Premawati Das vs Thakur Das

Shambhu Prasad Singh, J.—The complainant has filed this application under Sections 435 and 439 of the Code of Criminal Procedure (hereinafter referred to as ''the Code'') against an order discharging the accused-opposite partv for offence under Sections 354 and 420. Indian Penal Code. The Magistrate discharged the accused opposite party u/s 253(1) of the Code. An application in revision against the said order before the Sessions Court ''has also been dismissed.

The case of the petitioner was that there was a written agreement between the husband of the complainant-petitioner and the opposite party by virtue of which the opposite partv was to execute a sale deed1 on receiving full consideration monev. This agreement was of the year 1962. -On 11th of Jan.. 1965, at about 7 p.m. the opposite partv came to the petitioner and demanded Rs. 2,000/- towards consideration money of the said sale deed and further told her that the sale deed would be -written and executed in her favour at the Monghyr Gurudwara where she should come. She paid the money. On the following dav. i. e.. the 12th of January, 1965, she accompanied bv one Chandrawati. who was examined as a prosecution witness in the case, went to the Gurudwara at about 4.30 p.m. The opposite party did not execute the sale -deed, rather he wanted to outrage her modesty, assaulted her with that intent and caught hold of her hand and also abused her.

The defence of the opposite partv was that as the petitioner and her husband failed to pav the consideration money within a reasonable time, the opposite . party executed the sale deed in respect of the property concerned in favour of one Smt. Janki Devi on the 12th of January. 1965. Being annoyed with that the petitioner instituted a false ase.

The petitioner had lodged a first information report at the town police station, Monghyr. Police submitted final report in the case declaring the case to be false On 20th of January, 1965, the petitioner filed a protest petition which was treated as a petition of complaint. The learned Magistrate has discussed the evidence led on behalf of the prosecution -and has held that as the prosecution on the evidence adduced failed to make out ingredients of the offences under Sections 354 and 420 of the Indian Penal Code he was discharging the accused u/s 253 of the Code.

Learned Counsel for the petitioner has submitted that the Magistrate has discussed the evidence as if he was finally deciding whether the prosecution was able to prove the guilt of the accused or not and that at this stage he should have merely examined the evidence from the view point whether the prosecution was able to make out a prima facie case. In a warrant trial started on the basis of a complaint, the procedure in the matter of discharging the accused or framing charge against him is to be followed as laid down in Sections 253 and 254 of the Code. These sections read as follows:

253 (1), If, upon taking all the evidence referred to in Section 252, and making such examination (if any) of the accused ai the Magistrate thinks necessary, he finds that no case against the accused has been made out which, if un-rebutted, would warrant his conviction, the Magistrate shall discharge him.

(2) Nothing in this section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless.

If, when such evidence and examination have been taken and made, or at any previous stage of - the case, the Magistrate is of opinion that therp is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent t0 try, and which, in his opinion, could be adeauatelv rounished bv him, he shall frame in writing a charge against the accused.

According to Section 253(1) of the Code, the accused is to be discharged when the Magistrate finds that no case against the accused has been made out which, if un-rebutted, would warrant his conviction. According to Section 254 of the Code, charge is to be framed against the accused only if. on the eyidence already adduced by the prosecution, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under Chapter XXI of the Code. Thus, charge can be framed only when an offence is made out and not otherwise. True it is that it has been held in some cases that at the time of framing a charge it is not necessarv to consider whether on the evidence the guilt has been brought home beyond reasonable shadow of doubt and this auestion is to be considered at the final decision of the case. It has been held in some other cases that there should , at least be a prima facie case for drawing up of the charge. Therefore, a Magistrate may frame a charge even if he finds that there is prima facie case against the accused. It does not. however, follow from that that at the stage of framing the charge, the Magistrate cannot examine the prosecution evidence in detail. The language of Section 254 of the Code shows that for the purposes of framing a charge in a warrant case, the evidence already led must be of such a nature that if that remains unfebutted by the defence, the accused may be convicted on it. The language of Section 207-A or of Section 209 of the Code is different. In a commitment enquiry, the Magistrate before discharging an accused has to record a findr-ing that there are no sufficient grounds for committing the accused persons for trial. Therefore the rule laid down in cases arising out of commitment enquiry that the Magistrate should only sift the evidence to see if onlv prima facie case is made out and should not assume jurisdiction of Sessions Court cannot apply to cases of warrant trial.

Learned counsel for the petitioner has placed reliance on the decision in Mahant Abhey Dass Vs. S. Gurdial Singh and Others, wherein it has been held that when on allegations made against an accused prima facie case is made out against him, he should not be discharged u/s 253(2) of the Code. That was not a case of discharge u/s 253(1) of the Code, but u/s 253(2) of the Code. No evidence had been led before the Magistrate in that case on behalf of the prosecution. He had to decide whether to discharge the accused or not only on the allegations made in the petition of complaint. Different considerations do arise''in such a case and: the rule laid down in that decision is of no help to the petitioner of the Present case. In Kashi Pra-sad v. Gobardhan Sharaf. 1972 BLJR 718 on which learned counsel for the petitioner has also placed reliance, a learned single Judge of this Court has held that if the Magistrate frames charge without examining the accused, he does not commit an illegality. In thfe case the Magistrate had framed chargafagainst the accused) and their petition against that order was dismissed bv this Court. The decision in this case is not an a''uthoritv for the proposition that if the Magistrate discusses evidence in detail for finding out whether he should frame charge against the accused or discharge him his order of discharge would be bad.

In the instant case, on the prosecution case itself no receipt was granted to the petitioner when she roaid Rupees 2,000/- to the opposite party on 11th of January. 1965. Ordinarily the petitioner was not likely, to have paid a sum of. Rs. 2.000/-.ito the opposite �arty without at receipt fox the same from him. In the circumstances, if the Magistrate thinks, that the prosecution, case that the petitioner was cheated bv the opposite party of Rs. 2,000/- on the assurance that a sale deed would be executed on the following, day was not prima facie established, he--cannot be said to have taken'' a view of the evidence in the case which a prudent person is not likely to take of it. If the-prosecution case as to what happened on, 11th of January. 1965 itself is not prima, facie established, then it follows that its-case as to what happened the following day. the 12th of January. 1965, also cannot be prima facie established. If the petitioner had not paid Rs. 2,000/- to the-opposite party on 11th of January 1965. she was not likely to so to the Gurudwara on the following day for getting a sale-deed written and executed and if she did not go to the gurudwara the following day,, there could'' be no question of outraging; her modesty there. The Magistrate also cannot be said] to have taken an incorrect-view in observing that Gurudwara is not a place where the opposite party would want to outrage the modesty of the petitioner.

It is true that the prosecution, has examined some witnesses that the-petitioner when she came out of the Gurudwara was weeping and told them as to what had. happened there. It may foe that on learning that the opposite party had executed a sale deed in favour of another person, the petitioner on her own accord might have gone to Gurudwara to protest and at that place there might have been exchange of abuses between the petitioner and the opposite party leading the petitioner to weep. But. on the basis of the evidence of the aforesaid prosecution witnesses whom the petitioner met after coming out of the Gurudwara. it cannot be said that the evidence on the record shows that the prosecution has been able to prove prima facie that the opposite party committed offences under Sections 354 and 420 of the Indian Penal Code Admittedly those witnesses are not eye witnesses of the occurrence. They merely repeat what they were told by the petitioner.

In my opinion, it is not a case where this Court should interfere in exercise pf its power of revision with the orders passed by the Courts below. The application accordingly fails and is dismissed.