Himachal Pradesh High Court
Tara Dutt And Ors. Etc. vs State Of H.P. on 9 January, 1991
Equivalent citations: 1991CRILJ3339
ORDER V.K. Mehrotra, J.
1. The applicants in these Criminal Revisions Under Sections 397 and 401, Cr. P.C. are facing trial before Special Judge (Forests) Shimla in different criminal cases. Facts giving rise to these criminal revisions are similar. Those in the case of applicant Tara Datt may alone be noticed : The case of the applicants, accused persons in Corruption Trial No. 26-S/7 of 1987 registered as criminal case No. 14-S/7 of 1989 came up before the Special Judge, Shimla, on December 31, 1987. On that date the order passed by the learned Judge was :
"Office report seen Heard. Register. I have seen the reports and perused the documents appended with the challan and found that there are sufficient grounds to proceed against the accused. The accused persons be summoned for 22-3-1988.
Sd/-
Special Judge, Shimla."
The case came up before the Special Judge on several dates thereafter. Not much progress could be made for various reasons. However, the matter was heard on January 4, 1990, on the question whether charge deserved to be framed against the accused persons. The matter was heard the next day too when the Special Judge passed an order, which in its material part reads :
"5-1-1990 Present : Shri H.R. Thakur, P.P. for the State. All the accused persons with their Advocates, S/Shri N.S. Thakur, Yadupati Sood and P.N. Lau. I have heard the learned Public Prosecutor and the learned Advocates for the accused and have gone through the record. A prima facie case is made out Under Sections 120-B, 420, 468 of the Indian Penal Code and Section 5(2) of the Prevention of Corruption Act against all the accused. As such, charge be framed and the case be put up again in the afternoon for putting the charge.
Sd/-
Special Judge, Shimla.
Present : As before Charge framed, put and explained to the accused. All the accused have pleaded not guilty to the said charge. As such, the case be now put up for prosecution evidence on..............."
2. In these revision petitions the order of the Special Judge directing the framing of charge against the accused-applicants has been assailed. It has also been prayed that the order be set-aside and the accused-applicants be discharged or in the alternative powers Under Section 482, Cr. P.C. be exercised by this court.
3. Shri T.R. Chandel has appeared on behalf of the applicants. Shri K.C. Rana has appeared on behalf of the State of Himachal Pradesh.
4. The submission of Shri Chandel, who has presented the case on behalf of the applicants with ability, basically has been that the order of January 5, 1990, directing the framing of charge against the accused-applicants is liable to be set aside as it does not indicate that the Special Judge applied his mind to the relevant aspects of the matter before passing it. The order does not show that it was after due consideration of the material on record. Order directing the framing of a charge against a person affects such a person substantially and affects his personal liberty. It should, therefore, be a speaking order in the sense that it should disclose ex facie application of mind to the relevant material by the Court. The various facets of the submission would be noticed later.
5. The approach to be adopted by the Court, at the stage when it is considering the question whether the case is such where charge should be framed against an accused person or not, has been indicated by the Supreme Court in several decisions. The court is not required, at the stage of framing of charge, to consider the evidence and the material in a meticulous manner. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise is not exactly to be applied at this 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, that would be sufficient ground for proceeding against him further. It may proceed to frame charges against him. See State of Bihar v. Ramesh Singh, AIR 1977 SC 2018 : (1977 Cri LJ 1606); Mohd. Akbar Dar v. State of Jammu and Kashmir, AIR 1981 SC 1548 : (1981 Cri LJ 1135); and Radhey Shyam v. Kunj Behari AIR 1990 SC 121 : (1990 Cri LJ 668).
6. The Code of Criminal Procedure deals with the question of framing of charge in some of its provisions. The Trial before a Court of Session is governed by the provisions contained in Chapter XVIII, Section 226, contained therein, says that :
"When the accused appears or is brought before the Court in pursuance of a commitment of the case Under Section 209, the prosecutor shall open his case by describing, the charge brought against the accused and stating by what evidence he proposes to prove the guilt of the accused."
Section 227 (Discharge) then says :
"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."
Section 228 (Framing of charge) provides that :
"(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) ............................."
7. Chapter XIX deals with the trial of warrant cases by the Magistrate. Of the provisions, relevant for our purposes, in this Chapter, Section 238 says that :
"When, in any warrant case instituted on a police report, the accused appears or is brought before a Magistrate at the commencement of the trial, the Magistrate shall satisfy himself that he has complied with the provisions of Section 207."
Sections 239 and 240 then say :
"239. When accused shall be discharged --If, upon considering the police report and the documents sent with it under Section 175 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing."
"240. Framing of charge.-- (1) If upon such consideration, examination, if any, and hearing the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try and which, in his opinion could be adequately punished by him, he shall frame in writing a charge against the accused.
(2) ............................"
8. Section 211, occurring in Chapter. XVII, deals with the contents of charge. Sub-section (5) of this Section says that :
"(5) The fact that the charge is made is equivalent to the statement that every legal condition required by law to constitute the offence charged was fulfilled in the particular case."
9. A Magistrate may take cognizance of an offence on a complaint. The procedure to be followed by the Magistrate in that case is provided in Chapter XV. Section 200, occurring in that Chapter, contemplates an examination of the complainant on oath (except in cases contemplated by the proviso) and of the witnesses present, if any. The Magistrate is empowered to postpone issuance of process to the accused person and get an inquiry made in accordance with Section 202. Section 203 (Dismissal of complaint) provides that :
"If, after considering the statement on oath (if any) of the complainant and of the witnesses and the result of the inquiry or investigation (if any) Under Section 202, the Magistrate is of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in every such case he shall briefly record his reasons for so doing."
10. Section 204, occurring in Chapter XVI, provides for issue of process to the accused person, where the Magistrate, taking cognizance of an offence, is of opinion that there is sufficient ground for 'proceeding'.
11. It is noticeable that where the Court is of opinion that there is no sufficient ground for proceeding or that the charge against the accused is groundless, it has to record reasons for dismissal of a complaint or discharge of the accused. This is expressly provided by the statute. No such requirement has been expressly laid down in the statute where the court feels that there is sufficient ground for proceeding and directs issue of process or is of opinion that there is ground for presuming that the accused has committed an offence and proceeds to frame a charge against him.
12. The question is whether such a requirement can be inferred on any acceptable principle of law?
13. Shri T.R. Chandel placed reliance on some decisions of the Punjab & Haryana High Court in which the view taken was that an order by which the Magistrate summons accused persons under Section 204, Cr. P. C. should be a speaking one. In Niranjanlal Bawri v. State, 1975 Chand LR (Cri) 448, Pattar, J., relying upon the decision of the Delhi High Court in Manohar Lal Sharma v. Smt. Prem Lata, 1973 Pun LR (D) 268 said (in paragraph 5) that :
"..............In the instant case, the impugned order dated 19-9-1974 reproduced above was passed by the Magistrate in accordance with the report of the police officer. He did not discuss the statement made on oath by the complainant before it. The Magistrate failed to apply his judicial mind to the material, on which he has to form his judgment that there is a sufficient ground for proceeding against the accused and, therefore, this order is illegal and is quashed."
The same learned Judge decided Jangir Singh v. Smt. Bharpur Kaur, 1976 Chand LR (Cri) 63 (Punj & Har)). In paragraph 4, in its relevant part, the learned Judge said that :
"............according to Section 204(1)..... if in the opinion of a magistrate....... there are sufficient grounds for proceeding against the accused then he has to issue process for his attendance in Court, it is manifest from the provisions of this Section that the Magistrate must apply his mind to the material on the record and then form judgment whether he is to proceed or not against the accused. The opening words of this Section make it obligatory that the opinion of the magistrate must be based on sufficient grounds and this fact should be apparent from the order itself......"
Later, (in paragraph 5) he observed that :
"In the instant case the impugned Order passed by the magistrate is not a speaking order. He did not refer, much less discussed, the statement made on oath, by the complainant and his witnesses before him. He did not apply his judicial mind to the material on which he formed his opinion that there were sufficient grounds for proceeding against the petitioner and his coaccused and, therefore, the impugned order is illegal and is liable to be quashed."
14. In Smt. Inder Kahari v. Mahesh Kumar Mehra, 197 Chand LR (Cri) 17 (Punj & Har), S.P. Goyal, J. observed (in paragraph 4) that :
"..........It is not disputed by Mr. D.R. Puri, the learned counsel for the respondent, that the order summoning the accused has to be a speaking order showing the application of mind by the Judicial Magistrate and the prima facie opinion formed by him on the evidence produced by the complainant. The perusal of the order of the learned Judicial Magistrate reproduced above shows that it lacks in all these material particulars. Consequently, order.........summoning the petitioners is hereby quashed.........."
15. Manohar Lal Sharma, 1973 Pun LR (D) 268 was a case decided by Safeer, J. of the Delhi High Court. What he said was this :
"........ While dealing with Section 203 of the Code in Vadilal Panchal v. Dattatraya, AIR 1960 SC 1113 : (1960 Cri LJ 1499), in paragraph 10 it was observed :
"It is manifestly clear from the provisions of Section 203 that the judgment which the magistrate has to form must be based on the statements of the complainant and his witnesses and the result of the investigation or inquiry."
Similar observations were made by the Supreme Court in L. Pramatha Nath Talukdar....... and Surendra Mohan Basu..... v. Saroj Ranjan Sarkar, AIR 1962 SC 876 : (1962 (1)Cri LJ 770). In paragraph 48, the Supreme Court, observed :
"He must apply his mind to the materials and form his judgment whether or not there is sufficient ground for proceeding."
The observations made by the Supreme Court make it clear that at the stage at which the Magistrate is to decide whether he is to act under Section 203 or Section 204 of the Code he is to apply his judicial mind to the material before him and has to come to judgment whether or not he is to issue process and if so against which of the accused and for which of the offences......
In this case I find that the impugned order ......... suffers from arbitrariness. It does not disclose that the judicial mind was applied to the evidence available before the magistrate. The order should have been a speaking order disclosing that the magistrate had found sufficient grounds for proceeding against the two petitioners. In its present state, the order does not contain any material which may be open to any judicial scrutiny. The impugned order, therefore, is quashed.........."
16. Vadilal Panchal v. Dattatrava Dulaji Ghadigaonkar, AIR 1960 SC 1113 : (1960 Cri LJ 1499) referred to in this judgment of the Delhi High Court was a case in which the Magistrate had dismissed a complaint under Section 203, Cr.P.C. which order was set aside by the High Court. It directed the Magistrate to issue process against the appellant before the Supreme Court. The High Court was of opinion that as a matter of law it was not open to the Magistrate to come to the conclusion that on the material before him no offence had been made out and there was no sufficient ground for proceeding further in the complaint. The Supreme Court examined the scheme disclosed by Sections 200, 202 and 203, Cr.P.C. and concluded that the Magistrate has to apply his judicial mind to the material on which he has to base his conclusion as was clear from the provision of Section 203. The Supreme Court said that the conclusion which the Magistrate has to form is whether or not there was sufficient ground for proceeding. But it did not mean that he was bound to accept any plea which was set up on behalf of the parties. It is noticeable that Section 203 in terms provides that the Magistrate shall be free to record his reason for the conclusion.
17. Pramatha Nath Talukdar v. Saroj Ranjan Sarkar, AIR 1962 SC 876 : (1962 (1) Cri LJ 770), again was a case where the question centred round Section 203, Cr.P.C. The basic question was whether dismissal of a complaint under Section 203, Cr.P.C. will bar entertainment of a second complaint on the same facts or not.
18. The Supreme Court has gone into the question about the duty of the Court at the stage of framing of a charge in a very recent decision in Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijja, AIR 1990 SC 1962 : (1990 Cri LJ 1869). The scope and ambit of "consideration" by the trial court at that stage was examined in the case. After referring to some of the earlier decisions in State of Bihar v. Ramesh Singh, AIR 1977 SC 2018 : (1977 Cri LJ 1606); Union of India v. Prafulla Kumar Samal, AIR 1979 SC 366 : (1977 Cri LJ 154) and Supdt. and Remembrance of Legal Affairs, West Bengal v. Anil Kumar Bhunja, AIR 1980 SC 52 : (1979 Cri LJ 1390) the Court laid down that (para 8 at p. 1967 of AIR 1990 SC 1962) :
"..........It seems well settled that at the Sections 227-228 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."
Earlier, in paragraph 6, it observed :
"The next question is what is the scope and ambit of the 'consideration' by the trial Court at that stage........... It is obvious that since he is at the stage of deciding whether or not there exists sufficient grounds for framing the charge, his enquiry must necessarily be limited to deciding if the facts emerging from the record and documents constitute the offence with which the accused is charged. At that stage he may sift the evidence for that limited purpose but he is not required to marshal the evidence with a view to separating the grain from the chaff......"
19. In the same paragraph the Supreme Court referred to the observations made in Ramesh Singh, AIR 1977 SC 2018 : (1977 Cri LJ 1606) to the effect that (Para 4) :
"..........at the initial stage of the framing of a charge if there is a strong suspicion-evidence 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.............."
20. The result of the evaluation of the material by the Court should appear from the order that it passes. If the trial court is of opinion that there is no sufficient ground for proceeding against the accused or that the charge against the accused is groundless, an order of discharge shall be passed by the Court and it shall record its reasons for doing so. The order, in other words, should mention the basis on which the court comes to a conclusion that the accused person should be discharged. Reasons, as known to law, should appear in the conclusion recorded by the trial court. 'Reasons', to borrow the words of the Supreme Court in Union of India v. M.L. Capoor, AIR 1974 SC 87 (at p. 98) :
"........are the links between the materials on which certain conclusions are based and the actual conclusions. They disclose how the mind is applied to the subject matter for a decision whether it is purely administrative or quasi-judicial. They should reveal a rational nexus between the facts considered and the conclusions reached. Only in this way can opinions or decisions recorded be shown to be manifestly just and reasonable........."
21. Section 251-A, Cr.P.C. 1898,insofar as it is material for our purposes, provided in Sub-sections (2) and (3) that :
"251-A(2) If, upon consideration of all the documents referred to in Section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary, and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge him.
(3) If, upon such documents being considered : such examination, if any, being made and the prosecution and the accused being given an opportunity of being heard, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, ............he shall frame in writing a charge 'against the accused."
22. Section 251-A(2) enabling the Magistrate to discharge the accused did not expressly require recording of reasons for the order of discharge. When the Code of Criminal Procedure 1973 was enacted by the Parliament, the requirement of recording reasons was expressly provided for by it where the trial Court felt that the accused deserved to be discharged. No such requirement was, however, laid down by it where the trial Court felt that a charge should be framed against the accused.
23. Century Spinning & Manufacturing Co. Ltd. v. State of Maharashtra, AIR 1972 SC 545 : (1972 Cri LJ 329) was a case in which the trial Magistrate had passed an order discharging the accused. The High Court set aside that order, on a revision petition filed by the State of Maharashtra, and directed the Magistrate to frame charges against the accused under Section 120-B, IPC and Section 7 of the Essential Commodities Act. The Supreme Court, while examining the provisions of Section 251-A, Cr.P.C. said (in paragraph 15) that:
"........if there is no ground for presuming that the accused has committed an offence, the charges must be considered to be groundless, which is the same thing as saying that there is no ground for framing the charges. This necessarily depends on the facts and circumstances of each case and the Magistrate is entitled and indeed has a duty to consider the entire material referred to in Sub-section (2)............"
Also, in paragraph 16, that :
"...........the responsibility of framing the charges is that of the Court and it has to judicially consider the question of doing so. Without fully adverting to the material on the record it must not blindly adopt the decision of the prosecution."
Leaning heavily upon the observation that the Court should not painly adopt the decision of the prosecution "without fully adverting to the material on the record", it was urged with some emphasis by Shri Chandel that on its plain meaning the word 'advert' should imply that the Court, while framing the charge, should allude or refer to the material in its order. According to Shri Chandel, the absence of a statutory requirement for giving of reasons, when the court decided to frame a charge against the accused person, would not absolve it from such an obligation, particularly, in view of what the Supreme Court had said about it in Century Spinning and Manufacturing Co. Ltd. (1972 Cri LJ 329).
24. Shri Chandel sought assistance for his submission from the observations of the Patna High Court in Mt. Sarfi v. Mt. Sugo, AIR 1962 Patna 253 : (1962 (1) Cri LJ 751) which dealt with the question of 'perusal' of the evidence contemplated by Section 145(4), Cr.P.C. 1898, and said (in paragraph 4) that :
"It is true that for lack of cross-examination of the deponents, who have sworn the affidavits, the magistrate cannot be expected to give detailed reasons for accepting or rejecting the affidavits, but he should make it apparent in his order that he has applied his mind to them."
25. The learned Judge, who decided the case of Mt. Sarfi, made a reference to an earlier judgment delivered by him in Sohan Mushar v. Kailash Singh, AIR 1962 Patna 249 : (1962 (1) Cri LJ 749) and said that he had interpreted the word 'peruse' to mean "to go through critically" that is, "to read alternatively and examine critically in detail one by one".
26. Shri Chandel also sought assistance from a decision of the Madhya Pradesh High Court in Rajendra Kumar v. B.S. Yadav, (1986) 1 Crimes 37, also a case under Section 14, Cr.P.C. in which too a learned single Judge noticed that the executive magistrate had passed the order by mere mechanical reproduction of language and requirement of Section 145(1), Cr.P.C. without application of mind and said (in paragraph 12) that :
"........The essence of justice in the instant case requires fairness in consideration of all the necessary facts in order to reach the subjective satisfaction which cannot be done by mechanical re-production of the provisions of law......."
27. These two decisions, like that of the Supreme Court in Century Spinning and Manufacturing Co. Ltd. (1972 Cri LJ 329) are not of much assistance for a decision whether an order framing a charge should be one which should contain reference to the specific material on the basis whereof the trial court feels that there is ground for presuming that the accused has committed an offence or should contain such recitals as may show the application of mind by the Court to each one of them.
28. Nor is the decision of the Supreme Court in Mustaq Ahmed Mohmed Hussain v. State of Gujarat, AIR 1973 SC 1222 : (1973 Cri LJ 993). That was a case where the Sessions Judge had convicted the accused persons for offences under Section 420 read with Sections 511 and 34, I.P.C, and under Section 474 read with Section 34, I.P.C. by a judgment in which the trial court devoted several pages for the purpose of proper appraisal of the evidence, discarding some of the contentions of the prosecution counsel as unsupportable from the material on the record. The High Court dismissed the appeal filed by the accused persons against their conviction in limine with one word "dismissed". The Supreme Court said (in paragraph 7) that :
"........Section 321, Cr.P.C., no doubt empowers the appellate court to dismiss the appeal summarily but .........The order of summary dismissal can be passed only if the Court considers that there is no sufficient ground for interference. This conclusion has to be arrived at judicially after a proper scrutiny of the petition of the appeal and the impugned judgment or order......... the power of dismissing appeals in limine should, in our view, be exercised sparingly and with judicious caution so that no case raising arguable points, whether of law or of fact requiring re-appraisal of evidence goes without requisite scrutiny. The requirement of recording reasons for summary dismissal, however concise, serves to ensure proper functioning of the judicial process. Reasons are, therefore, advisedly, required by the decisions of this Court to be given for rejecting an appeal summarily under Section 421, Cr.P.C."
29. A similar view was expressed by the Supreme Court in respect of Section 384, Cr.P.C. 1973 which provides for summary dismissal of an appeal, in Shivaji Narayan Bachhav v. State of Maharashtra, (1983) 4 SCC 129 : (1983 Cri LJ 1497) by saying that (at p. 1498 of Cri LJ) :
"......... A convicted person is entitled to ask an appellate court to reappraise the evidence and come to its own conclusion. An appellate court has the undoubted power to dismiss an appeal in limine. Section 384 of the Criminal Procedure Code provides for it. But, it is a power which must be exercised sparingly and with great circumspection......... Summary rejection of the appeal with the laconic expression 'dismissed' seems to be a drastic step in such cases. To so reject an appeal is to practically deny the right of appeal. We cannot also over emphasise the importance of the High Court making a speaking order when dismissing a criminal appeal in limine. "The requirement of recording reasons for summary dismissal, however concise, serves to ensure proper functioning of the judicial process". There must be some indication that the High Court addressed itself to the questions at issue and had the record before it......"
30. The question of recording reasons by an administrative authority for the decision taken by it, where it exercises quasi-judicial or judicial power, was examined at some length by a Constitution Bench of the Supreme Court in a very recent decision in S.N. Mukherjee v. Union of India, AIR 1990 SC 1984 : (1990 Cri LJ 2148). In it, a large number of its earlier decisions were noticed by the Supreme Court. The Supreme Court then observed (in paragraph 38) :
".....Keeping in view the expanding horizon of the principles of natural justice, we are of the opinion, that the requirement to record reason can be regarded as one of the principles of natural justice which govern exercise of power by administrative authorities. The rules of natural justice are not embodied rules. The extent of their application depends upon the particular statutory frame-work whereunder jurisdiction has been conferred on the administrative authority......."
And, concluded (in paragraph 39) that :
"............ it must be concluded that except in cases where the requirement has been dispensed with expressly or by necessary implication an administrative authority exercising judicial or quasi-judicial functions is required to record the reasons for its decision."
Earlier, the Court observed in (paragraph 15) that :
"............The need for recording of reasons is greater in a care where the order is passed at the original stage. The appellate or revisional authority, if it affirms such an order, need not give separate reasons if the appellate or revisional authority agrees with the reasons contained in the order under challenge."
31. The insistence for recording of reasons by the administrative authority is also founded on the ground that :
"There is an essential distinction between a court and an administrative tribunal. A Judge is trained to look at things objectively, uninfluenced by considerations of policy or expediency; but an executive officer generally looks at things from the standpoint of policy and expediency." (See Madhya Pradesh Industries Ltd. v. Union of India, AIR 1966 SC 671.
The recording of reasons, while deciding to frame a charge against an accused person, is not enjoined by the Code of Criminal Procedure. The Legislature brought in the requirement of recording of reasons, by enacting the Code of Criminal Procedure, 1973, where an order discharging the accused is to be passed by the trial court. It incorporated a similar requirement in respect of dismissal of a complaint under Section 203 Cr.P.C. The Legislative intent is clear that no requirement of recording reasons is contemplated where the Court feels that there is ground for presuming that the accused has committed an offence. Obviously, therefore, reasons, as known to law, are not to be recorded in such a case.
32. Both under Sections 228 and 240 Cr.P.C. the accused person has a right to be heard before the trial Court forms an opinion that there is ground for presuming that he has committed an offence. This right, coupled with the fact that the trial court has to consider the record of the case and the evidence brought by the prosecution on it till then, does suggest that the attention of the Court should, at that stage, be attracted to the material for and against the accused even for the opinion that the material disclosed grave suspicion that the accused person has committed an offence. The trial court should, therefore, pass a speaking order in the sense that it should appear to a court exercising supervisory jurisdiction over it that the trial court was alive to the material for and against the accused existing on the record of the case till that stage. The order should not be cryptic or laconic or a bald one merely saying that "there is ground for presuming that the accused has committed an offence". Such an order, by itself, cannot be characterised as disclosing application of mind by the Court but where the order ex facie, or read with some earlier order made by the trial court, can reasonably lead to an inference that the trial court was alive to the material which was relevant, the order would be unexceptionable and would not call for interference only on the ground that it does not specifically refer to each and every piece of evidence incriminating the accused persons which had been placed on the record of the case for the consideration of the Court till that stage.
33. There is another manner of looking at the matter. Since, giving of elaborate reasons for the opinion that charge should be framed in the case is ruled out, by necessary implication, by the provisions of the Code noticed earlier, all that law would require in such a case would be that the order of the trial court is such as leads to an inference that the Court was aware of the material on the record justifying the framing of charge. In other words, the order should disclose ex facie that the Court had not proceeded mechanically in framing the charge merely because accusation had been made by the prosecution against the accused persons but that it had looked into the material brought on the record till then. That would be sufficient compliance with the requirement of law. After all, the opinion that there was material disclosing 'grave suspicion' that the accused persons had committed an offence, is to be formed by a judicial officer trained to examine things objectively without being influenced by considerations of policy or expediency. The training of the judicial mind in that respect is sufficient guarantee of the fact that he would base his opinion on relevant material.
34. One of the submissions of Shri Chandel is that inasmuch as, the correctness or propriety of the order was also open to scrutiny by the revisional Court, the requirement of a speaking order in the sense that it contains reasons therefore should be necessarily there even in the matter of framing of a charge by the trial court. This submission overlooks that while exercising powers of revision under Section 397 Cr.P.C. the revisional Court may call for and examine the record of any proceedings before an inferior criminal court before deciding whether the order under challenge merits interference or not. The revisional court invariably does so except where it feels that the challenge is unsustainable on the face of it for some legally permissible ground. This ensures that the fact of existence or otherwise of relevant material, leading to the opinion formed by the trial court that the case was one in which there existed grounds to do so, on the record will normally be available for scrutiny by the revisional court.
35. The exercise of power under Section 482 Cr.P.C. by the High Court would depend upon existence or otherwise of circumstances in a particular case justifying such exercise in accordance with settled principles governing it. The inherent powers of the Court cannot be invoked on the ground that the order passed by the trial Court for framing the charge does not contain reasons of the nature contemplated by the Code for an order of discharge or for dismissal of a complaint.
36. The submission that the order should be so worded as to give an idea to the accused person as to why the plea made on his behalf for not framing the charge against him came to be rejected by the Court overlooks, firstly, that reasons are not to be given for such an order under the Scheme of the Code of Criminal Procedure and, secondly, that an order of the nature canvassed for by Shri Chandel may sometimes give rise to a plea on behalf of the accused person that the Court had disclosed its mind regarding his culpability at that early stage itself. Obviously, such a situation is to be avoided when the culpability or otherwise of the accused person in yet to be decided on the basis of the evidence to be brought before the Court at the trial.
37. Reliance by Shri Chandel upon the decision of the Supreme Court on Maqbool Hussain v. State of Bombay, AIR 1953 SC 325 : (1953 Cri LJ 1432) is inappropriate. In paragraph 13 of the judgment, to which the attention of this Court was drawn by Shri Chandel, observations from Cooper. v. Wilson, (1937) 2 KB 309 which were quoted with approval in Bharat Bank Ltd., AIR 1950 SC 188 were extracted in the context of the test of a judicial tribunal. The attributes of a judicial decision were enumerated in that context alone.
38. Likewise, the decision in Kuldip Kaur v. Surinder Singh, AIR 1989 SC 232 : (1989 Cri LJ 794) is also of no assistance to Shri Chandel. That was a decision which turned on its own facts as is clear from paragraph 4 of the judgment. The Supreme Court intervened in the matter because it felt that a revisional order against an order under Section 125 Cr.P.C, should have been a speaking one. The Metropolitan Magistrate had recorded a finding that the husband was guilty of cruelty. He had passed a detailed order awarding some amount of maintenance for the wife and the son separately. In enforcement of that order, upon his failure to pay the amount in arrears, the husband was sentenced to suffer simple imprisonment for one month. The plea of the wife that the husband be directed to pay amount in arrears was not accepted. The wife approached the High Court in revision but her revision application was rejected summarily without a speaking order. That order was taken in appeal to the Supreme Court by Special Leave. The Supreme Court observed that the order of the High Court........."betrays total lack of sensitivity on the part of the High Court to the plight of a helpless woman. Were it not so, the High Court would have at least passed a speaking order unfolding the rational process which made the High Court feel helpless in helping a helpless woman and a helpless child.......?"
39. Shri Chandel also canvassed that the opinion of the trial judge to frame charge against the accused persons was founded upon some material, like the statement made by Mr. Panwar under Section 161 Cr.P.C., which was not admissible in evidence. Also, that there was no forgery within the meaning of law so as to justify the framing of charge under Sections 468 and 471 IPC. Shri K.C. Rana, for the State, has countered this submission on various grounds. These are matters about which any expression of opinion by this Court at this stage prejudice one or the other party at the trial. I refrain from expressing any opinion or making any observation about this line of argument of the learned counsel on that account. Suffice it to say that the material placed before the trial court by the prosecution, which has been seen by this Court also, is such which was enough in law to enable the trial court to form the opinion that there was, at least, grave suspicion against the accused persons to frame charge against them.
40. The revisions merit dismissal. I direct accordingly.
41. Let the record of the trial court be sent back to it for further proceedings in accordance with law.