Kerala High Court
Benny vs The Sub Inspector Of Police on 18 July, 2006
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.D.RAJAN
MONDAY,THE 20TH DAY OF JUNE 2016/30TH JYAISHTA, 1938
Crl.Rev.Pet.No. 2854 of 2005 ( )
---------------------------------
AGAINST THE ORDER IN CC 36/2005 of J.M.F.C.-I, THRISSUR
--------------------------------
REVISION PETITIONERS/ACCUSED 1 & 2::
----------------------------------------------------------
1. BENNY, S/O. VAREED,
NELLAMKARA HOUSE, ST. GEORGE STREET,
KURIACHIRA, THRISSUR.
2. ANCY BENNY, W/O. BENNY,
NELLAMKARA HOUSE, ST. GEORGE STREET,
KURIACHIRA, THRISSUR.
BY ADV. SRI.T.G.RAJENDRAN
RESPONDENTS/COMPLAINANT AND STATE::
--------------------------------------------------------------
1. THE SUB INSPECTOR OF POLICE,
THRISSUR EAST POLICE STATION.
2. STATE, REP. BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
*3. SALEEM, S/O.MUTHU, THOTTATHIL HOUSE,
THIRUVANIKAVU, MANNUTHY, THRISSUR
* ADDL. 3RD RESPONDENT IS IMPLEADED AS PER ORDER DATED 18.07.2006
IN CRL.M.A.6816/2006.
R1 & R2 BY ADV. PUBLIC PROSECUTOR SMT.M.G.LISHA
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 20-
06-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
STK
P.D. RAJAN, J.
-------------------------
Crl. R.P. No.2854 of 2005
----------------------------------------------
Dated this the 20th day of June, 2016
ORDER
This revision petition is filed by the 1st and 2nd
accused in C.C.36/2005 on the files of Judicial First Class
Magistrate-1, Thrissur, which was filed for offences
punishable u/s. 405, 406, 420 r/w 34 IPC. The case
against them is that, the accused pretended as diamond
vendors and received Rs.3 lakhs between June and August
in the year 2002 and ensured that they will sell the costly
Emerald diamonds of CW1 worth Rs.5,50,000/- for higher
amount and will purchase more costly diamond for sale.
Accordingly, 3rd, 4th, 5th & 6th accused travelled to
Thirunelvely and other places pretending for sale of
diamond, thereafter they stated that no business had
taken place, then the 1st accused handed over the
diamonds to the 2nd accused who in turn handed over the
same to the 3rd accused, who in turn handed over the
same to the 4th and 5th accused and thereby committed
Crl. R.P. No.2854 of 2005 2
offence punishable under Sections 405, 406, 420 r/w 34
IPC.
2. The defacto complainant filed a complaint before
the Chief Judicial Magistrate Court, which was forwarded
to Thrissur, East Police Station under Section 156(3) of the
Cr.P.C. for investigation, where they registered a crime
and after completing investigation, laid charge before
Chief Judicial Magistrate, Thrissur. The case records were
forwarded to Judicial First Class Magistrate-1, Thrissur
from the Court of Chief Judicial Magistrate, Thrissur, which
was taken on file as C.C.322/2004 under Sections 405,
406, 420 r/w 34 IPC and made over the case to Judicial
First Class Magistrate-1, Thrissur, where it re-registered as
C.C.36/2005. The learned Magistrate has taken
cognizance of the offence. Being aggrieved by that, 1st
and 2nd accused approached this Court with this revision
petition.
3. Heard the learned counsel appearing for the
petitioner and the Public Prosecutor.
Crl. R.P. No.2854 of 2005 3
4. Section 239 and 240 of Cr.P.C. read as follows:
"239. When accused shall be discharged.- If, upon
considering the police report and the documents sent
with it under 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 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) The charge shall then be read and explained to
the accused, and he shall be asked whether he pleads
guilty of the offence charged or claims to be tried."
In warrant case where the proceedings has been 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. If the accused admitted
that he received all relevant copies of the police report
and other documents at the time of appearance in the
trial Court, free of cost, he must be given an opportunity
Crl. R.P. No.2854 of 2005 4
of being heard. Upon consideration of the police report
and the documents issued u/s.173, the Magistrate thinks
necessary that after giving opportunity, the prosecution
and the accused, of being heard, the Magistrate considers
that the charge against the accused is groundless, he
shall be discharged and recording his reasons for so
doing.
5. Apex Court in Century Spinning &
Manufacturing Co. v. State of Maharashtra [(1972) 3
SCC 282] [1972 SCC Cri 495] held as follows:
"(i) The construction and meaning of Section 251-A of
Code of Criminal Procedure does not present any
difficulty. Under sub-section (2), if upon consideration of
all the documents referred to in Section 173 CrPC, and
examining the accused, if considered necessary by the
Magistrate and also hearing both sides, the Magistrate
considers the charge to be groundless, he must
discharge the accused. This Sub-section, has to be read
along with sub-section (3), according to which, if after
considering the documents and hearing the accused, the
Magistrate thinks that there is ground for presuming
that the accused has committed an offence triable under
Chapter XXI of the Code within the Magistrate's
competence and for which he can punish adequately he
has to frame in writing a charge against the accused.
Reading the two sub-sections together, it clearly means
that if there is no ground for presuming that the accused
has committed an offence, the charge must be
considered to be groundless, which is the same thing as
Crl. R.P. No.2854 of 2005 5
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)
(ii) From the plain language of Section 251-A of Code of
Criminal Procedure or on its judicial interpretation or on
any recognized principles of law it cannot be accepted
that at the stage of framing the charges the court has
not to apply its judicial mind for considering whether or
not there is a ground for presuming the commission of
the offence by the accused. The order framing the
charges does substantially affect the person's liberty
and it is not possible to countenance the view that the
court must automatically frame the charge merely
because the prosecuting authorities by relying on the
documents referred to in Section 173 consider it proper
to institute the case. 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 the material on the record it must not blindly
adopt the decision of the prosecution."
6. Apex Court in Kanti Bhadra Shah v. State of
West Bengal [(2000) 1 SCC 722] [1991 Cr LJ 3012] [1982
Cr LJ 1923] held as follows:
"Section 239 shows that the Magistrate is obliged to
record his reasons if he decides to discharge the
accused. But in view of Section 240 there is no such
requirement if he forms the opinion that there is ground
for presuming that the accused and committed the
offence which he is competent to try. In such a
situation, he is only required to frame a charge in
writing against the accused. If the trial court decides to
frame a charge there is no legal requirement that he
should pass an order specifying the reasons as to why
he opts to do so. Framing of charge itself is prima facie
Crl. R.P. No.2854 of 2005 6
order that the trial Judge has formed the opinion, upon
considering the police report and other documents and
after hearing both sides, that there is ground for
presuming that the accused has committed the offence
concerned. Even in cases instituted otherwise than on
a police report the Magistrate is required to write an
order showing the reasons only if he is to discharge the
accused. This is clear from Section 245. Even in a trial
before a Court of Session, the Judge is required to
record reasons only if he decides to discharge the
accused (vide Section 227 of the Code). But if he is to
frame the charge he may do so without recording his
reasons for showing why he framed the charge.
If there is no legal requirement that the trial court
should write an order showing the reasons for framing a
charge, there is no need to further burden the already
burdened trial courts with such extra work. The time
has reached to adopt all possible measures to expedite
the court procedures and to chalk out measures to
avert all roadblocks causing avoidable delays. If a
Magistrate is to write detailed orders at different stages
merely because the counsel would address arguments
at all stages, the snail-;aced progress of proceedings in
trial courts would further be slowed down. A detailed
order may be passed for culminating the proceedings
before them, but it is quite unnecessary to write
detailed orders at other stages, such as issuing process,
remanding the accused to custody, framing of charges,
passing over to next stages in the trial. It is a salutary
guideline that when orders rejecting or granting bail are
passed, the court should avoid expressing one way or
the other on contentious issues, except in cases such as
those falling within Section 37 of the Narcotic Drugs
and Psychotropic Substance Act, 1985.
In the present case as the Metropolitan Magistrate
has chosen to frame the charge, the High Court, when
moved by the accused for quashment of the charge,
could have re-examined the records to consider
whether the charge framed was sustainable or not. If
the High Court decides to quash the charge it is open to
the High Court to record the reasons thereof. The
Crl. R.P. No.2854 of 2005 7
present order of the High Court is one of setting aside
the charge without stating any reason. But the direction
to the Magistrate to consider the materials once again
and then to frame a charge for the same offence (if the
Magistrate reaches the opinion that there is ground for
presuming the commission of offence) is simply to
repeat what the Metropolitan Magistrate had done once
at the first instance. To ask him to do the same thing
over again is adding an unnecessary extra work on the
trial court. Be that as it may, the State has not
challenged the order of the High Court. Hence the
impugned order of the High Court need not be set
aside. It is for the Metropolitan Magistrate to exercise
his functions under Section 239 or Section 40 of the
Code as he deems fit in the light of the observations
made above."
7. A perusal of Section 239 of the Code shows that, if
upon considering the police report and the documents
sent with it under Section 173 and making such
examination of the accused, if any, the Magistrate thinks
necessary and after giving the prosecution and the
accused an opportunity of being heard, there is no case
against the accused and the charge is groundless, he shall
be discharged. The Magistrate shall record the reason for
doing so. While discharging the accused the Court has to
apply its judicial mind to all evidence before him in that
case. If the evidence in this case shows that the charge is
Crl. R.P. No.2854 of 2005 8
groundless, then Court cannot give benefit of doubt to the
accused at that stage, but the Court shall discharge the
accused. When a strong suspicion found on materials
which lead the Magistrate to form an opinion about the
ingredients of the offence that is sufficient to discharge
the accused. After considering the entire evidence the
Court considers that there is no ground for believing that
he has committed the offence then he is bound to
discharge the accused. On such scrutiny if it shows that
ingredients of an offence exist, that is sufficient to frame a
charge. If prima facie case is made out on the hearing
and there is ground for presuming that accused
committed an offence triable as alleged, the Magistrate is
competent to try, he shall frame a charge against the
accused.
8. If that be the position, in a warrant case instituted
on police report it is the primary responsibility of the trial
court to hear the accused and the prosecution, whether
the charge against the accused is groundless or not. Even
Crl. R.P. No.2854 of 2005 9
before that stage, this Court cannot interfere in the
procedure of the trial court. Petitioners are directed to
appear in the trial court for such scrutiny and co-operate
with the trial. There is no merit in this petition and it is
dismissed accordingly.
sd/-
P.D. RAJAN,
STK JUDGE
//TRUE COPY//
//P.A. TO JUDGE//
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.D.RAJAN
MONDAY,THE 20TH DAY OF JUNE 2016/30TH JYAISHTA, 1938
Crl.Rev.Pet.No. 2854 of 2005 ( )
---------------------------------
AGAINST THE ORDER IN CC 36/2005 of J.M.F.C.-I, THRISSUR
--------------------------------
REVISION PETITIONERS/ACCUSED 1 & 2::
----------------------------------------------------------
1. BENNY, S/O. VAREED,
NELLAMKARA HOUSE, ST. GEORGE STREET,
KURIACHIRA, THRISSUR.
2. ANCY BENNY, W/O. BENNY,
NELLAMKARA HOUSE, ST. GEORGE STREET,
KURIACHIRA, THRISSUR.
BY ADV. SRI.T.G.RAJENDRAN
RESPONDENTS/COMPLAINANT AND STATE::
--------------------------------------------------------------
1. THE SUB INSPECTOR OF POLICE,
THRISSUR EAST POLICE STATION.
2. STATE, REP. BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
*3. SALEEM, S/O.MUTHU, THOTTATHIL HOUSE,
THIRUVANIKAVU, MANNUTHY, THRISSUR
* ADDL. 3RD RESPONDENT IS IMPLEADED AS PER ORDER DATED 18.07.2006
IN CRL.M.A.6816/2006.
R1 & R2 BY ADV. PUBLIC PROSECUTOR SMT.M.G.LISHA
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 20-
06-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
STK
P.D. RAJAN, J.
-------------------------
Crl. R.P. No.2854 of 2005
----------------------------------------------
Dated this the 20th day of June, 2016
ORDER
This revision petition is filed by the 1st and 2nd accused in C.C.36/2005 on the files of Judicial First Class Magistrate-1, Thrissur, which was filed for offences punishable u/s. 405, 406, 420 r/w 34 IPC. The case against them is that, the accused pretended as diamond vendors and received Rs.3 lakhs between June and August in the year 2002 and ensured that they will sell the costly Emerald diamonds of CW1 worth Rs.5,50,000/- for higher amount and will purchase more costly diamond for sale. Accordingly, 3rd, 4th, 5th & 6th accused travelled to Thirunelvely and other places pretending for sale of diamond, thereafter they stated that no business had taken place, then the 1st accused handed over the diamonds to the 2nd accused who in turn handed over the same to the 3rd accused, who in turn handed over the same to the 4th and 5th accused and thereby committed Crl. R.P. No.2854 of 2005 2 offence punishable under Sections 405, 406, 420 r/w 34 IPC.
2. The defacto complainant filed a complaint before the Chief Judicial Magistrate Court, which was forwarded to Thrissur, East Police Station under Section 156(3) of the Cr.P.C. for investigation, where they registered a crime and after completing investigation, laid charge before Chief Judicial Magistrate, Thrissur. The case records were forwarded to Judicial First Class Magistrate-1, Thrissur from the Court of Chief Judicial Magistrate, Thrissur, which was taken on file as C.C.322/2004 under Sections 405, 406, 420 r/w 34 IPC and made over the case to Judicial First Class Magistrate-1, Thrissur, where it re-registered as C.C.36/2005. The learned Magistrate has taken cognizance of the offence. Being aggrieved by that, 1st and 2nd accused approached this Court with this revision petition.
3. Heard the learned counsel appearing for the petitioner and the Public Prosecutor.
Crl. R.P. No.2854 of 2005 3
4. Section 239 and 240 of Cr.P.C. read as follows:
"239. When accused shall be discharged.- If, upon considering the police report and the documents sent with it under 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 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) The charge shall then be read and explained to the accused, and he shall be asked whether he pleads guilty of the offence charged or claims to be tried."
In warrant case where the proceedings has been 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. If the accused admitted that he received all relevant copies of the police report and other documents at the time of appearance in the trial Court, free of cost, he must be given an opportunity Crl. R.P. No.2854 of 2005 4 of being heard. Upon consideration of the police report and the documents issued u/s.173, the Magistrate thinks necessary that after giving opportunity, the prosecution and the accused, of being heard, the Magistrate considers that the charge against the accused is groundless, he shall be discharged and recording his reasons for so doing.
5. Apex Court in Century Spinning & Manufacturing Co. v. State of Maharashtra [(1972) 3 SCC 282] [1972 SCC Cri 495] held as follows:
"(i) The construction and meaning of Section 251-A of Code of Criminal Procedure does not present any difficulty. Under sub-section (2), if upon consideration of all the documents referred to in Section 173 CrPC, and examining the accused, if considered necessary by the Magistrate and also hearing both sides, the Magistrate considers the charge to be groundless, he must discharge the accused. This Sub-section, has to be read along with sub-section (3), according to which, if after considering the documents and hearing the accused, the Magistrate thinks that there is ground for presuming that the accused has committed an offence triable under Chapter XXI of the Code within the Magistrate's competence and for which he can punish adequately he has to frame in writing a charge against the accused.
Reading the two sub-sections together, it clearly means that if there is no ground for presuming that the accused has committed an offence, the charge must be considered to be groundless, which is the same thing as Crl. R.P. No.2854 of 2005 5 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)
(ii) From the plain language of Section 251-A of Code of Criminal Procedure or on its judicial interpretation or on any recognized principles of law it cannot be accepted that at the stage of framing the charges the court has not to apply its judicial mind for considering whether or not there is a ground for presuming the commission of the offence by the accused. The order framing the charges does substantially affect the person's liberty and it is not possible to countenance the view that the court must automatically frame the charge merely because the prosecuting authorities by relying on the documents referred to in Section 173 consider it proper to institute the case. 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 the material on the record it must not blindly adopt the decision of the prosecution."
6. Apex Court in Kanti Bhadra Shah v. State of West Bengal [(2000) 1 SCC 722] [1991 Cr LJ 3012] [1982 Cr LJ 1923] held as follows:
"Section 239 shows that the Magistrate is obliged to record his reasons if he decides to discharge the accused. But in view of Section 240 there is no such requirement if he forms the opinion that there is ground for presuming that the accused and committed the offence which he is competent to try. In such a situation, he is only required to frame a charge in writing against the accused. If the trial court decides to frame a charge there is no legal requirement that he should pass an order specifying the reasons as to why he opts to do so. Framing of charge itself is prima facie Crl. R.P. No.2854 of 2005 6 order that the trial Judge has formed the opinion, upon considering the police report and other documents and after hearing both sides, that there is ground for presuming that the accused has committed the offence concerned. Even in cases instituted otherwise than on a police report the Magistrate is required to write an order showing the reasons only if he is to discharge the accused. This is clear from Section 245. Even in a trial before a Court of Session, the Judge is required to record reasons only if he decides to discharge the accused (vide Section 227 of the Code). But if he is to frame the charge he may do so without recording his reasons for showing why he framed the charge.
If there is no legal requirement that the trial court should write an order showing the reasons for framing a charge, there is no need to further burden the already burdened trial courts with such extra work. The time has reached to adopt all possible measures to expedite the court procedures and to chalk out measures to avert all roadblocks causing avoidable delays. If a Magistrate is to write detailed orders at different stages merely because the counsel would address arguments at all stages, the snail-;aced progress of proceedings in trial courts would further be slowed down. A detailed order may be passed for culminating the proceedings before them, but it is quite unnecessary to write detailed orders at other stages, such as issuing process, remanding the accused to custody, framing of charges, passing over to next stages in the trial. It is a salutary guideline that when orders rejecting or granting bail are passed, the court should avoid expressing one way or the other on contentious issues, except in cases such as those falling within Section 37 of the Narcotic Drugs and Psychotropic Substance Act, 1985.
In the present case as the Metropolitan Magistrate has chosen to frame the charge, the High Court, when moved by the accused for quashment of the charge, could have re-examined the records to consider whether the charge framed was sustainable or not. If the High Court decides to quash the charge it is open to the High Court to record the reasons thereof. The Crl. R.P. No.2854 of 2005 7 present order of the High Court is one of setting aside the charge without stating any reason. But the direction to the Magistrate to consider the materials once again and then to frame a charge for the same offence (if the Magistrate reaches the opinion that there is ground for presuming the commission of offence) is simply to repeat what the Metropolitan Magistrate had done once at the first instance. To ask him to do the same thing over again is adding an unnecessary extra work on the trial court. Be that as it may, the State has not challenged the order of the High Court. Hence the impugned order of the High Court need not be set aside. It is for the Metropolitan Magistrate to exercise his functions under Section 239 or Section 40 of the Code as he deems fit in the light of the observations made above."
7. A perusal of Section 239 of the Code shows that, if upon considering the police report and the documents sent with it under Section 173 and making such examination of the accused, if any, the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, there is no case against the accused and the charge is groundless, he shall be discharged. The Magistrate shall record the reason for doing so. While discharging the accused the Court has to apply its judicial mind to all evidence before him in that case. If the evidence in this case shows that the charge is Crl. R.P. No.2854 of 2005 8 groundless, then Court cannot give benefit of doubt to the accused at that stage, but the Court shall discharge the accused. When a strong suspicion found on materials which lead the Magistrate to form an opinion about the ingredients of the offence that is sufficient to discharge the accused. After considering the entire evidence the Court considers that there is no ground for believing that he has committed the offence then he is bound to discharge the accused. On such scrutiny if it shows that ingredients of an offence exist, that is sufficient to frame a charge. If prima facie case is made out on the hearing and there is ground for presuming that accused committed an offence triable as alleged, the Magistrate is competent to try, he shall frame a charge against the accused.
8. If that be the position, in a warrant case instituted on police report it is the primary responsibility of the trial court to hear the accused and the prosecution, whether the charge against the accused is groundless or not. Even Crl. R.P. No.2854 of 2005 9 before that stage, this Court cannot interfere in the procedure of the trial court. Petitioners are directed to appear in the trial court for such scrutiny and co-operate with the trial. There is no merit in this petition and it is dismissed accordingly.
sd/-
P.D. RAJAN,
STK JUDGE
//TRUE COPY//
//P.A. TO JUDGE//