State of Punjab vs Mool Chand

Harmohinder Kaur Sandhu, J.

The present revision has been filed against the judgment dated 3.5.1990 rendered by Special Judge Ludhiana whereby Mool Chand respondent was discharged of the offence under Section 13(1)(d)(ii) of the Prevention of Corruption Act and Section 161 of Indian Penal Code.

The brief facts of the case are that Mool Chand, a Patwari, was charge sheeted for an offence under section 13(1)(d)(ii) of the Corruption Act read with section 161 of Indian Penal Code for having accepted Rs. 100/ as illegal gratification other that legal remuneration from one Mohinder Singh son of Kehar Singh for supplying him a copy of the jamabandi by illegal means and by otherwise abusing his position as a public servant. After the charge was framed the counsel for the respondent contended that the sanction of the prosecution of the respondent was not valid and at first the prosecution should be directed to produce evidence to prove the validity of the sanction. Evidence of the prosecution was recorded on that point and then the respondent was examined under Section 313 Cr.P.C. After hearing the counsel for the parties, the learned Special Judge observed as under :

"It seems that the sanction was granted in a routine and mechanical manner without application of mind and it was a ready made sanction order which was put up before the District Collector and he appended his signatures on the same without applying his mind. So the sanction order Ex. PA is held to be defective and resultantly, this Court cannot take cognizance of the offence. The accused is discharged of the offence with which he stood charged."

The State has assailed the above mentioned order on the ground that after framing the charge, the trial Court could not pass an order of discharge of the respondent and this order had caused a grave miscarriage of justice.

I have heard the learned counsel for the parties.

The learned counsel for the petitioner referred to the provisions of section 227 of the Code of Criminal Procedure, which read as under :

"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 not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing."

It was urged on behalf of the petitioner that once the Court was of the opinion that there was ground for presuming that the accused had committed an offence and had charge sheeted and the accused then the accused could not be discharged and he could be either acquitted or convicted. The procedure followed by the trial court in this was erroneous and piecemeal evidence should not have been recorded. I find that this contention of the learned counsel is well marited. The question whether sanction of for prosecution was valid or grant of sanction was an idle formality was to be determined at the end of the trial, after whole of the evidence of the prosecution was recorded. After framing the charge the Court was to proceed with the trial against the accused and conclude the same. This question was dealt with in the case of Rati Lal Bhanji Mithani v. State of Maharashtra and others, AIR 1979 Supreme Court 94. It was held in this case :

"Once a charge is framed, the Magistrate has no power under Section 227 or any order provision of the Code to cancel the charge, and reverse the proceedings to the stage of Section 253 and discharge the accused.The trial in a warrant case starts with he framing of charge prior to its, the proceedings are only an inquiry.m After the framing of charge if the accused pleads not guilty, the Magistrate is required to proceed with thee trial in the manner provided in Sections 254 and 258 to a logical end Once a charge is framed in a warrant case, instituted either on complaint or a police report, the Magistrate has no power under the Code to discharge the accused, not hereafter, he can either acquit or convict the accused unless he decides to proceed under Sections 349 and 562 of the Code of 1898(which correspond to sections 325 and 360 of the Code of 1973)."

This authority though related to a warrant case triable by a Magistrate, is fully applicable to the present case. There are no provisions in the Code whereby an accused can be discharge once he is charge sheeted. In the instant case it was necessary for the trial Court to record the whole of the evidence of the prosecution and conclude the trial before giving finding of `not guilty'' or otherwise. The trial Court without recording and appraising the whole evidence of the prosecution discharged the accused after he was charge sheeted. The order of discharge is erroneous and cannot be upheld.

As a result, this revision petition is accepted. The impugned order is set aside and the case is remanded back, for prosecution of the respondent in accordance with law. The parties through their counsel are directed to appear in the trial Court on 17.7.1992.