Naresh Chandra vs State of U.P.

B.L. Yadav, J.—These criminal revisions are directed against the order dated 25-2-1986 passed by the II Additional Sessions Judge, Aligarh, allowing the revisions and setting aside the order of discharge dated 13-4-1983 passed by the Judicial Magistrate I, Aligarh for the offences under Sections 420/468/120-B IPC read with Sections 3/7 of the Essential Commodities Act. As these two revisions arise of the same order in similar questions, it is accordingly convenient to decide them by a complainant.

The present applicants along with Shyam Lal, Subhash, Rajendra and Kripal were charged for the offences under Sections 420, 468 and 120-B IPC read with Sections 3/7 of the Essential Commodities Act. The prosecution case was that these persons exported rice out of State of U.P. by entering into a conspiracy to commit fraud and deception, in contravention of the provisions of the U.P. Rice, Paddy Levy Regulation of Trade and Control of Movement Order, 1975. This was a trial of warrant case by a Magistrate under Chapter 19 of the Code of Criminal Procedure, 1973 (for short the Code). Apart from other evidence the statement of Shri Bhikhari Das Sharma, Assistant Station Master, Somana Railway Station, District Aligarh, was recorded u/s 164 of the Code who stated that he knew the accused Shyam Lal, Subhash and Sri. Bhagwan (applicant in Criminal Revision No. 793 of 1986) and these persons were dealing in foodgrains business. While Shyam Lal and Sri. Bhagwan came to him and indicated their intention to book Jwar from his station, since 1974 to 5th July, 1976 eight wagons were booked and they were sent outside the State of U.P. One Sri. Ram came with Sri. Bhagwan on 26-7-76 and booked Jwar for Bombari Railway Station. Similarly the accused Subhash booked Jwar for Chitari Railway Station. In August 1976 it transpired that the goods booked by these persons were rise and not Jwar. When contacted by him (Sri. Bhikhari Das Sharma) they old that since the price of rice in Maharashtra was considerably high, hence they started this business. It was also revealed that the name of Sri. Ram was in fact Devi alias Devi Dutt.

In Criminal Revision No. 554 of 1986 Naresh Chandra is applicant. Sri. Krishna Sahgal, Station Master, Gul Lahar Railway Station made a statement that on 30-7-76 one person named Sukhbir deposited Rs. 70/- for a wagon, and he signed all the papers in his presence but the said wagon was detained at Bombari Railway Station as it was found to contain rice in place of Jwar. It was revealed from Delhi that Sukhbir was the fake name of Naresh Chandra, the applicant. He along with Shyam Lal, Subhash Chandra etc. was discharged by the Magistrate by an order dated 13-4-1983 purporting to have been passed u/s 239 of the Code. The revision by the State of U.P. was allowed on 25-2-1986 and the order dated 13-4-83 was set aside as regards Shyam Lal, Subhash and the present applicants were concerned they were directed to stand their trial and the proper charges were to be framed against them. Against that order dated 25-2-86 the present revisions have been filed.

Sri. S.N. Verma appeared for Sri. Bhagwan whereas Sri. Palok Basu appeared for Sri. Naresh Chandra. It was urged by the learned Counsel for the applicants that the order of discharge passed by the learned Magistrate was correct and it was passed in view of the provisions of Section 239 of the Code. The Sessions Judge erred in allowing the revisions and in setting aside the order of discharge.

Sri. Harihar Prasad Tripathi, the learned Counsel for the State urged that the learned Magistrate failed to pass an order consistent with the provisions of Section 239 of the Code in a warrant case triable by a Magistrate under Chapter 19 of the Code. The order of discharge can be passed only if the charge appears to be groundless.

Having heard the learned Counsel for the parties, the first point for determination is as to whether impugned order of discharge passed be Magistrate u/s 239 was correct. Ex abundenti Cautela, the relevant statutory provisions of Section 239 of the Code are set out as follows:

When accused shall be discharged:

If, upon considering the police report and the document 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 reasons for so doing.

It is better to read Section 239 along with Section 240 of the Code which runs as follows:

240 Framing of charge: (1) 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, 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.

(2) The charge shall then be read and explained to the accused, and he shall be asked whether he pleads guilty of the offence charged or claims to be tried.

The principles of interpretation of criminal laws are that the statutes prescribing punishments must be strictly construed in favour of the accused. But if the intention of the legislature as expressed by the language employed is clear, it must be interpreted in that light. An observation in Corpus Juris Secundum Vol. 24-B, Page 558 para 1797 is as follows:

Statutes prescribing punishments are strictly construed in favour of the accused, or convicted persons, but not with the intention to prevent punishments, unless no other alternative is permissible...They are not construed against an accused or convicted persons beyond their liberal or obvious meanings.

Section 239 enacts that after considering the police report and the documents sent therewith u/s 173, if the Magistrate considers the charge against the accused to be groundless, he shall pass an order of discharge. It is well known that a trial of warrant case by Magistrate (under Chapter 19) proceeds on the basis of the police report and the documents sent therewith u/s 173 and this is certainly not a complaint case where it is initiated on the basis of the statements of the complainant and his witnesses. The police being an agency of the Executive, the legislature appears to repose comparatively better confidence in the police and its investigation agency and its result as it is conducted by well trained and experienced hands. These are the impelling reasons why it has been provided that if after considering those papers the Magistrate considers the charge to be "ground-less", he shall discharge the accused and record his reasons. The word '' groundless '' obviously means, having no ground or foundation, lacking case or reason for support, in other words, without any basis at all. According to Black''s Law Dictionary word ''Ground'' means a foundation or basis; points relied on; ground for bringing civil action, or charging criminal Defendant or foundation for admissibility of evidence.'' In this way word "groundless" would mean without any foundation for charging an accused or without any foundation for admissibility of evidence. This evinces that if after considering the police report and other documents the charge appears to be without any basis or foundation or without any foundation for admissibility of evidence, the Magistrate can pass an order of discharge. To put it differently if there appears to be slightest admissible evidence for framing charge u/s 240, the order of discharge cannot be passed.

u/s 240, charges can be framed, if after consideration and examination, the Magistrate is of opinion that there is ground for presuming or in other words if there'' is a prima facie case on the basis of materials before the Court. The intendment of the legislature in enacting different provisions of discharge has been expressed in the language used. In Chapter XVIII (Eighteen) dealing with trial before a Court of Session u/s 227 (Two Hundred Twenty Seven) if upon consideration of the record of the case and documents submitted and after hearing parties there is no sufficient ground for proceeding against the accused, he shall pass an order of discharge. Whereas u/s 245 (Two Forty Five) where a Magistrate deals with a complaint case, if on consideration of record the Magistrate considers that no case against the accused has been made out he shall discharge him, unless of course in view of Sub-section (2) he has been discharged at any previous stage of the case. By employing different language in different sections dealing with discharge, the intention of legislature is reflected. In a complaint case being tried by a Magistrate, he shall discharge if upon taking evidence, there is no case made out against the accused (Section 245). u/s 227, if Sessions Judge is of the view that no prima facie case has been made out, he would discharge the accused. The objection u/s 227 is just to ensure that the accusation made against the accused is not frivolous. The legislature relies upon the Sessions Judge entrusted with the task of deciding a session trial. Whereas when a warrant case is being decided by a Magistrate under Chapter XIX, Section 237, the legislature appears to be a bit suspicious, or to put it differently it has become more cautious and that is why it has taken all precautions in using word "groundless" in Section 239 (Two Hundred and Thirty Nine) which means that unless, after considering police report and other documents, the charge against the accused appears to be, without any basis or foundation, the order of discharge cannot be passed.

The interpretation of Section 239 of the Code can be viewed from another angle. As Magistrate deals with warrant cases which are very important matters, sometimes pertaining to social offences, sometimes economic offences and sometimes excise offences, hence his judicial functions are of immense importance. Section 239 is couched in a language which contains social purpose of the legislation. Apart from literal meaning of the provisions I have tried to read the provisions with social purpose behind it particularly in the light of its immediate and obvious context. Making a purposive construction to the provisions of Section 239 of the Code, it is crystel clear that a Magistrate, after considering the documents and police report cannot discharge an accused of a warrant case if there is slightest evidence against him and if he has some bonafids dobut that the accused might have committed the offence.

In R.S. Nayak v. A.R. Antulay AIR 1986 SC 2071 Para 44 broadly speaking, it was held as follows:

Inspite of the difference in language of three Sections (Sections 227, 239 and Section 245) the legal position is that if the trial Court is satisfied that a prima facie case is made out, charge has to be framed.

At the stage of discharge the standard of test has been pointed out in Supdt. and Remembrancer of Legal Affairs, West Bengal Vs. Anil Kumar Bhunja and Others, in these words:

At this stage, as was pointed by this Court in State of Bihar Vs. Ramesh Singh, the truth, veracity, and the effect of the evidence which the prosecution proposes to adduce are not to be meticulously judged. The standard of test, proof and judgment which is to be applied finally before finding the accused guilty or otherwise is not exactly to be applied. 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 constitution the offence alleged may justify the framing of charge.

Applying the aforesaid tests to the present cases apart from police report the statement of Bhikhari Dass Sharma, Assistant Station Master was recorded against the accused applicant Naresh Chandra and other accused in Criminal Revision No. 554 of 1986, whereas the statement of Sri. Krishna Sehgal, Station Master was recorded. These statements were prima facie sufficient or at best sufficient to form a presumptive opinion about the charges against the applicants could not be said, in the language of the legislature itself, that the charges are groundless. There appears to be sufficient material against the accused, hence the order of discharge passed by the Magistrate was erroneous and the same order was correctly set aside by the learned Additional Sessions Judge, Aligarh.

In view of the discussions made hereinbefore, I find no merits in these revisions and the same are dismissed. The interim orders dated 24-3-1986 passed in Criminal Revision No. 554 of 1986 and dated 22-7-1986 passed in Criminal Revision No. 793 of 1986 are vacated. The record of the case would be sent back immediately in both the cases. The office is directed to sent a copy of this order to the Sessions Judge and District Magistrate, Aligarh. These cases have dragged on for too long. What is required. However is expedition.