//
you're reading...
legal issues

Sec.226,227 and 228 of Cr.P.C.- one out of 3 no charge sheet was filed under sec.302 I.P.C. – but committal court famed charge under sec.302 of I.P.C against this accused too – challanged – high court dismissed the writ for quashing – Apex court held that In this case, it is not alleged that the Sessions Judge has not followed Sections 226 and 227 Cr.P.C before framing the charge. Further, it is not the case of the appellant that the court has not given him hearing at the stage of discharge u/s 227 Cr.P.C. For framing of charge u/s 228, the judge is not required to record detail reasons as to why such charge is framed. On perusal of record and hearing the parties at the stage of discharge u/s 227 Cr.P.C. if the Judge is of opinion that there is ground for presuming that the accused has committed an offence, he is competent to frame charge for such offence even if not mentioned in the charge sheet. We find no merit in this appeal.= DINESH TIWARI … APPELLANT Versus STATE OF UTTAR PRADESH & ANR. … RESPONDENTS = 2014 – July. Part – http://judis.nic.in/supremecourt/filename=41750

Sec.226,227 and 228 of Cr.P.C.- one out of 3 no charge sheet was filed under sec.302 I.P.C. – but committal court  famed charge under sec.302 of I.P.C against this accused too – challanged – high court dismissed the writ for quashing – Apex court held that In this case, it is not  alleged  that  the  Sessions  Judge  has  not followed Sections 226 and 227 Cr.P.C before framing the charge. Further,  it is not the case of the appellant that the court has not  given  him  hearing at the stage of discharge u/s 227 Cr.P.C. For framing  of  charge  u/s  228, the judge is not required to record detail reasons as to why such charge  is framed. On perusal of record  and  hearing  the  parties  at  the  stage  of discharge u/s 227 Cr.P.C. if the Judge is of opinion that  there  is  ground for presuming that the accused has committed an offence, he is competent  to frame charge for such offence even if not mentioned in the charge sheet.  We find no merit in this appeal.=

CBCID  submitted

charge sheet against Sadhu Saran Yadav co-accused for the offence  u/s  302,

323,  504  and  506  IPC. 

It  was  mentioned  in  the  charge  sheet   that

investigation shall continue against rest of the accused  persons.  The  CJM

took cognizance of the offence vide order dated 8th  May,  2006.

The  case

was committed to the Court of  Sessions  and  was  registered  as  S.T.  No.

149/2006 titled State v. Sadhu Saran Yadav.

Thereafter, CBCID submitted  the

charge sheet against Ram Vijay Yadav for the offence u/s 302, 323,  504  and

506 IPC and as against the appellant for the offence u/s 323,  504  and  506

IPC.  No charge sheet was submitted against the appellant  for  the  offence

u/s 302 IPC. 

The cognizance was taken by CJM on charge sheet no.5A  of  2006

on 23rd January, 2007.  Bail was granted to the appellant  for  the  offence

u/s 323, 504 and 506 IPC.

The case was committed to the Court  of  Sessions

by the CJM after taking cognizance and  the  Sessions  Court  framed  charge

against the appellant for the offence u/s 302 IPC, apart from  Section  323,

504 and 506 IPC.=

High court order 

The  aforesaid  order  was  challenged  by  the  appellant  by  filing

criminal miscellaneous application u/s 482 Cr.P.C. for  quashing  the  order

framing the charge u/s 302 IPC. The High  Court  by  impugned  judgment  and

order dated 11th December, 2007 dismissed the same.=

Apex court held that

We may refer to  the  well-settled

law laid down by this Court in State of Bihar v. Ramesh Singh: (SCC pp.  41-

42, para 4)

“4.  Under  Section  226  of  the  Code  while  opening  the  case  for  the

prosecution the Prosecutor has  got  to  describe  the  charge  against  the

accused and state by what evidence he proposes to prove  the  guilt  of  the

accused.

Thereafter comes at the initial stage the  duty  of  the  court  to

[pic]consider the record of the case and the documents  submitted  therewith

and to hear the submissions of the  accused  and  the  prosecution  in  that

behalf.

The Judge has to pass thereafter an order either under  Section  227

or Section 228 of the Code.

If  ‘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’,  as  enjoined  by  Section

227.

If, on the other hand, ‘the Judge is of opinion that  there  is  ground

for presuming that the accused has committed an  offence  which—  …  

(b)  is

exclusively triable by the  court,  he  shall  frame  in  writing  a  charge

against  the  accused’,  as  provided  in  Section  228.  

Reading  the   two

provisions 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 under Section 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. The presumption of the guilt of the accused which is  to  be  drawn

at the initial stage is not in the sense of the law governing the  trial  of

criminal cases in France where the accused is presumed to be  guilty  unless

the contrary is proved. But it is only for the  purpose  of  deciding  prima

facie whether the court should  proceed  with  the  trial  or  not.  If  the

evidence which the Prosecutor proposes to adduce to prove the guilt  of  the

accused even if fully accepted before it is challenged in  cross-examination

or rebutted by the defence evidence, if any, cannot show  that  the  accused

committed  the  offence,  then  there  will  be  no  sufficient  ground  for

proceeding with the trial.  An  exhaustive  list  of  the  circumstances  to

indicate as to what will lead to one conclusion  or  the  other  is  neither

possible nor advisable. We may just illustrate the difference of the law  by

one more example. If the scales of pan as to the guilt or innocence  of  the

accused are something like even at the conclusion of  the  trial,  then,  on

the theory of benefit of doubt the case is to end in his acquittal. But  if,

on the other hand, it is so at the initial stage of making  an  order  under

Section 227 or Section 228, then in such  a  [pic]situation  ordinarily  and

generally the order which will have to be made will  be  one  under  Section

228 and not under Section 227.”

11.   In this case, it is not  alleged  that  the  Sessions  Judge  has  not

followed Sections 226 and 227 Cr.P.C before framing the charge. Further,  it

is not the case of the appellant that the court has not  given  him  hearing

at the stage of discharge u/s 227 Cr.P.C. For framing  of  charge  u/s  228,

the judge is not required to record detail reasons as to why such charge  is

framed. On perusal of record  and  hearing  the  parties  at  the  stage  of

discharge u/s 227 Cr.P.C. if the Judge is of opinion that  there  is  ground

for presuming that the accused has committed an offence, he is competent  to

frame charge for such offence even if not mentioned in the charge sheet.  We

find no merit in this appeal. The appeal is accordingly dismissed.

2014 – July. Part – http://judis.nic.in/supremecourt/filename=41750

Advertisements

About advocatemmmohan

ADVOCATE

Discussion

Comments are closed.

Blog Stats

  • 1,621,647 hits

ADVOCATE MMMOHAN

archieves

Enter your email address to subscribe to this blog and receive notifications of new posts by email.

Join 1,843 other followers

Follow advocatemmmohan on WordPress.com