Jattu Ram vs Balwant Singh and Others

Respondents Balwant Singh and Pritam Singh were alleged to have committed the offence of murder punishable under sections 302/109 of

RPC, and upon registration of FIR No. 92 of 1992 Police Station Samba, were arrested and a challan produced against them in the Court of

learned Session Judge, Jammu, who, vide his order impugned in the petition did not frame charge against the accused under section 302 RPC and

instead charged them for the commission of offence under section 304D read with Section 109 of the RPC. Brother of the deceased has filed this

revision petition submitting that the discharge of the accused under section 302 RPC was illegal and against the provisions of law, requiring the

impugned order to be set aside.

Heard the learned counsel for the parties and perused the record.

The counsel appearing for the accusedrespondents have raised a preliminary objection regarding the maintainability of the revision petition at the

instance of the petitioner. It is submitted that as the State has chosen not to file a revision petition, no private party could be permitted to file the

revision petition against the order of discharge in view of the judgment of the Supreme Court reported in AIR 1966 SC: 911. The Supreme Court

in Thakur Ram Vs. State of Bihar AIR 1966 Sc: 911 had held that ""in a case which has proceeded on a police report, a private party has no locus

standi and that Criminal law cannot be permitted to be used as an instrument of wrecking private vengeance by an aggrieved party against the

person, who, according to that party, had caused injury to it. It was further held that barring a few exceptions, in criminal matters the party who is

treated as an aggrieved party is the State which is the custodian of the social interests of the community at large and so it is for the State to take all

the steps necessary for bringing the person who has acted against the social interests of the community to book"". The Supreme Court did not

completely exclude the private party from filing the revision petitions and took note of the exceptional cases.

In a later judgment, the Supreme Court in Pratap Vs. State of U.P. and others AIR 1973 SC; 786, held by majority that:

Under Section 439 of the Cr.PROCEDURE CODE the High Court has got ample powers and as a notice has also been issued to the appellant

to show cause why his sentence should not be enhanced, there is no illegality in the sentence of death imposed on the appellant. The power under

Section 439, Criminal Procedure Code is one which the High Court can exercise suomotu and all that a person filing a revision petition under that

section does is to draw the Courts attention to an illegal, improper or incorrect finding, sentence or order of the Subordinate Court. The fact that in

this case the brother of the deceased filed revision petition and the Government did not do so does not affect the powers of the High Court under

that Section"".

Dua J. Delivered a dissending judgment, but on the point of the locus to file the revision petition he also held that:

The power of revision in criminal cases vesting in the High Court, though wide and also exercisable suomotu is a power which, generally speaking,

is narrower and more limited than its appellate power, though in certain respects it has a some what wide scope"".

It was further held that:

Broadly stated, the object of conferring revisional power on the High Court under Section 435 and Section 439, Cr.PROCEDURE CODE is to

clothe the highest court in a State with a jurisdiction of general supervision and superintendence in order to correct grave failure or miscarriage of

justice arising from erroneous or defective orders. The error or defect may arise from misconception of Law, irregularity of procedure, misreading

of evidence misapprehension or misconception about Law or facts, mere perversity or even undue hardship or leniency. The real core of this

power is that its exercise is justified only to set right grave failure of justice and not merely to rectify every error however inconsequential. Merely

because the lower court has taken a wrong view of law or misapprehended the evidence on the record cannot by itself justify interference on

revision unless it has also resulted in grave injustice. It is no doubt not possible and is also not practicable to lay down any rigid test of uniform

application and the matter has to be left to the sound judicial discretion of the High Court in each case to determine if it should to exercise its

extraordinary power of revision to set right injustice. Administration of criminal justice is as a matter of general policy a function which the State

performs and private parties who may be inspited by a feeling or spirit or vengeance or vindictiveness are ordinarily not encouraged to prosecute

criminal proceedings except when for special reasons the cause of justice so demands. The High Court is, therefore, ordinarily disinclined to

interfere with the orders of subordinate criminal courts in which the State is the prosecutor at the instance of private parties except where for some

exceptional reason it considers proper to do so in the larger interests of justice"".

It follows therefore that in a case filed on police report the revisional power at the instance of a private party is to be exercised with due care

and caution in exceptional cases, and only when it is found that the order impugned is unjust, unfair, grossly erroneous, contrary to the provisions of

law, based upon no evidence or evidence not properly considered and the discretion vested in the Court has been exercised arbitrarily or

perversely. The powers of this Court to examine the correctness, legality or propriety of an order passed by any inferior criminal court is, in [SIC]

of fact and assence, a supervisory power. It is now well settled that the administration of justice is not confined to the consideration of appeals and

revisions and to hear all the interlocutory matters only. The High Court can at any stage of its own motion, if it so desires, particularly when

illegalities or irregularity resulting in injustice is brought to its notice, call for the records and examine them for the purposes of satisfying itself as to

the correctness, legality or propriety of any finding, sentence or order recorded or passed and as to the irregularity of any proceedings of any

subordinate Court. With the change of approach in the administration of justice and development of law on the doctrine of public interest litigation,

has further empowered this Court to exercise powers in appropriate cases, either suomotu or at the instance of an aggrieved party, provided the

action initiated is not malafide or purely taken as a matter of vengeance.

The learned counsel for the petitioner has further submitted that as the present petition is directed against the order of framing of charge, the

same is not maintainable, allegedly, being against an inter locutory order. The submission is without any substance, in as much as, the present

petition has been filed against an order by which the learned Sessions Judge has impliedly discharged the accused for the commission of offence

under section 302 RPC. It is not necessary that the order impugned in unambiguous terms should mention that the accused had been discharged,

and such discharge may be presumed by implication.

Section 268 Cr.PROCEDURE CODE does not contemplate the passing of an express order of discharge in a case where, in the opinion of the

Sessions Judge, an offence triable exclusively by the Court of Sessions is made out, though not being the same for which a charge sheet was

brought against the accused. It was held by this court in Mst. Asha vs. Abdul Rahim 1981; KLJ, 174, that:

It necessarily follows that Section 268 Cr.PROCEDURE CODE does not contemplate that there should be an express order of discharge in a

case where, in the opinion of the Sessions Judge, an offence triable exclusively by the court of Sessions is made out though not being the same for

which a charge was brought against the accused. Consequently it cannot be reasonably contended that the powers of revision are available only

where there is an express order of discharge under section 268 Cr.P. C. as well. The section contemplates an implied order of discharge as well. If

that be so, as it really is, than an implied order of discharge, can be the subject matter of a revision, as much as express order of discharge. In this

view, the preliminary objection fails"".

In the instant case also, the accused were committed to face the charge under section 302/109 RPC but vide the order impugned, they had

been charged for section 304/109 RPC, which impliedly meant their discharge under section 302 RPC.

According to the prosecution, the deceased who was a harijan belonging to a scheduled caste was, allegedly, murdered by the

accusedrespondents on the suspicion that he had developed illicit relations with the niece of the accused who was the daughter of Romal Singh. He

was thrown on the ground and subjected to beating with stones, fists and blows, in consequence of which, he died on the spot. The prosecution

had cited Romal Singh as an eye witness and a number of other witnesses to prove the circumstance with the purpose of connecting the accused

with the commission of the crime. The learned Sessions Judge, however, allegedly, perused the statements of witnesses recorded under Section

161 Cr.PROCEDURE CODE and passed the order impugned in this revision petition.

Section 268 of the Cr.PROCEDURE CODE provides that if upon consideration of the record of the case and the documents submitted

therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is no sufficient ground

for proceeding against the accused, he shall discharge the accused and record his reasons for so doing. It is now well settled that at the stage of

framing of the charge, the prosecution evidence does not commence and the court has to consider the question as to the framing of charge on the

general consideration of the materials placed before it by the Investigating Police Officer. 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 framing of the charge. At this stage, even a

very strong suspicion founded upon materials before the Judge, 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 in respect of commission of that offence. In Union of India Vs. Prafulla

Kumar AIR: 1979 SC; 366, it was held that the court can sift and weigh the evidence at the stage of framing of the charge for the limited purpose

of finding out whether or not the primafacie case against the accused has been made out. Where the material as placed before the Court discloses

grave suspicion against the accused which has not been properly explained, the Court will be fully justified in framing the charge and proceed with

the trial. The judge cannot make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting trial.

In the instant case, the trial court appears to have been influenced by the fact that as the deceased was subjected to beating with fists, blows

and stones, the accused should not have been charged under section 302 RPC. I have examined the statements of the prosecution witnesses

recorded Under section 161 Cr.PROCEDURE CODE particularly, the statement of Romal Singh and have also perused the relevant record

including the medical report, and am of the opinion, that the Trial court has committed a mistake of law by discharging the accused for the

commission of the offence under section 302 RPC at the stage of framing of the charges and committed an illegality of law by acting in a manner

which is expected to be adopted at the conclusion of the trial. In view of the test laid down by the Supreme Court there is sufficient evidence as

required under Section 268 of the Cr.P. C. which warranted the framing of charge under section 302 RPC against the respondents.

Accordingly, this petition is allowed and the order of the trial court in so far as it related to the respondents discharging them for the

commission of offence under Section 302 RPC is set aside. The learned Sessions Judge shall frame charges against the accused Under Sections

302/109 RPC and may take appropriate follow up action including the cancellation of the bail, if so required under law or upon consideration of

application filed on that behalf, if any. The record of the trial Court shall be immediately sent back, where the counsel for the parties have been

directed to appear and cause the appearance of their clients on 30.9.1993.