Hare Ram Choudhary vs The State of Bihar and Another

P.K. Sarin, J.—This Criminal Revision Application is directed against the order dated 2.2.1991 passed by Judicial Magistrate, 1st Class, Darbhanga in T.R. No. 84 of 1991/G.R. No. 867 of 1984 by which the learned Magistrate has rejected the application of the Petitioners u/s 239 of the Code of Criminal Procedure (hereinafter referred to as the Code) for discharge.

It appears that Opposite Party No. 2, the informant, lodged a written report on 3rd April, 1989 at Sakatpur Police Station. Abstract of the First Information Report has been filed as Annexure-1 to the application. It has been stated in the said report that the informant is in possession of Plot No. 425 at village Tardih and he had raised Arhar crops on the same it has been alleged that the Petitioners variously armed came at the said plot where the employee of the informant Baidyanath Mandal was getting the harvested Arhar tied into bundles. It is alleged that Petitioner No. 1 Hare Ram Choudhary asked Baidyanath Mandal not to tie harvested Athar crop into bundles and when Baidyanath Mandal did not pay heed to it Hare Ram Choudhary fired from pistol but Baidyanath Mandal escaped and ran away up to some distance. It is further alleged that the Petitioner took away about 40 bundles of Arhar worth Rs. 500/-.

Police, after investigation, submitted charge sheet against the Petitioners. The Petitioners moved an application u/s 239 of the Code for discharge on the ground that Plot No. 445 had been purchased by the Petitioners from Uttim Sundari Thakurain in October, 1983 and since then they are continuing in possession thereof. The learned Magistrate, after considering the evidence collected during investigation, found that there was no ground to discharge the Petitioners and accordingly he rejected the application of the Petitioners.

It has been contended by learned Counsel for the Petitioners that the informant is claiming possession on the basis of an agreement said to be executed by Uttim Sundari Thakurain while Petitioners are claiming possession on the basis of sale deed executed by Uttim Sundari Thakurain who had, during investigation, denied the execution of any agreement in favour of the informant and has supported the defence case that she had executed the sale deed in favour of the Petitioners. It has been contended that utmost the case is of land dispute and the matter is of civil nature for which proper remedy would be Civil Court and not the criminal case. It is further contended that the informant had filed civil suit also in which he prayed for injunction but the same was refused.

Learned Counsel for Opposite Party No. 2 has contended that the question is regarding possession and raising of crop which the informant has asserted to have raised and the defence version may be considered at the appropriate stage at the trial. It is contended that at the stage of framing of charge only prima facie case has to be seen on the basis of material collected during investigation.

Section 239 of the Code lays down that if upon considering the police report and the documents sent with it u/s 173 and making such examination, if any, of the accused as the magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused and record his reason for so doing.

Section 240 of the Code lays down that if upon such consideration, examination, if any, and hearing, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter (XIX) which such Magistrate is competent to try and which in his opinion could be adequately punished by him, he shall frame in writing a charge against the accused.

Thus the provision Is clear that at the time of consideration of the case under Sections 239 and 240 of the Code the Magistrate has only to consider the police report and the documents sent with it u/s 173 of the Code. The Magistrate may also make examination of the accused if he thinks it necessary. No other material is to be looked into or considered at the stage of consideration of the case either u/s 239 or 240 of the Code.

The Apex Court has also held in the case of State of Jammu and Kashmir Vs. Sudershan Chakkar and another, that at the stage of framing of charge court must confine its attention to certain documents referred to u/s 173 only and the court is not justified in referring to the letters purportedly written by the accused when their authenticity and veracity are yet to be gone into.

The same view was taken by the Apex Court in the case of Minakshi Bala Vs. Sudhir Kumar and Others, . It has also been held in the said case that once charges are framed u/s 240 of the Code, the High Court in its revisional jurisdiction would not be justified in relying upon documents other than those referred to in Section 239 of the Code. In the said case the Apex Court found infirmity in the judgment of the High Court that the High Court instead of adverting to and confining its attention to the documents referred to under Sections 239 and 240 of the Code has dealt with the rival contentions of the parties raised through their respective affidavits at length and on a threadbare discussion thereof had passed the impugned order. The Apex Court disapproved the course so adopted by the High Court. It was further observed that at the stage of framing of charge the court cannot usurp the function of a Trial Court to delve into and decide upon the respective merits of the case.

The Apex Court while considering the scope of Sections 227 and 228 of the Code (which are practically similar to the provisions of Sections 239 and 240 of the Code) has held in the case of State of Bihar Vs. Ramesh Singh, that:

Reading Sections 227 and 228 together in juxtaposition, as they have got to be, it would be clear that at the beginning and the initial stage of the trial the truth, veracity and effect of the evidence which the prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be attached to the probable defence of the accused. 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 proved, 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.

The observations of the Apex Court in the said case of Ramesh Singh is also to the effect that at the stage of consideration of matters for framing of charge the Court has not to weigh the evidence like the Trial Court to find whether conviction would be possible on such evidence. The Court has only to find out at that stage whether there is prima facie case for framing of charge and for that purpose only material should be there to show strong suspicion of commission of crime by the accused person.

In the case of Supdt. and Remembrancer of Legal Affairs, West Bengal Vs. Anil Kumar Bhunja and Others, the Apex Court has held that at the stage of framing charges the Magistrate has to consider the question on a general consideration of the materials placed before him by the investigating Police Officer and the standard 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 Sections 227 or 228. It has also been held that 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 charges against the accused.

Thus the principles laid down by the Apex Court in various decisions appear to be that at the stage of consideration of matter for framing of charge only the police report and the documents sent with the police report u/s 173 of the Code have to be looked into and on consideration of the said material if there be strong suspicion and the facts makings out ingredients of the offence alleged the charges have to be framed. In my opinion, at the stage the defence version or the defence evidence is not to be considered to find out whether the witness may be relied upon or not. The defence evidence would come only at the trial and it would be considered by the Trial Court at the appropriate stage. At the stage of framing of charge the Court has not to enter into appraisal of evidence and find out whether such evidence would lead to conviction only.

Learned Counsel for the Petitioner has placed reliance on a decision of Punjab and Haryana High Court in the case of Vinodkumar and Ors. v. State of Haryana 1987 Criminal Law Journal 1335 where it has been held that at the stage of framing of charge the documents sought to be introduced by the accused are required to be included in a list and the prosecutor can be called upon to admit or deny the genuineness of each such document and the Magistrate cannot postpone admission of the document on the ground that the complainant was not before him and thwart the rights of the accused to have his documents admitted at that stage so as to be considered while considering the question of charge.

In the present case, the Petitioners have not filed any document before the learned Magistrate at the stage of consideration of the matter regarding charge. The defence has annexed copy of the order of this Court in two cases to the present application. In the present Revision we are concerned with the legality or propriety of the impugned order. The learned Magistrate has passed the impugned order on consideration of the materials contained in the case diary. The documents annexed with the present Petitioner were not before the learned Magistrate. Moreover, in view of the Apex Court decisions already referred to above, the only materials which can be looked into by the Magistrate at the stage of framing of charge is the police report and the documents referred therein or sent u/s 173 of the Code. The defence documents have not to be considered at that stage. In the circumstances, the case relied upon by learned Counsel for the Petitioners does not assist him.

As regards the contention that the matter is of civil dispute, it cannot be decided at this stage. The informant had claimed possession of the disputed plot not a matter which may be said to be civil dispute for which remedy may be in a Civil Court. If the offence has been committed by use of fire arm it may be looked into by the criminal court. I have also perused the case diary and I find that the learned Magistrate is not wrong in observing that the eye witnesses have supported the prosecution case during investigation. Thus the observation of the learned Magistrate that there, is prima facie case for framing of charge cannot be said to be without basis. I find no infirmity or illegality in the impugned order.

Criminal Revision Application is devoid of merit and dismissed accordingly. Record of the Trial Court may be remitted back without delay.