Jhasketan Padhi alias Tikina Das vs State of Orissa

A.S. Naidu, J.—The Petitioner in this Criminal Revision challenges the order dated 12th May" 2003 passed in Sessions Case No. 408/2002/ 2001 by the First Additional Sessions.Judge, Berhampur framing charge against him u/s 302/34 Indian Penal Code on the ground that the said order suffers from the vice of non-discussion of the materials basing upon which the charge was framed.

Section 228 of the Code of Criminal Procedure (hereinafter referred to as the ''Code'') deals with framing of charge and reads as follows:

Framing of charge -

If, after such consideration and hearing as aforesaid, the Judge is opinion that there is ground for presuming that the accused has committed an offence which

(a) is not exclusively triable by the Court of Session, he may frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate, and thereupon the Chief Judicial Magistrate shall try the offence in accordance with the procedure for the trial of warrant case instituted on a police report;

(b) is exclusively triable by the Court, he shall frame in writing a charge against the accused.

Where the Judge frames any charge under Clause (b) of Sub-section (1), the charge shall be read and explained to the accused arid the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried.

According to Mr. H.S. Misra, Learned Counsel for the Petitioner, for the purpose of framing charge, the Judge is required to judicially consider the materials available on record and arrive at a subjective satisfaction that the accused was reasonably connected with the offence alleged to have been committed and that on the basis of the said materials there is a reasonable probability or chance of the accused being found guilty of the offence alleged. Elaborating his submission, Mr. Misra submitted that framing of charge without any basis, foundation or material collected against the Petitioner would amount to futile exercise and the Petitioner will be made to undergo and face the rigours of criminal trial without any of his fault or without any remote possibility of his conviction.

Sheet-anchoring his argument on the observations made by the SC in the case of State of Karnataka Vs. L. Muniswamy and Others, , it is contended that while framing charge, the object of the provisions of the Code requires the Sessions Judge to record his reasons, so is to enable the superior Court to examine the correctness of the reasons basing upon which the Court has arrived at a conclusion that there is or is not sufficient ground for proceeding against the accused. According to Mr. Mishra, the Sessions Judge had to disclose in the order the basis on which he framed the charge, more so when objection had been filed by the Petitioner before him. Summing up his arguments, Mr. Misra submitted that in the impugned order the Court below has not disclosed any of the materials basing upon which he arrived at a prima facie conclusion and thus the order taking cognizance of offence is liable to be quashed.

Mr. Pradhan, learned Addl. Standing Counsel for the State, at the other hand submitted that at the time of framing of charge it is not necessary for the prosecution to establish beyond all reasonable doubts that the accusation which it is bringing against the accused is bound to be brought home against him. According to him, the object of Sections 227 and 228 of the Code is to ensure that the Court should be satisfied that the accusation made against the accused is not frivolous and that there is some material for proceeding against him. At the time of framing charge, the Court has to look into the allegations of the prosecution and the materials produced before it to substantiate such allegations and arrive at a prima facie conclusion that the materials reveal connection of the Petitioner with the offence alleged to have been committed by him and there is reasonable probability of the accused being found guilty. Relying upon the decision of the SC in the case of Smt. Om Wati and Another Vs. State, through Delhi Admn. and Others, it was submitted that No. reasons are required to be recorded by the Court below when charges are framed against the accused. In para-7 of the said judgment, the SC observed as follows:�

Section 227 of the Code provides that if upon consideration of record of the case and the documents submitted therewith, the Judge considers that there is No. sufficient ground for proceeding against the accused, he shall discharge the accused for which he is required to record his reasons for so doing. No. reasons are required to be recorded when the charges are framed against the accused persons. This Court in Kanti Bhadra Shah and Another Vs. The State of West Bengal, held that there is No. legal requirement that the trial Court should write an order showing the reasons for framing a charge.

Mr. Pradhan also relied upon,the decision of the SC in the case of Kantibhadra Saha v. State of Bengal, AIR 2000 SC 525.

After hearing the Learned Counsel for the parties and perusing the materials available on record, I find that the learned Court below had not only heard the counsel for the prosecution, but also the counsel for the defence and considered the petition filed for discharging the accused. On perusal of the statements of the witnesses recorded u/s 161 Code of Criminal Procedure, the seizure-list and other materials, the learned Court below was satisfied that there were strong prima facie materials against the accused and that there was sufficient ground to presume that the accused had committed the offence u/s 302 read with Section 34 Indian Penal Code and accordingly framed the charge.

In consonance with the scope of Sections 227 and 228 of the Code, the Court at the initial stage of framing of charge has to consider the materials placed before it by the investigating agency. Even on the basis of a strong suspicion founded on materials placed before it, the Court can form a presumptive opinion regarding existence of factual ingredients constituting the offence alleged and in that event would be justified in framing charge against the accused in respect of commission of offence alleged against him.

Law is well settled that if.the trial Court on consideration of the materials available prima facie arrives at a conclusion and decides to frame a charge, there is No. legal requirements that he should pass an order specifying the reasons as to why he opts to do so. Framing of charge itself is prima facie order and reveals that the trial Court has formed an opinion considering the prosecution report, other materials and after hearing both sides, that there is a ground for presuming that the accused has committed the offence alleged.

A cumulative reading of Sections 227 and 228 of the Code reveals that the Court is required to record his reasons only for discharging the accused, but there is No. such requirement if he formes the charge. In such a situation, the Court is only required to frame the charge in writing against the accused.

The ratio of the decisions of the SC referred to above also clearly reveals that Section 228 does not in terms require that the Court should pass a formal order giving its reasons for framing of charge. In view of the aforesaid position of law, I am not in a position to accept the submissions raised by Mr. Misra and decline to interfere with the impugned order which, according to me, is just, proper and in consonance with the provisions of law.

The Criminal Revision is accordingly dismissed. But in view of the fact that the matter was pending in this Court for quite some time, I direct that the Court below shall grant at least one month''s time to the accused-Petitioner to get ready for trial. The trial be concluded as expeditiously as possible.