissions made on behalf of the Petitioner it appears that though the alleged occurrence had taken place on 8.5.1998 the T.I. Parade was held as late as on 24.2.1994. The other witnesses has come to know the name of the Petitioner only from Manju Kumari the daughter a the informant. From the impugned order (sic) appears that the learned court below has taken into consideration these submissions made on behalf of the Petitioner. He has, however, held that from the materials available on record there was no ground to discharge the Petitioner at this stage Hence his prayer for discharge was rejected and a date was fixed for framing of the charge.

In this connection I will firstly refer to the provisions of Sections 227 and 225 of the Code. While Section 227 deals with the discharge of the accused in (sic) before the court of session, Section 225 deals with the framing of the (sic) against the accused. Section 227 of the Code runs as follows:

Discharge-- It, upon consideration of the record of the case and the documents submitted therewith and after hearing the submission of the accused and the prosecution in this behalf, the Judge considers that there is no sufficient ground for proceeded against the accused he shall discharge the accused and record his reasons (sic) so doing.

If, however, the order of discharge not passed u/s 227 of the Code the court of session will proceed is frame the charge u/s 228 the Code. A reading of Section 227 of the Code will show that before passing order under this section the following steps have to be taken, namely, (i) (sic) consideration of the record of the case the documents submitted therewith and after hearing the submissions of he accused and the prosecution in this behalf (iii) if the Judge considers that here is no sufficient ground for proceeding against the accused (iv) He shall discharge the accused and record his seasons for so doing.

It may be mentioned here that at he stage of Section 227 of the Code no evidence before the court of session has bee adduced. As is evident from Section 227 of the Code itself the materials taken to be into consideration at this stage by the court of session have already been (sic) above. The true scope of Sections 227 and 228 of the Code had come to for consideration before the Hon''ble supreme Court in the case of State of Bihar Vs. Ramesh Singh, in which the Hon''ble Supreme Court while considering the provisions of Sections 227 and 228 of the Code had (Served that reading those two provisions together in juxtaposition, as (sic) have got to be, it would be clear that at the begining and the initial stage of the (sic) the truth, veracity and effect of the evidence which the prosecutor proposes to adduce are not be meticulously judged. (sic) any weight is to be attached to the probable defence of the accused. At that stage of Sections 227 and 228 of the Code it is not to see whether there is sufficient ground for conviction of the accused. At the initial stage, if there is a (sic) suspicion against the accused which leads the Court to think that there a ground for presuming that the accused committed an offence then it is not (sic) to the Court to say that there is no sufficient ground for proceeding against (sic) accused. From the law as laid down by the Hon''ble Supreme Court in this secession it becomes clear that at this stage even if there is strong suspicion against the accused which leads the court to think that there is ground for presuming that the accused has committed an offence then it will not be open to the court to say that there is no sufficient ground for proceeding against the accused and the court will have to proceed to frame charge against the accused. At this stage it is not for the court to meticulously examine what evidence the prosecution proposes to adduce or what defence may be taken during the trial. The court has only to find out whether any prima facie case is made out against the accused or not so that the necessary charge against him can be framed (A similar view has also been taken by the Hon''ble Supreme Court in the case of Radhey Shyam v. Kunj Bihari and Ors 1990 (1) P.L.J.R. 18 (S.C.). This matter had came up before the Hon''ble Supreme Court in the case of Supdt. and Remembrancer of Legal Affairs, West Bengal Vs. Anil Kumar Bhunja and Others, is which it has been observed that at the stage of framing of the charge it has to be remembered that as yet the prosecution evidence had not commenced and the court has, therefore, to consider the question of framing of the charge on a general consideration of the materials placed before it by the Investigating Police Officer. It was further held that at this stage even a very strong suspicion; founded upon the 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 charges against the accused. A word of caution has also been sounded in this judgment that the standard test of proof at the time of the judgment is not to be applied at this stage at the time of framing of the charge.

From the aforesaid it would appear that the law on this subject is quite well settled by the Hon''ble Supreme Court. So far as the present case is concerned it has been contended in the petition that except for Manju Kumari the daughter of the informant there is no other eye witness of the alleged occurrence. It has also been contended that in the T.I. Parade, Manju Kumari, failed to identify the Petitioner. As pointed out above at this stage the materials on record are not to be meticulously examined. It may be mentioned that the alleged occurrence had taken place about, more than eight months before the holding of T.I. Parade and under the aforesaid circumstances it is not surprising that Manju Kumari a girl of tender age failed to identify the Petitioner in court. The learned court below has rightly held that from the materials available on record there is no ground to discharge the Petitioner at this stage.

This question had come up for consideration before me in the case of Rana Ramdeo Singh and Ors. v. The State of Bihar and Ors. Criminal Revision No. 451 of 1997 which was disposed of on 16.3.2000 Rana Ramdeo Singh, Prafulla Kumar Singh, Prasanna Kumar Singh and Harsh Kumar Singh Vs. The State of Bihar and Ram Bali Mahto, From the facts of this decision also it appears that on behalf of the Petitioner a petition for their discharge u/s 227 of the Code was filed which was rejected by the court of session, it was against this order that the revision application was filed which was dismissed by my judgment of the said date.

In another case of Sashi Bhushian Sharma v. State of Bihar Cr. Revision No. 674/97 which was disposed of on 3.7.2000 also I have held the similar view. From the facts of the said case it would appear that the learned court of session rejected the petition on behalf of the Petitioner filed for their discharge. This revision application against was also dismissed by me and a similar view with respect to the scope of Section 227 of the Code has been taken.

From the discusions made above it becomes clear that there is no merit (sic) the present application. It is, accordingly dismissed.