CASE NO.: Appeal (crl.) 497 of 2001 PETITIONER: State of Orissa RESPONDENT: Debendra Nath Padhi DATE OF JUDGMENT: 29/11/2004 BENCH: Y.K. Sabharwal, D.M. Dharmadhikari & Tarun Chatterjee JUDGMENT:
J U D G M E N T
[With SLP (Crl.) No.1912 of 2003 and Crl.A.No.46 of 2004]
Y.K.Sabharwal, J.
Can the trial court at the time of framing of charge consider material
filed by the accused, is the point for determination in these matters.
In Satish Mehra v. Delhi Administration and Another [(1996) 9
SCC 766], a two judge Bench judgment, it was observed that if the
accused succeeds in producing any reliable material at the stage of taking
cognizance or framing of charge which might fatally affect even the very
sustainability of the case, it is unjust to suggest that no such material
should be looked into by the court at that stage. It was held that the object
of providing an opportunity to the accused of making submissions as
envisaged in Section 227 of the Code of Criminal Procedure, 1973 (for
short, ‘the Code’) is to enable the court to decide whether it is necessary to
proceed to conduct the trial. If the materials produced by the accused
even at that early stage would clinch the issue, why should the court shut it
out saying that such documents need be produced only after wasting a lot
more time in the name of trial proceedings. It was further observed that
there is nothing in the Code which shrinks the scope of such audience to
oral arguments and, therefore, the trial court would be within its power to
consider even material which the accused may produce at the stage
contemplated in Section 227 of the Code.
When the arguments in the present case were heard by a two-judge
Bench, considering various decisions including three-judge Bench
decisions in Superindent and Remembrancer of legal Affairs, West
Bengal v. Anil Kumar Bhunja and Others [ (1979) 4 SCC 274 ] and
State of Bihar v. Ramesh Singh [ (1977) 4 SCC 39 ] it was observed
that at the time of framing a charge the trial court can consider only the
material placed before it by the investigating agency, there being no
requirement in law for the court to grant at that stage either an opportunity
to the accused to produce evidence in defence or consider such evidence
the defence may produce at that stage. But having regard to the views
expressed in Satish Mehra’s case (supra) it was directed that the matter
should be referred to a larger Bench. The order referring the matter to
larger Bench is reported in State of Orissa v. Debendra Nath Padhi
[(2003) 2 SCC 711]. Accordingly, these matters have been placed before
us to determine the question above-noticed.
The views expressed in Satish Mehra’s case (supra) have been
strongly supported by learned counsel for the accused on the ground of
justice, equity and fairness and also on the touchstone of Article 21 of the
Constitution of India contending that reversal of that view would lead to
unnecessary harassment to the accused by having to face the trial for
years, waste of valuable time of the court, heavy cost, despite the fact that
even at the early stage of framing of charge or taking cognizance the
accused is in a position to produce unimpeachable material of sterling
quality to clinchingly show that there is no prospect of conviction at the
conclusion of the trial. Satish Mehra’s case was further supported on
interpretation of Sections 227 and 239 of the Code.
On the other hand, it was contended on behalf of the State that the
observations made in Satish Mehra’s case run counter to the views
expressed by this court in large number of decisions, it amounts to
upsetting well settled legal propositions and making nugatory amendments
made in Code of Criminal Procedure from time to time and would result in
conducting a mini trial at the stage of framing of charge or taking
cognizance. Such a course would not only be contrary to the object and
the scheme of the Code but would also result in total wastage of the court
time because of conducting of two trials, one at the stage of framing
charge and the other after the charge is framed. It was contended that on
true construction of Section 227 of the Code only the material sent by
prosecution along with the record of the case and the documents sent
along with it can be considered by the trial court at the time of framing of
the charge. The accused at that stage has no right to place before the
court any material.
At the stage of framing charge, the trial court is required to consider
whether there are sufficient grounds to proceed against the accused.
Section 227 of the Code provides for the eventuality when the accused
shall be discharged. If not discharged, the charge against the accused is
required to be framed under Section 228. These two sections read as
under:
“Section 227 of Cr.PC.
DischargeIf, 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 the proceeding against the accused,
he shall discharge the accused and record his
reasons for so doing.
Section 228 of Cr.PC
Framing of charge (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, and thereupon
the Chief Judicial Magistrate shall try the offence
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.
(2) Where the Judge frames any charge under
clause (b) of sub-section (1), the charge shall be
read and explained to the accused and the
accused shall be asked whether he pleads guilty
of the offence or claims to be tried.”
Similarly, in respect of warrant cases triable by Magistrates,
instituted on a police report, Sections 239 and 240 of the Code are the
relevant statutory provisions. Section 239 requires the Magistrate to
consider ‘the police report and the documents sent with it under Section
173’ and, if necessary, examine the accused and after giving accused an
opportunity of being heard, if the Magistrate considers the charge against
the accused to be groundless, the accused is liable to be discharged by
recording reasons thereof.
What is to the meaning of the expression ‘the record of the case’ as
used in Section 227 of the Code. Though the word ‘case’ is not defined in
the Code but Section 209 throws light on the interpretation to be placed on
the said word. Section 209 which deals with the commitment of case to
Court of Session when offence is triable exclusively by it, inter alia,
provides that when it appears to the Magistrate that the offence is triable
exclusively by the Court of Session, he shall commit ‘the case’ to the Court
of Session and send to that court ‘the record of the case’ and the
document and articles, if any, which are to be produced in evidence and
notify the Public Prosecutor of the commitment of the case to the Court of
Session. It is evident that the record of the case and documents submitted
therewith as postulated in Section 227 relate to the case and the
documents referred in Section 209. That is the plain meaning of Section
227 read with Section 209 of the Code. No provision in the Code grants to
the accused any right to file any material or document at the stage of
framing of charge. That right is granted only at the stage of the trial.
Further, the scheme of the Code when examined in the light of the
provisions of the old code of 1898, makes the position more clear. In the
old code, there was no provision similar to Section 227. Section 227 was
incorporated in the Code with a view to save the accused from prolonged
harassment which is a necessary concomitant of a protracted criminal trial.
It is calculated to eliminate harassment to accused persons when the
evidential materials gathered after investigation fall short of minimum legal
requirements. If the evidence even if fully accepted cannot show that the
accused committed the offence, the accused deserves to be discharged.
In the old Code, the procedure as contained in Sections 207 and 207 (A)
was fairly lengthy. Section 207, inter alia, provided that the Magistrate,
where the case is exclusively triable by a Court of Session in any
proceedings instituted on a police report, shall follow the procedure
specified in Sectioin 207 (A). Under Section 207 (A) in any proceeding
instituted on a police report the Magistrate was required to hold inquiry in
terms provided under sub-section (1), to take evidence as provided in sub-
section (4), the accused could cross-examine and the prosecution could
re-examine the witnesses as provided in sub-section (5), discharge the
accused if in the opinion of the Magistrate the evidence and documents
disclosed no grounds for committing him for trial, as provided in sub-
section (6) and to commit the accused for trial after framing of charge as
provided in sub-section (7), summon the witnesses of the accused to
appear before the court to which he has been committed as provided in
sub-section (11) and send the record of the inquiry and any weapon or
other thing which is to be produced in evidence, to the Court of Session as
provided in sub-section (14). The aforesaid Sections 207 and 207(A) have
been omitted from the Code and a new Section 209 enacted on the
recommendation of the Law Commission contained in its 41st Report. It
was realised that the commitment inquiry under the old Code was resulting
in inordinate delay and served no useful purpose. That inquiry has,
therefore, been dispensed with in the Code with the object of expeditious
disposal of cases. Instead of committal Magistrate framing the charge, it is
now to be framed by Court of Session under Section 228 in case the
accused is not discharged under Section 227. This change brought out in
the code is also required to be kept in view while determining the question.
Under the Code, the evidence can be taken only after framing of charge.
Now, let us examine the decisions which have a bearing on the point
in issue.
In State of Bihar v. Ramesh Singh [ (1977) 4 SCC 39 ] considering
the scope of Sections 227 and 228 of the Code, it was held that at the
stage of framing of charge it is not obligatory for the Judge 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. 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, at the initial stage of framing of charge, is
sufficient to frame the charge and in that event it is not open to say that
there is no sufficient ground for proceeding against the accused.
In Superintendant and Remembrancer of legal Affairs, West
Bengal v. Anil Kumar Bhunja and Others [(1980) 1 SCR 323] a three-
judge Bench held that the Magistrate at the stage of framing charges had
to see whether the facts alleged and sought to be proved by the
prosecution prima facie disclose the commission of offence on general
consideration of the materials placed before him by the investigating police
officer (emphasis supplied). Though in this case the specific question
whether an accused at the stage of framing of charge has a right to
produce any material was not considered as such, but that seems implicit
when it was held that the Magistrate had to consider material placed
before it by the investigating police officer.
In State of Delhi v. Gyan Devi and Others [(2000) 8 SCC 239]
this Court reiterated that at the stage of framing of charge the trial court is
not to examine and assess in detail the materials placed on record by the
proseuction nor is it for the court to consider the sufficiency of the materials
to establish the offence alleged against the accused persons.
In State of Madhya Pradesh v. S.B.Johari and Others [(2000) 2
SCC 57] it was held that the charge can be quashed if the evidence which
the prosecutor proposes to adduce to prove the guilt of the accused, even
if fully accepted, cannot show that the accused committed the particular
offence. In that case, there would be no sufficient ground for proceeding
with the trial.
In State of Maharashtra v. Priya Sharan Maharaj and Others
[(1997) 4 SCC 393] it was held that at Sections 227 and 228 stage 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
disclose the existence of all the ingredients constituting the alleged
offence. The court may, for this limited purpose, sift the evidence as it
cannot be expected even at that initial stage to accept all that the
prosecution states as gospel truth even if it is opposed to common sense
or the broad probabilities of the case.
All the decisions, when they hold that there can only be limited
evaluation of materials and documents on record and sifting of evidence
to prima facie find out whether sufficient ground exists or not for the
purpose of proceeding further with the trial, have so held with reference to
materials and documents produced by the prosecution and not the
accused. The decisions proceed on the basis of settled legal position that
the material as produced by the prosecution alone is to be considered and
not the one produced by the accused. The latter aspect relating to the
accused though has not been specifically stated, yet it is implicit in the
decisions. It seems to have not been specifically so stated as it was taken
to be well settled proposition. This aspect, however, has been adverted to
in State Anti-Corruption Bureau, Hyderabad and Another v. P.
Suryaprakasam [1999 SCC (Crl.) 373] where considering the scope of
Sections 239 and 240 of the Code it was held that at the time of framing of
charge, what the trial court is required to, and can consider are only the
police report referred to under Section 173 of the Code and the documents
sent with it. The only right the accused has at that stage is of being heard
and nothing beyond that (emphasis supplied). The judgment of the High
Court quashing the proceedings by looking into the documents filed by the
accused in support of his claim that no case was made out against him
even before the trial had commenced was reversed by this Court. It may
be noticed here that learned counsel for the parties addressed the
arguments on the basis that the principles applicable would be same
whether the case be under Sections 227 and 228 or under Sections 239
and 240 of the Code.
As opposed to the aforesaid legal position, the learned counsel
appearing for the accused contended that the procedure which deprives
the accused to seek discharge at the initial stage by filing unimpeachable
and unassailable material of sterling quality would be illegal and violative of
Article 21 of the Constitution since that would result in the accused having
to face the trial for long number of years despite the fact that he is liable to
be discharged if granted an opportunity to produce the material and on
perusal thereof by the court. The contention is that such an interpretation
of Sections 227 and 239 of the Code would run the risk of those provisions
being declared ultra vires of Articles 14 and 21 of the Constitution and to
save the said provisions from being declared ultra vires, the reasonable
interpretation to be placed thereupon is the one which gives a right,
howsoever, limited that right may be, to the accused to produce
unimpeachable and unassailable material to show his innocence at the
stage of framing charge.
We are unable to accept the aforesaid contention. The reliance on
Articles 14 and 21 is misplaced. The scheme of the Code and object with
which Section 227 was incorporated and Sections 207 and 207 (A) omitted
have already been noticed. 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 submssions of the accused as postulated by Section 227 is to be
understood. It 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 state of framing of
charge hearing the submissions of the accused has to be confined to the
material produced by the police.
It may also be noted that, in fact, in one of the cases under
consideration (SLP No.1912) the plea of alibi has been taken by the
accused in a case under Section 302 read with other provisions of the
Indian Penal Code. We may also note that the decisions cited by learned
counsel for the accused where the prosecutions under the Income Tax Act
have been quashed as a result of findings in the departmental appeals
have no relevance for considering the question involved in these matters.
Reliance placed on behalf of the accused on some observations
made in Minakshi Bala v. Sudhir Kumar and Others [(1994) 4 SCC 142]
to the effect that in exceptional cases the High Court can look into only
those documents which are unimpeachable and can be legally translated
into relevant evidence is misplaced for the purpose of considering the point
in issue in these matters. If para 7 of the judgment where these
observations have been made is read as a whole, it would be clear that the
judgment instead of supporting the contention sought to be put forth on
behalf of the accused, in fact, supports the prosecution. Para 7 of the
aforesaid case reads as under:-
“If charges are framed in accordance with
Section 240 CrPC on a finding that a prima case
has been made out – as has been done in the
instant case – the persons arraigned may, if he
feels aggrieved, invoke the revisional jurisdiction
of the High Court or the Sessions Judge to
contend that the charge-sheet submitted under
Section 173 CrPC and documents sent with it did
not disclose any ground to presume that he had
committed any offence for which he is charged
and the revisional court if so satisfied can quash
the charges framed against him. To put it
differently, once charges are framed under
Sections 240 CrPC the High Court in its revisional
jurisdiction would not be justified in relying upon
documents other than those referred to in
Sections 239 and 240 CrPC; nor would it be
justified in invoking its inherent jurisdiction under
section 482 CrPC to quash the same except in
those rare cases where forensic exigencies and
formidable compulsions justify such a course. We
hasten to add even in such exceptional cases the
High Court can look into only those documents
which are unimpeachable and can be legally
translated into relevant evidence.”
It is evident from the above that this Court was considering the rare
and exceptional cases where the High Court may consider unimpeachable
evidence while exercising jurisdiction for quashing under Section 482 of
the Code. In the present case, however, the question involved is not about
the exercise of jurisdiction under Section 482 of the Code where along with
the petition the accused may file unimpeachable evidence of sterling
quality and on that basis seek quashing, but is about the right claimed by
the accused to produce material at the stage of framing of charge.
Reliance has also been placed on decision in the case of P.S.Rajya
v. State of Bihar [(1996) 9 SCC 1] where this court rejected the
contention urged on behalf of the State that the points on which the
accused was seeking quashing of criminal proceedings could be
established by giving evidence at appropriate time and no case had been
made out for quashing the charge itself. The charge was quashed by this
Court. In this case too only on peculiar facts of the case, this Court came
to the conclusion that the criminal proceedings initiated against the
appellant-accused could not be pursued. Those peculiar facts have been
noticed in paragraphs 14, 17, 18 and 19 of the decision. The contention of
the accused based on those peculiar facts has been noticed in para 15
and that of respondent that the CBI was entitled to proceed on the basis of
the material available and the mere allegations made by the accused
cannot take the place of proof and that had to be gone into and established
in the final hearing, has been noticed in para 16. After noticing those
contentions and the decision in the case of State of Haryana v. Bhajan
Lal [1992 (Suppl.1) 335] laying down the guidelines relating to the
exercise of extraordinary power under Article 226 or the inherent power
under Section 482 of the Code for quashing an FIR or a complaint, this
Court, on the peculiar facts, came to the conclusion that the case of the
appellant could be brought under more than one head given in Bhajan
Lal’s case (supra) without any difficulty so as to quash the proceedings.
In this background, observations were made in para 23 on which reliance
has been placed on behalf of the accused whereby rejecting the contention
of the State as noticed in para 16, the Court came to the conclusion that
the criminal proceedings deserve to be quashed. In this case too the
question was not about the right of the accused to file material at the stage
of framing charge but was about quashing of proceedings in exercise of
power under Section 482 of the Code. The decision in the case of State
of Madhya Pradesh v. MohanLal Soni [(2000) 6 SCC 338] sought to be
relied upon on behalf of the accused is also of no assistance because in
that case an earlier order of the High Court wherein trial court was directed
to take into consideration the documents made available by the accused
during investigation while framing charge had attained finality since that
order was not challenged and in that view this Court came to the
conclusion that the trial court was bound and governed by the said
direction of the High Court which had not been followed.
As a result of aforesaid discussion, in our view, clearly the law is that
at the time of framing charge or taking cognizance the accused has no
right to produce any material. Satish Mehra’s case holding that the trial
court has powers to consider even materials which accused may produce
at the stage of Section 227 of the Code has not been correctly decided.
On behalf of the accused a contention about production of
documents relying upon Section 91 of the Code has also been made.
Section 91 of the Code reads as under:
“Summons to produce document or other
thing.(1) Whenever any Court or any officer in
charge of a police station considers that the
production of any document or other thing is
necessary or desirable for the purposes of any
investigation, inquiry, trial or other proceeding
under this Code by or before such Court or
officer, such Court may issue a summons, or
such officer a written order, to the person in
whose possession or power such document or
thing is believed to be, requiring him to attend and
produce it, or to produce it, at the time and place
stated in the summons or order.
(2)…………………………………………………………………
(3)…………………………………………………………………”
Any document or other thing envisaged under the aforesaid
provision can be ordered to be produced on finding that the same is
‘necessary or desirable for the purpose of investigation, inquiry, trial or
other proceedings under the Code’. The first and foremost requirement of
the section is about the document being necessary or desirable. The
necessity or desirability would have to be seen with reference to the stage
when a prayer is made for the production. If any document is necessary or
desirable for the defence of the accused, the question of invoking Section
91 at the initial stage of framing of a charge would not arise since defence
of the accused is not relevant at that stage. When the section refers to
investigation, inquiry, trial or other proceedings, it is to be borne in mind
that under the section a police officer may move the Court for summoning
and production of a document as may be necessary at any of the stages
mentioned in the section. In so far as the accused is concerned, his
entitlement to seek order under Section 91 would ordinarily not come till
the stage of defence. When the section talks of the document being
necessary and desirable, it is implicit that necessity and desirability is to be
examined considering the stage when such a prayer for summoning and
production is made and the party who makes it whether police or accused.
If under Section 227 what is necessary and relevant is only the record
produced in terms of Section 173 of the Code, the accused cannot at that
stage invoke Section 91 to seek production of any document to show his
innocence. Under Section 91 summons for production of document can be
issued by Court and under a written order an officer in charge of police
station can also direct production thereof. Section 91 does not confer any
right on the accused to produce document in his possession to prove his
defence. Section 91 presupposes that when the document is not produced
process may be initiated to compel production thereof.
Reliance on behalf of the accused was placed on some observations
made in the case of Om Parkash Sharma v. CBI, Delhi [(2000) 5 SCC
679]. In that case the application filed by the accused for summoning and
production of documents was rejected by the Special Judge and that order
was affirmed by the High Court. Challenging those orders before this
Court, reliance was placed on behalf of the accused upon Satish Mehra’s
case (supra). The contentions based on Satish Mehra’s case have been
noticed in para 4 as under:
“The learned counsel for the appellant reiterated
the stand taken before the courts below with great
vehemence by inviting our attention to the
decision of this Court reported in Satish Mehra v.
Delhi Admn. ((1996) 9 SCC 766) laying emphasis
on the fact the very learned Judge in the High
Court has taken a different view in such matters,
in the decision reported in Ashok Kaushik v. State
((1999) 49 DRJ 202). Mr Altaf Ahmed, the learned
ASG for the respondents not only contended that
the decisions relied upon for the appellants would
not justify the claim of the appellant in this case,
at this stage, but also invited, extensively our
attention to the exercise undertaken by the courts
below to find out the relevance, desirability and
necessity of those documents as well as the need
for issuing any such directions as claimed at that
stage and consequently there was no justification
whatsoever, to intervene by an interference at the
present stage of the proceedings.
In so far as Section 91 is concerned, it was rightly held that the width
of the powers of that section was unlimited but there were inbuilt inherent
limitations as to the stage or point of time of its exercise, commensurately
with the nature of proceedings as also the compulsions of necessity and
desirability, to fulfill the task or achieve the object. Before the trial court the
stage was to find out whether there was sufficient ground for proceeding to
the next stage against the accused. The application filed by the accused
under Section 91 of the Code for summoning and production of document
was dismissed and order was upheld by High Court and this Court. But
observations were made in para 6 to the effect that if the accused could
produce any reliable material even at that stage which might totally affect
even the very sustainability of the case, a refusal to look into the material
so produced may result in injustice, apart from averting an exercise in
futility at the expense of valuable judicial/public time, these observations
are clearly obiter dicta and in any case of no consequence in view of
conclusion reached by us hereinbefore. Further, the observations cannot
be understood to mean that the accused has a right to produce any
document at stage of framing of charge having regard to the clear mandate
of Sections 227 and 228 in Chapter 18 and Sections 239 and 240 in
Chapter 19.
We are of the view that jurisdiction under Section 91 of the Code
when invoked by accused the necessity and desirability would have to be
seen by the Court in the context of the purpose investigation, inquiry, trial
or other proceedings under the Code. It would also have to be borne in
mind that law does not permit a roving or fishing inquiry.
Regarding the argument of accused having to face the trial despite
being in a position to produce material of unimpeachable character of
sterling quality, the width of the powers of the High Court under Section
482 of the Code and Article 226 of Constitution of India is unlimited
whereunder in the interests of justice the High Court can make such orders
as may be necessary to prevent abuse of the process of any Court or
otherwise to secure the ends of justice within the parameters laid down in
Bhajan Lal’s case.
The result of the aforesaid discussion is that Criminal Appeal No.497
of 2001 is allowed, the impugned judgment of the High Court is set aside.
The trial court is directed to proceed from the stage of framing of charge.
Having regard to the fact that the charges were framed about 11 years ago
we direct the trial court to expeditiously conclude the trial and as far as
possible it shall be held from day-to-day.
Special Leave Petition (Crl.) No.1912 of 2003 and Criminal Appeal
No.46 of 2004 are dismissed. Since Special Leave Petition relates to an
occurrence which took about 3 years back and the offence is under
Section 302 Indian Penal Code and in Criminal Appeal No.46 of 2004
charges were framed about 2 years ago, we direct that the trial in these
cases shall also be concluded expeditiously. All the appeals are disposed
of accordingly.
