Paramjit vs Jagdish Lal

M.L. Singhal, J.

Vide order dated 20.5.97, Additional Chief Judicial Magistrate, Hoshiarpur charged Jagdish Lal and Mohinder Kaur respondents herein in case FIR No. 345 dated 18.11.96 registered under section 427/435 IPC at PS Sadar Hoshiarpur lodged by Paramjit for an offence punishable under section 435/34 IPC.

Jagdish Lal and Mohinder Kaur went in revision against the said order to the court of Session. Learned Additional Sessions Judge, Hoshiarpur vide order dated 23.5.98 accepted the revision and discharged Jagdish Lal and Mohinder Kaur. Aggrieved from the order dated 23.5.98 passed by Additional Sessions Judge, Hoshiarpur, Paramjit son of Dalip Chand has come up in revision to this Court.

I have heard the learned counsel for the parties and have gone through the record.

The prosecution case in brief is that Gurmel Chand PW had sown fodder near the field of Paramjit son of Dalip Chand. On 9.11.96 at about 4 PM, Gurmel Chand was cutting fodder in his field. Within his sight, Jagdish Lal and Mohinder Kaur reached the field of Paramjit in which he had set up kup of turi. Jagdish Lal took out match box from the pocket of his pants. Mohinder Kaur took out one bottle of kerosene from her shawl which she was wrapping around her and sprinkled kerosene on the kup of turi. Jagdish Lal lighted the match stick, and set the kup of turi on fire. Gurmel Chand raised raula. Jagdish Lal and Mohinder Kaur went away. In the meantime, Dalip Chand resident of Islamabad came to the spot from his house situated nearby. Gurmel Chand hurriedly started the tubewell of Paramjit. He and Dalip Chand extinguished the fire by taking water from the water course. Kup of turi got burnt due to the excess of high flames of fire. Leaving Dalip Chand at the spot, Gurmel Chand went to the house of Paramjit in village Shergarh and narrated the entire story to Paramjit and his wife Nirmal Kaur. They both come to the spot along with Gurmel Chand.

Learned counsel for the petitioners submitted that Magistrate framed charge on consideration of the statements of witnesses recorded under section 161 Cr.P.C. and the documents attached to the challan and on consideration of the statements of witnesses recorded under section 161 Cr.P.C. and the perusal of documents on record, the Magistrate found that there was prima facie case against the accused punishable under section 435/34 IPC. It was submitted that the Additional Sessions Judge should not have interfered with this order of the Magistrate and discharged the accused as at the time of the frame of charge, the Magistrate was only to see whether on consideration of the police report and the documents sent with it under section 173 Cr.P.C. and making such examination, if any, of the accused as the Magistrate thought necessary and after giving the prosecution and the accused an opportunity of being heard there was ground for presuming that the accused had committed an offence triable under this chapter (Chapter IX of the Criminal Procedure Code) which he was competent to try and which in his opinion could be adequately punished by him and then he would frame in writing a charge against the accused. Section 239 Cr.P.C. reads as follows :

When accused shall be discharged If, upon considering the police report and the documents sent with it under section 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.

Section 240 Cr.P.C. reads as followed. :

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.

Use of the words "ground for presuming" in section 240 Cr.P.C. suggests that the Magistrate is only to see at the time of framing of charge whether there is sufficient evidence warranting the trial of the accused. He will discharge the accused if he feels that there is not even so much evidence warranting even the trial of the accused. Magistrate shall not refuse to frame charge even if in his opinion evidence sought to be produced is not sufficient enough to sustain conviction.

It was not a case where there was absolute lack of evidence so that even charge could not be framed and the framing of charge was groundless. There was evidence both oral and documentary attached with the challan on the basis of which charge should have been framed.

Learned counsel for the respondents submitted that there is no material on the recorded to show that Paramjit was owner in possession of the kup of turi or that Paramjit was in possession of such and such khasra number and he had sown wheat in that khasra number. Suffice it to say, at the time of frame of charge, the Additional Sessions Judge was not required to examine microscopically the evidence sought to be relied upon by the prosecution to sustain the charge.

While accepting the revision, learned Additional Sessions Judge went into the realm of appreciating the evidence relied upon by the prosecution to sustain the charge forgetting that at the time of frame of charge, the requirement was only this much whether there was ground for presuming that the accused had committed an offence triable on the consideration of the police report and the documents sent with it under section 173 Cr.P.C. and making such examination, if any, of the accused as the Magistrate thought necessary.

Faced with this position, learned counsel for the respondents submitted that the State has not come up to this court in revision and Paramjit has no locus standi to come up in revision. In support of this submission, he drew my attention to AIR 1966 SC 911 where it was held that in a case which is proceeded on a police report, a private party has no locus standi. No doubt the terms of section 435 Cr.P.C. are very wide and even he can take up the matter suomotu. The criminal law is, however, not to be used as an instrument wrecking private vengeance by an aggrieved party against the party who according to that party had caused injury to it barring a few exceptions in criminal matters, the party who is treated as the 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 is accused against the social interests of the society to book. He drew my attention to Abdur Karim v. The State and others, 1981 Crl.L.J. 219 where it was held that a private party has no locus standi to move against an order of acquittal passed by Sessions Judge on an application made under section 321 by Public Prosecutor who was conducting the case. The PP being the custodian of public interests, he is the only person who can make application for withdrawal and if withdrawal is granted by the court in the interest of administration of justice, private party can come up in revision against that order of withdrawal. He drew my attention to M/s Kerala Transport Co. v. D.S. Soma Shekar and others, 1982 Crl.L.J. 1065 where similar view was taken that private party has no locus standi to invoke revisional jurisdiction.

In this case, State ought to have come up in revision to this court and assail the order of discharge passed by Additional Sessions Judge, Hoshiarpur if the State meant to advance the cause of justice. It is a case where the court should entertain revision at the instance of a private party with a view to advance the cause of justice. If this court refuses to entertain this revision at the instance of a private party, injustice would stand perpetuated. So, this revision is accepted and the impugned order passed by Additional Sessions Judge, Hoshiarpur is set aside. Case would now go back to the Magistrate for trial according to law.

Revision allowed.