In the case of State of Orissa Vs. Debendra Nath Padhi,
(2005)1 SCC 568, Hon'ble Supreme court while considering the
question whether the trial court can at the time of framing of
charges consider the material filed by the accused, answered in
negative in following words:
"18. We are unable to accept the aforesaid
contention.The reliance on Articles 14 and 21 is
misplaced...... Further, at the stage of framing of
charge roving and fishing inquiry is impermissible. If
the contention of the accused is accepted, there
would be a mini-trial at the stage of framing of
charge. That would defeat the object of the Code. It
is well settled that at the stage of framing of charge
the defence of the accused cannot be put forth. The
acceptance of the contention of the learned counsel
for the accused would mean permitting the accused
to adduce his defence at the stage of framing of
charge and for examination thereof at that stage
which is against the criminal jurisprudence. By way
of illustration it may be noted that the plea of alibi
taken by the accused may have to be examined at
the stage of framing of charge if the contention of the
accused is accepted despite the well settled
proposition that it is for the accused to lead evidence
at the trial to sustain such a plea. The accused
would be entitled to produce materials and
documents in proof of such a plea at the stage of
framing of the charge, in case we accept the
contention put forth on behalf of the accused. That
has never been the intention of the law well settled
for over one hundred years now. It is in this light that
the provision about hearing the submissions of the
accused as postulated by Section 227 is to be
understood. It is only means hearing the
submissions of the accused on the record of the
case as filed by the prosecution and documents
submitted therewith and nothing more. The
expression"hearing the submissions of the accused"
cannot mean opportunity to file material to be
granted to the accused and thereby changing the
settled law. At the stage of framing of charge hearing
the submissions of the accused has to be confined
to the material produced by the police."
ALLAHABAD HIGH COURT
CRIMINAL REVISION No. - 4117 of 2016
Satendra Kumar Mishra.
V
State Of U.P. & Another
Hon'ble Amar Singh Chauhan,J.
Heard Shri Ravindra Prakash Srivastav, learned counsel for
the revisionists, learned Additional Government Advocate for the
State, Shri Anoop Kumar Pandey, learned counsel for opposite
party no. 2 and perused the records of the case.
This criminal revision has been preferred against the
judgement and order dated 8.11.2016 passed by Additional
Sessions Judge/Special Judge (P.C. Act) Court no. 4, DistrictGorakhpur
in Sessions Trial No. 248 of 2016 (State Vs. Satendra
Kumar Mishra and others) arising out of Case Crime No. 483 of
2014, under Section 498-A, 328, 323, 504 I.P.C., and Section 3/4
Dowry Prohibition Act, Police Station- Shahpur, DistrictGorakhpur
whereby the application moved by the revisionists for
discharge under Section 498-A, 328, 323, 504 I.P.C., and Section
3/4 Dowry Prohibition Act has been rejected and charge fixed for
framing charges in the above mentioned sections.
The facts which are requisite to be stated for adjudication of
this revision are that opposite party no. 2 has lodged a first2
information report against the revisionists on 21.10.2014 at about
23:30 o'clock which is registered as case crime no. 483 of 2014,
under Sections 498-A, 328, 323, 504 I.P.C., and Section 3/4 D.P.
Act, Police Station- Shahpur, District- Gorakhpur alleging therein
that her marriage was solemnized with the revisionist no. 1
Satendra Kumar Mishra on 15.2.2006 as per Hindu rites and
rituals, and sufficient dowry was given in the marriage. But the
revisionists were not satisfied with the dowry and used to torture
her by raising demand of one car and Rs. 5 lakhs as additional
dowry. On 1.6.2014, revisionists beaten her and also ousted her
from their house, therefore, she made a complaint before the
police, but on intervention of some respected persons matter has
been settled. But after sometime they again beaten her. On
7.10.2014 information has been received by the informant that
revisionists have administered poison to his daughter, thereafter,
he came at the house of revisionists and found got admitted her
to Medical College and she discharged on 8.10.2014. Pursuant to
an F.I.R., Investigating Officer after concluding investigation
submitted the charge-sheet under Section 498-A, 328, 323, 504
I.P.C., and Section 3/4 Dowry Prohibition Act against the
revisionists. During trial, revisionists moved the discharge
application on 30.8.2016 which was rejected by the court
concerned. Being aggrieved, the revisionists came up in this
revision.
Learned counsel for the revisionists submits that revisionist
no. 4 namely Sheo Murti Mishra has also lodged a first
information report against the opposite party no. 2 and three
named persons and unknown on 12.4.2015 which is registered as
case crime no. 152 of 2015, under sections 147, 452, 427, 379,
386, 323, 504, 506, 457, 120-B I.P.C.. He also filed a case under
Section 340 Cr.P.C. before the court below on 24.3.2015. It is3
further submitted that revisionist no. 1 is the husband of
informant's daughter, revisionist no. 2 is jeth who is handicapped
person, revisionist nos. 4 and 5 are father-in-law and mother-inlaw
respectively, who are old persons and revisionist no. 3 is
devar who is unemployed. Revisionists have no concern with the
present case but opposite party no. 2 falsely implicated to them
only for harassment in this case. Earlier, revisionists have filed a
Criminal Misc. Application (under Section 482 Cr.P.C.) No. 37202
of 2016 (Satendra Kumar Mishra and others Vs. State of U.P. and
another) before this Hon'ble Court which has been dismissed as
withdrawn with liberty to file criminal revision on 17.12.2016. It is
further submitted that revisionists have moved the discharge
application which was rejected on 8.11.2016 by learned Additional
Sessions' Judge/ Special Judge (P.C. Act), Court no. 4, DistrictGorakhpur,
which is illegal, unjust and unsustainable in the eye of
law and the same is liable to be quashed by the Hon'ble Court. It
is also submitted that victim is short tempered lady and after
some time of the marriage, she started quarelling with the
revisionists and she made pressure upon her husband for living
separately but the revisionist no. 1 refused the same due to which
she became annoyed and herself taken some tablet. Revisionists
took her to hospital for saving her life but informant illegally
lodged the present FIR against the revisionists only for
harassment. Revisionists neither tortured the victim for demand of
dowry nor they have committed any such type of offence as
alleged in the FIR, hence the offence under Section 498-A, 328,
323, 504 I.P.C., and Section 3/4 Dowry Prohibition Act is not
made out against the revisionists.
Per Contra, learned Additonal Government Advocate and
learned counsel for opposite party no. 2 contend that there is
sufficient material to proceed in this case against the revisionists.4
The Trial Court after considering the entire material found that
there is sufficient material to proceed further, therefore, the
discharge application was rejected by a speaking order. It is also
contended that the purpose of framing a charge is to give
intimation to the accused of clear, unambiguous and precise
notice of the nature of accusation that the accused is called upon
to meet in the course of a trial.
Before adverting to the claim of the parties, it is useful to
refer to sections 227 and 228 of the Code of Criminal Procedure,
which are reproduced below:
Discharge.
“227. 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."
Framing of charge.
228. (1) If after such consideration and hearing as
aforesaid, the Judge is of opinion that there is ground
for presuming that the accused has committed an
offence which-
(a) is not exclusively triable by the court of
Session, he may, frame a charge against the accused
and, by order, transfer the case for trial to the Chief
Judicial Magistrate or any other Judicial magistrate of
the first class and direct the accused to appear before
the Chief Judicial Magistrate, or, as the case may be,
the Judicial Magistrate of first class, on such date as
he deems fit, and thereupon such Magistrate shall try
the offence in accordance with the procedure for the
trial of warrant-cases in accordance with the
procedure for the trial of warrant cases instituted on a
police report;
(b) is exclusively triable by the Court, he shall
frame in writing a charge against the accused.Where
the Judge frame any charge under clause (b) of subsection
(1) the charge shall be read and explained to
the accused and the accused shall be asked whether
he pleads guilty of the offence charged or claims to
be tried."
Relative scope of sections 227 and 228 of the Code was
noticed and considered by the Hon'ble Supreme Court in Amit
Kapoor Vs. Ramesh Chander and another, (2012) 9 SCC 460.
The Hon'ble Supreme Court held as under:
"17. Framing of a charge is an exercise of jurisdiction
by the trial court in terms of Section 228 of the code,
unless the accused is discharged under section 227
of the Code. Under both these provisions, the Court
is required to consider the "record of the case" and
documents submitted therewith and, after hearing the
parties, may either discharge the accused or where it
appears to the court and in its opinion there is ground
for presuming that the accused has committed an
offence, it shall frame the charge. Once the facts and
ingrediants of the section exists, then the court would
be right in presuming that there is ground to proceed
against the accused and frame the charge
accordingly. This presumption is not a presumption of
law as such. The satisfaction of the court in relation
to the existence of constituents of an offence and the
facts leading to that offence is a sine quo non for
exercise of such jurisdiction. It may even be weaker
than a prima facie case. There is a fine distinction
between the language of sections 227 and 228 of the
Code. Section 227 is the expression of a definite
opinion and judgement of the court while section 228
is tentative. Thus, to say that at the stage of framing
of charge, the Court should form an opinion that the
accused is certainly guilty of committing an offence,
is an approach which is impermissible in terms of
Section 228 of the Code."
"19. At the initial stage of framing of a charge, the
court is concerned not with proof, but with a strong
suspicion that the accused has committed an
offence, which, if put to trial, could prove him guilty.
All that the court has to see is that the material on
record and the facts would be compatible with the
innocence of the accused or not. The final test of guilt
is not to be applied at that stage."
In the case of Onkar Nath Mishra and others Vs. State
(NCT of Delhi) and another (2008) 2 SCC 561, the Hon'ble Apex
Court in paragraph 11 of the judgement held as under:
"It is trite that at the stage of framing of charge the
court is required to evaluate the material and
documents on record with a view to finding out if the
facts emerging therefrom, taken at their face value,
disclosed the existence of all the ingredients
constituting the alleged offence. At that stage the
court is not expected to go deep into the probative
value of the material on record. What needs to be
considered is whether there is a ground for
presuming that the offence has been committed and
not a ground for convicting the accused has been
made out. At that stage, even strong suspicion
founded on material which leads the court to form a
presumptive opinion as to the existence of the factual
ingredients constituting the offence alleged would
justify the framing of charge against the accused in
respect of the commission of that offence."
A three Judges Bench of Hon'ble Supreme Court in the
case of State of Maharashtra Vs. Som Nath Thapa, (1996) 4
SCC 659 after noting three pairs of sections viz. (i) Sections 227
and 228 insofar as sessions trial is concerned (ii) Sections 239
and 240 relatable to trial of warrant cases, and (iii) Sections
245(1) and (2) qua trial of summons cases, which dealt with the
question of framing of charge or discharge, stated thus:
"32 ............. If on the basis of materials on record, a
court could come to the conclusion that commission
of the offence is a probable consequence, a case for
framing of charge exists. To put it differently, if the
courts were to think that the accused might have
committed the offence it can frame the charge,
though for conviction the conclusion is required to be
that the accused has committed the offence. It is
apparent that at the staage of framing of a charge,
probative value of the materials on record cannot be
gone into, the materials brought on record by the
prosecution has to be accepted as true at that
stage."
In State of M.P. Vs. Mohanlal Soni, (2000) 6 SCC 338, the
Hon'ble Supreme court held in paragraph 7 as under:
" 7.The crystallised judicial view is that at the stage of
framing charge, the court has to prima facie consider
whether there is sufficient ground for proceeding
against the accused. The court is not required to
appreciate evidence to conclude whether the
materials produced are sufficient or not for convicting
the accused."
In the case of State of Orissa Vs. Debendra Nath Padhi,
(2005)1 SCC 568, Hon'ble Supreme court while considering the
question whether the trial court can at the time of framing of
charges consider the material filed by the accused, answered in
negative in following words:
"18. We are unable to accept the aforesaid
contention.The reliance on Articles 14 and 21 is
misplaced...... Further, at the stage of framing of
charge roving and fishing inquiry is impermissible. If
the contention of the accused is accepted, there
would be a mini-trial at the stage of framing of
charge. That would defeat the object of the Code. It
is well settled that at the stage of framing of charge
the defence of the accused cannot be put forth. The
acceptance of the contention of the learned counsel
for the accused would mean permitting the accused
to adduce his defence at the stage of framing of
charge and for examination thereof at that stage
which is against the criminal jurisprudence. By way
of illustration it may be noted that the plea of alibi
taken by the accused may have to be examined at
the stage of framing of charge if the contention of the
accused is accepted despite the well settled
proposition that it is for the accused to lead evidence
at the trial to sustain such a plea. The accused
would be entitled to produce materials and
documents in proof of such a plea at the stage of
framing of the charge, in case we accept the
contention put forth on behalf of the accused. That
has never been the intention of the law well settled
for over one hundred years now. It is in this light that
the provision about hearing the submissions of the
accused as postulated by Section 227 is to be
understood. It is only means hearing the
submissions of the accused on the record of the
case as filed by the prosecution and documents
submitted therewith and nothing more. The
expression"hearing the submissions of the accused"
cannot mean opportunity to file material to be
granted to the accused and thereby changing the
settled law. At the stage of framing of charge hearing
the submissions of the accused has to be confined
to the material produced by the police."
In Union of India Vs. Prafulla Kumar Samal, (1979)3
SCC 4, the scope of section 227 Cr.P.C. was considered and
after adverting to various decisions, the Hon'ble Supreme court
has enumerated the following principles:
"(1) That the Judges while considering the question of
framing the charges under section 227 of the code has the
undoubted power to sift 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 discloses
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
depends upon the facts of each case and it is difficult to lay down
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 discharage the accused.
(4) That in exercising his jurisdiction under section 227 of
the Code the Judge which under the present Code a senior and
experienced cannot act merely as a post office or a mouthpiece
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 infirmitites 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."
Hon'ble Supreme Court in Sajjan Kumar Vs. Central
Bureau of Investigation, (2010)9 SCC, held in paragraph 24 of
the judgement as under:
"At the stage of framing of charge under section 228
Cr.P.C. or while considering the discharge petition
filed under Section 227, it is not for the Magistrate or
the Judge concerned to analyze all the materials
including pros and cons, reliability or acceptability,11
etc. It is at the trial, the Judge concerned has to
appreciate their evidentiary value, credibility or
otherwise of the statement, veracity of various
documents and is free to take a decision one way or
the other."
In Sheoraj Singh Ahlawat and others Vs. State of Uttar
Pradesh and another, (2013)11 SCC 476, Hon'ble Apex Court
after citing the catena of judgements has summorised the
principles in respect of framing of charges or discharge of the
accused and held as under:
"While framing charges, court is required to evaluate
materials and documents on record to decide
whether facts emerging therefrom taken at their face
value would disclose existence of ingredients
constituting the alleged offence. At this stage, the
court is not required to go deep into probative value
of materials on record. It needs to evaluate whether
there is a ground for presuming that accused had
committed offence. But it should not evaluate
sufficiency of evidence to convict accused. Even if,
there is a grave suspicion against the accused and it
is not properly explained or court feels that accused
might have committed offence, then framing of
charge against the accused is justified. It is only for
conviction of accused that materials must indicate
that accused had committed offence but for framing
of charges if materials indicate that accused might
have committed offence, then framing of charge is
proper. Materials brought on by prosecution must be
believed to be true and their probative value cannot
be decided at this stage. The accused entitled to12
urge his contentions only on materials submitted by
prosecution. He is not entitled to produce any
material at this stage and the court is not required to
consider any such material, if submitted. Whether the
prima facie case made out depends upon fact and
circumstances of each case. If two views are
possible and materials indicate mere suspicion, not
being grave suspicion, against accused then he may
be discharged. The court has to consider broad
probabilities of case, total effect of evidence and
documents produced before it.The court should not
act as mouthpiece of prosecution and it is
impermissible to have roving enquiry at the stage of
framing of charges."
In the case in hand, the allegation is that marriage of the
victim was solemnized with the revisionist no. 1 Satendra Kumar
Mishra on 15.2.2006 and from the very inception of the marriage,
the husband and in-laws used to torture her by raising of demand
of dowry of one car and Rs. 5 lakhs. The matter was settled but
after sometime, they againt started to beat her with cruelty and
also ousted her from their house. There was also allegation that
some poision was administered to the victim and she got
admitted in the hospital. The allegation are substantiated by the
evidence making prima facie case to proceed against the
revisionists. Whether or not those allegation are true is a matter
which cannot be determined at the stage of framing of charges.
Any such determination can take place only at the conclusion of
the trial. This may at times put an innocent party, falsely accused
of commission of an offence to avoidable harassment but so long
as the legal requirement and the settled principles do not permit a
discharge, the Court would find it difficult to do much, conceding
that legal process at times is abused by unscrupulous litigants
especially in matrimonial cases where the tendency has been to
involve as many members of the family of the opposite party as
possible.
Having considered the legality, propriety and correctness of
the order, impugned order does not suffer from any illegality or
infirmity.
The revision is accordingly dismissed.
Order Date :- 31.5.2017
(2005)1 SCC 568, Hon'ble Supreme court while considering the
question whether the trial court can at the time of framing of
charges consider the material filed by the accused, answered in
negative in following words:
"18. We are unable to accept the aforesaid
contention.The reliance on Articles 14 and 21 is
misplaced...... Further, at the stage of framing of
charge roving and fishing inquiry is impermissible. If
the contention of the accused is accepted, there
would be a mini-trial at the stage of framing of
charge. That would defeat the object of the Code. It
is well settled that at the stage of framing of charge
the defence of the accused cannot be put forth. The
acceptance of the contention of the learned counsel
for the accused would mean permitting the accused
to adduce his defence at the stage of framing of
charge and for examination thereof at that stage
which is against the criminal jurisprudence. By way
of illustration it may be noted that the plea of alibi
taken by the accused may have to be examined at
the stage of framing of charge if the contention of the
accused is accepted despite the well settled
proposition that it is for the accused to lead evidence
at the trial to sustain such a plea. The accused
would be entitled to produce materials and
documents in proof of such a plea at the stage of
framing of the charge, in case we accept the
contention put forth on behalf of the accused. That
has never been the intention of the law well settled
for over one hundred years now. It is in this light that
the provision about hearing the submissions of the
accused as postulated by Section 227 is to be
understood. It is only means hearing the
submissions of the accused on the record of the
case as filed by the prosecution and documents
submitted therewith and nothing more. The
expression"hearing the submissions of the accused"
cannot mean opportunity to file material to be
granted to the accused and thereby changing the
settled law. At the stage of framing of charge hearing
the submissions of the accused has to be confined
to the material produced by the police."
ALLAHABAD HIGH COURT
CRIMINAL REVISION No. - 4117 of 2016
Satendra Kumar Mishra.
V
State Of U.P. & Another
Hon'ble Amar Singh Chauhan,J.
Heard Shri Ravindra Prakash Srivastav, learned counsel for
the revisionists, learned Additional Government Advocate for the
State, Shri Anoop Kumar Pandey, learned counsel for opposite
party no. 2 and perused the records of the case.
This criminal revision has been preferred against the
judgement and order dated 8.11.2016 passed by Additional
Sessions Judge/Special Judge (P.C. Act) Court no. 4, DistrictGorakhpur
in Sessions Trial No. 248 of 2016 (State Vs. Satendra
Kumar Mishra and others) arising out of Case Crime No. 483 of
2014, under Section 498-A, 328, 323, 504 I.P.C., and Section 3/4
Dowry Prohibition Act, Police Station- Shahpur, DistrictGorakhpur
whereby the application moved by the revisionists for
discharge under Section 498-A, 328, 323, 504 I.P.C., and Section
3/4 Dowry Prohibition Act has been rejected and charge fixed for
framing charges in the above mentioned sections.
The facts which are requisite to be stated for adjudication of
this revision are that opposite party no. 2 has lodged a first2
information report against the revisionists on 21.10.2014 at about
23:30 o'clock which is registered as case crime no. 483 of 2014,
under Sections 498-A, 328, 323, 504 I.P.C., and Section 3/4 D.P.
Act, Police Station- Shahpur, District- Gorakhpur alleging therein
that her marriage was solemnized with the revisionist no. 1
Satendra Kumar Mishra on 15.2.2006 as per Hindu rites and
rituals, and sufficient dowry was given in the marriage. But the
revisionists were not satisfied with the dowry and used to torture
her by raising demand of one car and Rs. 5 lakhs as additional
dowry. On 1.6.2014, revisionists beaten her and also ousted her
from their house, therefore, she made a complaint before the
police, but on intervention of some respected persons matter has
been settled. But after sometime they again beaten her. On
7.10.2014 information has been received by the informant that
revisionists have administered poison to his daughter, thereafter,
he came at the house of revisionists and found got admitted her
to Medical College and she discharged on 8.10.2014. Pursuant to
an F.I.R., Investigating Officer after concluding investigation
submitted the charge-sheet under Section 498-A, 328, 323, 504
I.P.C., and Section 3/4 Dowry Prohibition Act against the
revisionists. During trial, revisionists moved the discharge
application on 30.8.2016 which was rejected by the court
concerned. Being aggrieved, the revisionists came up in this
revision.
Learned counsel for the revisionists submits that revisionist
no. 4 namely Sheo Murti Mishra has also lodged a first
information report against the opposite party no. 2 and three
named persons and unknown on 12.4.2015 which is registered as
case crime no. 152 of 2015, under sections 147, 452, 427, 379,
386, 323, 504, 506, 457, 120-B I.P.C.. He also filed a case under
Section 340 Cr.P.C. before the court below on 24.3.2015. It is3
further submitted that revisionist no. 1 is the husband of
informant's daughter, revisionist no. 2 is jeth who is handicapped
person, revisionist nos. 4 and 5 are father-in-law and mother-inlaw
respectively, who are old persons and revisionist no. 3 is
devar who is unemployed. Revisionists have no concern with the
present case but opposite party no. 2 falsely implicated to them
only for harassment in this case. Earlier, revisionists have filed a
Criminal Misc. Application (under Section 482 Cr.P.C.) No. 37202
of 2016 (Satendra Kumar Mishra and others Vs. State of U.P. and
another) before this Hon'ble Court which has been dismissed as
withdrawn with liberty to file criminal revision on 17.12.2016. It is
further submitted that revisionists have moved the discharge
application which was rejected on 8.11.2016 by learned Additional
Sessions' Judge/ Special Judge (P.C. Act), Court no. 4, DistrictGorakhpur,
which is illegal, unjust and unsustainable in the eye of
law and the same is liable to be quashed by the Hon'ble Court. It
is also submitted that victim is short tempered lady and after
some time of the marriage, she started quarelling with the
revisionists and she made pressure upon her husband for living
separately but the revisionist no. 1 refused the same due to which
she became annoyed and herself taken some tablet. Revisionists
took her to hospital for saving her life but informant illegally
lodged the present FIR against the revisionists only for
harassment. Revisionists neither tortured the victim for demand of
dowry nor they have committed any such type of offence as
alleged in the FIR, hence the offence under Section 498-A, 328,
323, 504 I.P.C., and Section 3/4 Dowry Prohibition Act is not
made out against the revisionists.
Per Contra, learned Additonal Government Advocate and
learned counsel for opposite party no. 2 contend that there is
sufficient material to proceed in this case against the revisionists.4
The Trial Court after considering the entire material found that
there is sufficient material to proceed further, therefore, the
discharge application was rejected by a speaking order. It is also
contended that the purpose of framing a charge is to give
intimation to the accused of clear, unambiguous and precise
notice of the nature of accusation that the accused is called upon
to meet in the course of a trial.
Before adverting to the claim of the parties, it is useful to
refer to sections 227 and 228 of the Code of Criminal Procedure,
which are reproduced below:
Discharge.
“227. 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."
Framing of charge.
228. (1) If after such consideration and hearing as
aforesaid, the Judge is of opinion that there is ground
for presuming that the accused has committed an
offence which-
(a) is not exclusively triable by the court of
Session, he may, frame a charge against the accused
and, by order, transfer the case for trial to the Chief
Judicial Magistrate or any other Judicial magistrate of
the first class and direct the accused to appear before
the Chief Judicial Magistrate, or, as the case may be,
the Judicial Magistrate of first class, on such date as
he deems fit, and thereupon such Magistrate shall try
the offence in accordance with the procedure for the
trial of warrant-cases in accordance with the
procedure for the trial of warrant cases instituted on a
police report;
(b) is exclusively triable by the Court, he shall
frame in writing a charge against the accused.Where
the Judge frame any charge under clause (b) of subsection
(1) the charge shall be read and explained to
the accused and the accused shall be asked whether
he pleads guilty of the offence charged or claims to
be tried."
Relative scope of sections 227 and 228 of the Code was
noticed and considered by the Hon'ble Supreme Court in Amit
Kapoor Vs. Ramesh Chander and another, (2012) 9 SCC 460.
The Hon'ble Supreme Court held as under:
"17. Framing of a charge is an exercise of jurisdiction
by the trial court in terms of Section 228 of the code,
unless the accused is discharged under section 227
of the Code. Under both these provisions, the Court
is required to consider the "record of the case" and
documents submitted therewith and, after hearing the
parties, may either discharge the accused or where it
appears to the court and in its opinion there is ground
for presuming that the accused has committed an
offence, it shall frame the charge. Once the facts and
ingrediants of the section exists, then the court would
be right in presuming that there is ground to proceed
against the accused and frame the charge
accordingly. This presumption is not a presumption of
law as such. The satisfaction of the court in relation
to the existence of constituents of an offence and the
facts leading to that offence is a sine quo non for
exercise of such jurisdiction. It may even be weaker
than a prima facie case. There is a fine distinction
between the language of sections 227 and 228 of the
Code. Section 227 is the expression of a definite
opinion and judgement of the court while section 228
is tentative. Thus, to say that at the stage of framing
of charge, the Court should form an opinion that the
accused is certainly guilty of committing an offence,
is an approach which is impermissible in terms of
Section 228 of the Code."
"19. At the initial stage of framing of a charge, the
court is concerned not with proof, but with a strong
suspicion that the accused has committed an
offence, which, if put to trial, could prove him guilty.
All that the court has to see is that the material on
record and the facts would be compatible with the
innocence of the accused or not. The final test of guilt
is not to be applied at that stage."
In the case of Onkar Nath Mishra and others Vs. State
(NCT of Delhi) and another (2008) 2 SCC 561, the Hon'ble Apex
Court in paragraph 11 of the judgement held as under:
"It is trite that at the stage of framing of charge the
court is required to evaluate the material and
documents on record with a view to finding out if the
facts emerging therefrom, taken at their face value,
disclosed the existence of all the ingredients
constituting the alleged offence. At that stage the
court is not expected to go deep into the probative
value of the material on record. What needs to be
considered is whether there is a ground for
presuming that the offence has been committed and
not a ground for convicting the accused has been
made out. At that stage, even strong suspicion
founded on material which leads the court to form a
presumptive opinion as to the existence of the factual
ingredients constituting the offence alleged would
justify the framing of charge against the accused in
respect of the commission of that offence."
A three Judges Bench of Hon'ble Supreme Court in the
case of State of Maharashtra Vs. Som Nath Thapa, (1996) 4
SCC 659 after noting three pairs of sections viz. (i) Sections 227
and 228 insofar as sessions trial is concerned (ii) Sections 239
and 240 relatable to trial of warrant cases, and (iii) Sections
245(1) and (2) qua trial of summons cases, which dealt with the
question of framing of charge or discharge, stated thus:
"32 ............. If on the basis of materials on record, a
court could come to the conclusion that commission
of the offence is a probable consequence, a case for
framing of charge exists. To put it differently, if the
courts were to think that the accused might have
committed the offence it can frame the charge,
though for conviction the conclusion is required to be
that the accused has committed the offence. It is
apparent that at the staage of framing of a charge,
probative value of the materials on record cannot be
gone into, the materials brought on record by the
prosecution has to be accepted as true at that
stage."
In State of M.P. Vs. Mohanlal Soni, (2000) 6 SCC 338, the
Hon'ble Supreme court held in paragraph 7 as under:
" 7.The crystallised judicial view is that at the stage of
framing charge, the court has to prima facie consider
whether there is sufficient ground for proceeding
against the accused. The court is not required to
appreciate evidence to conclude whether the
materials produced are sufficient or not for convicting
the accused."
In the case of State of Orissa Vs. Debendra Nath Padhi,
(2005)1 SCC 568, Hon'ble Supreme court while considering the
question whether the trial court can at the time of framing of
charges consider the material filed by the accused, answered in
negative in following words:
"18. We are unable to accept the aforesaid
contention.The reliance on Articles 14 and 21 is
misplaced...... Further, at the stage of framing of
charge roving and fishing inquiry is impermissible. If
the contention of the accused is accepted, there
would be a mini-trial at the stage of framing of
charge. That would defeat the object of the Code. It
is well settled that at the stage of framing of charge
the defence of the accused cannot be put forth. The
acceptance of the contention of the learned counsel
for the accused would mean permitting the accused
to adduce his defence at the stage of framing of
charge and for examination thereof at that stage
which is against the criminal jurisprudence. By way
of illustration it may be noted that the plea of alibi
taken by the accused may have to be examined at
the stage of framing of charge if the contention of the
accused is accepted despite the well settled
proposition that it is for the accused to lead evidence
at the trial to sustain such a plea. The accused
would be entitled to produce materials and
documents in proof of such a plea at the stage of
framing of the charge, in case we accept the
contention put forth on behalf of the accused. That
has never been the intention of the law well settled
for over one hundred years now. It is in this light that
the provision about hearing the submissions of the
accused as postulated by Section 227 is to be
understood. It is only means hearing the
submissions of the accused on the record of the
case as filed by the prosecution and documents
submitted therewith and nothing more. The
expression"hearing the submissions of the accused"
cannot mean opportunity to file material to be
granted to the accused and thereby changing the
settled law. At the stage of framing of charge hearing
the submissions of the accused has to be confined
to the material produced by the police."
In Union of India Vs. Prafulla Kumar Samal, (1979)3
SCC 4, the scope of section 227 Cr.P.C. was considered and
after adverting to various decisions, the Hon'ble Supreme court
has enumerated the following principles:
"(1) That the Judges while considering the question of
framing the charges under section 227 of the code has the
undoubted power to sift 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 discloses
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
depends upon the facts of each case and it is difficult to lay down
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 discharage the accused.
(4) That in exercising his jurisdiction under section 227 of
the Code the Judge which under the present Code a senior and
experienced cannot act merely as a post office or a mouthpiece
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 infirmitites 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."
Hon'ble Supreme Court in Sajjan Kumar Vs. Central
Bureau of Investigation, (2010)9 SCC, held in paragraph 24 of
the judgement as under:
"At the stage of framing of charge under section 228
Cr.P.C. or while considering the discharge petition
filed under Section 227, it is not for the Magistrate or
the Judge concerned to analyze all the materials
including pros and cons, reliability or acceptability,11
etc. It is at the trial, the Judge concerned has to
appreciate their evidentiary value, credibility or
otherwise of the statement, veracity of various
documents and is free to take a decision one way or
the other."
In Sheoraj Singh Ahlawat and others Vs. State of Uttar
Pradesh and another, (2013)11 SCC 476, Hon'ble Apex Court
after citing the catena of judgements has summorised the
principles in respect of framing of charges or discharge of the
accused and held as under:
"While framing charges, court is required to evaluate
materials and documents on record to decide
whether facts emerging therefrom taken at their face
value would disclose existence of ingredients
constituting the alleged offence. At this stage, the
court is not required to go deep into probative value
of materials on record. It needs to evaluate whether
there is a ground for presuming that accused had
committed offence. But it should not evaluate
sufficiency of evidence to convict accused. Even if,
there is a grave suspicion against the accused and it
is not properly explained or court feels that accused
might have committed offence, then framing of
charge against the accused is justified. It is only for
conviction of accused that materials must indicate
that accused had committed offence but for framing
of charges if materials indicate that accused might
have committed offence, then framing of charge is
proper. Materials brought on by prosecution must be
believed to be true and their probative value cannot
be decided at this stage. The accused entitled to12
urge his contentions only on materials submitted by
prosecution. He is not entitled to produce any
material at this stage and the court is not required to
consider any such material, if submitted. Whether the
prima facie case made out depends upon fact and
circumstances of each case. If two views are
possible and materials indicate mere suspicion, not
being grave suspicion, against accused then he may
be discharged. The court has to consider broad
probabilities of case, total effect of evidence and
documents produced before it.The court should not
act as mouthpiece of prosecution and it is
impermissible to have roving enquiry at the stage of
framing of charges."
In the case in hand, the allegation is that marriage of the
victim was solemnized with the revisionist no. 1 Satendra Kumar
Mishra on 15.2.2006 and from the very inception of the marriage,
the husband and in-laws used to torture her by raising of demand
of dowry of one car and Rs. 5 lakhs. The matter was settled but
after sometime, they againt started to beat her with cruelty and
also ousted her from their house. There was also allegation that
some poision was administered to the victim and she got
admitted in the hospital. The allegation are substantiated by the
evidence making prima facie case to proceed against the
revisionists. Whether or not those allegation are true is a matter
which cannot be determined at the stage of framing of charges.
Any such determination can take place only at the conclusion of
the trial. This may at times put an innocent party, falsely accused
of commission of an offence to avoidable harassment but so long
as the legal requirement and the settled principles do not permit a
discharge, the Court would find it difficult to do much, conceding
that legal process at times is abused by unscrupulous litigants
especially in matrimonial cases where the tendency has been to
involve as many members of the family of the opposite party as
possible.
Having considered the legality, propriety and correctness of
the order, impugned order does not suffer from any illegality or
infirmity.
The revision is accordingly dismissed.
Order Date :- 31.5.2017
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