State of H.P. vs Rajinder Singh

Lokeshwar Singh Panta, J.—This revision petition under Sections 397/401 read with Section 482 of the Code of Criminal Procedure, is directed against the impugned order dated 23.8.1994 passed by the Sessions Judge, Shimla, discharging the accused for the commission of offence u/s 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter called the NDPS Act).

The brief facts of the case are that on 9.4.1994 at about 3.30 PM, Inspector Ravinder Sharma alongwith ASI Pramad Shukla, constables Sham Lal, Sanjiv Kumar and Mahidhar was on Patrol duty near State Bank of India, Regional Office, Lakkar Bazar, Shimla. When the patrol party reached near Poabo road at Shankli, they noticed one person carrying a polythene envelope in his hand on seeing the police party, the said person turned back and tried to give slip to the police party. However, he was over-powered by the police and apprehended. The police asked him about his identity, who disclosed his name Rajinder Singh. The police after taking his consent in writing searched the person of the accused. On search, 1 Kg. 50 grams ''Charas'' was recovered from his possession. Out of the recovered "Charas", two samples weighing 25 grams each were drawn and the samples and the remaining "Charas'' were duly sealed. After completing the entire proceedings, Ruqa was sent to the police station for registration of the case through constable Mahidhar. On the basis of the said Ruqa First Information Report No. 115/94 dated 9.4.1924 was recorded at Police Station Sadar, Shimla. During the search of the accused, Assistant Superintendent of Police alongwith constable Sanjiv Kumar also reached the spot. After the completion of investigation, charge-sheet was submitted before the Sessions Judge requesting him to frame charge against the accused. The Sessions Judge, Shimla after having gone through the charge-sheet and statements made by the witnesses before the police as also other documents came to the conclusion that there was no sufficient ground for framing a charge against the accused and he accordingly discharged him, apparently, u/s 227 of the Code of Criminal Procedure, 1973 (hereinafter for short the Code). The State of H.P., feeling aggrieved against the impugned order of discharge has preferred this revision petition in this Court.

The short point which arises for determination in this case is the scope and the ambit of an order of discharge to be passed by the Sessions Judge u/s 227 of the Code.

We have perused the order of the Court below and heard the learned Counsel on both sides. We gave our anxious consideration to the material on record.

Section 227 of the Code of Criminal Procedure having bearing on the contentions urged for the parties, provides:

Discharge-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.

Section 228 requires the judge to frame charge if he considers that there is ground for presuming that the accused has committed the offence. The scope of these two sections has already been the subject matter of consideration by the Apex Court in State of Bihar Vs. Ramesh Singh, Untwalia, J.,while explaining the scope of the said section observed: (P 2019 para-4).

Reading Sections 227 and 228 together in juxtaposition, as they have got to be, it would be clear that at the beginning and the initial stage of the trial the truth veracity and effect of the evidence which the prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be attached to the probable defence of the accused. It is not obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter u/s 227 or Section 228 of the Code. At that stage the Court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused.

In Union of India (UOI) Vs. Prafulla Kumar Samal and Another, Fazal Ali, J., summarised some of the principles (P-369 para 10):

(1) That the Judge while considering the question of framing the charges u/s 227 of the Code has the undoubted power to shift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out;

(2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial.

(3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down in a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused he will be fully within his right to discharge the accused.

(4) That in exercising his jurisdiction u/s 227 of the Code the Judge which under the present Code is a senior and experienced Court cannot act merely as a Post Office or a mouth-piece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This, however, does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.

The principles enunciated above in these two decisions have been reiterated by the Supreme Court in Stree Atyachar Virodhi Parishad Vs. Dilip Nathumal Chordia and Another, and Niranjan Singh Karam Singh Punjabi and Others Vs. Jitendra Bhimraj Bijja and others,

We shall now apply the principles enunciated above to the present case in order to find out whether or not the Court below was legally justified in discharging the accused. Now, in the instant case, the learned Sessions Judge has taken two factors into consideration while discharging the accused. Firstly, it is noticed that the accused is a vegetable seller and his shop is situated near Goodwood and if it is so, there was no occasion for him to remain absent from the shop which fact shows that the shop of the accused was raided and nothing was found in it as is clear from the Ruqa. There is no description about the search of the shop of the accused in the Ruqa nor in any other document and the statements of witnesses recorded u/s 161 code of criminal procedure are also silent about this fact. It appears that Ruqa was purposely prepared by the Investigating Officer in order to fasten the case against the accused showing that he was not apprehended in his shop but he was apprehended somewhere else. Secondly, if it is believed that the accused was suddenly aprehended during day time at about 3.30 P.M., then it was the bounden duty of the Investigating Officer to produce him before a Magistrate for search but the Investigating Officer failed to do so. Further, the case property was never produced before the Magistrate and was kept in the Malakhana without stamp on the sealed parcels in order to ensure (sic) any manipulation. It is also noticed by the learned Sessions Judge that the accused was apprehended at 3.30 P.M. and his arrest was shown at 8.30 P.M.

We have perused the charge-sheet, statements of the witnesses recorded u/s 161 and other documents appended therewith. On the basis of perusal of the record, prima facie, it is clear that the accused was apprehended in a public place while the police party was on patrol duty. Before conducting the search, the accused was asked by the Investigating Officer in the presence of two independent witnesses, namely, Sanjiv Sharma and Sukh Chain, whether he wanted to give his search before a Gazetted Officer or Magistrate. The accused appears to have made a statement that he had no objection if the search was made by the Investigating Officer. On such search, 1 Kg. 50 grams Charas was found from his possession. The accused was also informed of the grounds for his arrest as envisaged u/s 52(1) of the NDPS Act. The Investigating Officer appears to have informed his superior officer, namely, Assistant Superintendent of Police, Shimla, who also reached on the spot. From the report of the Assistant Chemical Examiner, the sample sent to him was found that of ''Charas''. The two independent witnesses joined by the Investigating Officer while conducting the search etc., have also supported the prosecution case in their statements u/s 161 code of criminal procedure .The ''Charas'' found from the possession of the accused was in large quantity and burden lies upon him to explain the possession thereof. The material placed before the Court, prima facie, discloses grave suspicion against the accused about the commission of the alleged offence. The learned Sessions Judge ought to have given fair chance to the prosecution to explain the discrepancies, irregularity or illegality, if any, allegedly noticed by him in conducting the investigation by the Investigating Officer. If the accused is charged and tried on the basis of the material brought by the police on record, the accused would also get proper opportunity to explain the possession of the "Charas" recovered from him, to defend himself effectively by cross-examining the witnesses and to plead'' his innocence in accordance with law. The learned Sessions Judge is not justified in discharging the accused in the facts and circumstances of the case. We may impress upon the learned trial Judge that in future he should take into consideration the principles laid down by the Apex Court in the judgments referred to above while considering the case at the initial stage of framing the charge(s) against the accused.

For the foregoing discussion, we allow this revision petition, set-aside the impugned order and the learned Sessions Judge is directed to frame the appropriate charge against the accused in accordance with law. By way of abundant caution, we make it clear that while dealing with the matter, the learned trial Judge shall not allow himself to be influenced by anything said in this order in regard to the merits of the case. The parties are directed to appear before the learned Sessions Judge, Shimla on August 11, 1995. The record of the trial Court be sent back forthwith.