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1 - 10 of 15 (0.57 seconds)Section 109 in The Indian Penal Code, 1860 [Entire Act]
Section 227 in The Code of Criminal Procedure, 1973 [Entire Act]
The Income Tax Act, 1961
The Limitation Act, 1963
Onkar Nath Mishra & Ors vs State (Nct Of Delhi) & Anr on 14 December, 2007
“12. Now the next question is whether a prima facie case has
been made out against the appellant. In exercising powers
under Section 227 of the Code of Criminal Procedure, the
settled position of law is that the Judge while considering
the question of framing the charges under the said section has
the undoubted power to sift and weigh the evidence for the
limited purpose of finding out whether or not a prima facie
case against the accused has been made out; where the
materials placed before the court disclose grave suspicion
against the accused which has not been properly explained the
court will be fully justified in framing a charge and
proceeding with the trial; by and large if two views are
equally possible and the Judge is satisfied that the evidence
produced before him while giving rise to some suspicion but
not grave suspicion against the accused, he will be fully
justified to discharge the accused, and in exercising
jurisdiction under Section 227 of the Code of Criminal
Procedure, the Judge cannot act merely as a post office or a
mouthpiece of the prosecution, but has to consider the broad
probabilities of the case, the total effect of the evidence
and the documents produced before the court but should not
make a roving enquiry into the pros and cons of the matter and
weigh the evidence as if he was conducting a trial.”
We have bestowed our consideration to the rival submissions and the
submissions made by Mr. Ranjit Kumar commend us. True it is that at the
time of consideration of the applications for discharge, the court cannot
act as a mouthpiece of the prosecution or act as a post-office and may sift
evidence in order to find out whether or not the allegations made are
groundless so as to pass an order of discharge. It is trite that at the
stage of consideration of an application for discharge, the court has to
proceed with an assumption that the materials brought on record by the
prosecution are true and evaluate the said materials and documents with a
view to find out whether the facts emerging therefrom taken at their face
value disclose the existence of all the ingredients constituting the
alleged offence. At this stage, probative value of the materials has to be
gone into and the court is not expected to go deep into the matter and hold
that the materials would not warrant a conviction. In our opinion, what
needs to be considered is whether there is a ground for presuming that the
offence has been committed and not whether a ground for convicting the
accused has been made out. To put it differently, if the court thinks that
the accused might have committed the offence on the basis of the materials
on record on its probative value, it can frame the charge; though for
conviction, the court has to come to the conclusion that the accused has
committed the offence. The law does not permit a mini trial at this stage.
Reference in this connection can be made to a recent decision of this
Court in the case of Sheoraj Singh Ahlawat & Ors. vs. State of Uttar
Pradesh & Anr., AIR 2013 SC 52, in which, after analyzing various decisions
on the point, this Court endorsed the following view taken in Onkar Nath
Mishra v. State (NCT of Delhi), (2008) 2 SCC 561:
R.S. Nayak vs A.R. Antulay & Anr on 17 April, 1986
However, discharge under Section 239 can be ordered when “the Magistrate
considers the charge against the accused to be groundless”. The power to
discharge is exercisable under Section 245(1) when, “the Magistrate
considers, for reasons to be recorded that no case against the accused has
been made out which, if not repudiated, would warrant his conviction”.
Section 227 and 239 provide for discharge before the recording of evidence
on the basis of the police report, the documents sent along with it and
examination of the accused after giving an opportunity to the parties to be
heard. However, the stage of discharge under Section 245, on the other
hand, is reached only after the evidence referred in Section 244 has been
taken. Thus, there is difference in the language employed in these
provisions. But, in our opinion, notwithstanding these differences, and
whichever provision may be applicable, the court is required at this stage
to see that there is a prima facie case for proceeding against the accused.
Reference in this connection can be made to a judgment of this Court in
the case of R.S. Nayak v. A.R. Antulay, (1986) 2 SCC 716. The same reads
as follows:
Pundlik Jalam Patil (D) By Lrs vs Exe.Eng. Jalgaon Medium Project & Anr on 3 November, 2008
“29. In our view, it is the right time to inform all the
government bodies, their agencies and instrumentalities that
unless they have reasonable and acceptable explanation for the
delay and there was bona fide effort, there is no need to
accept the usual explanation that the file was kept pending
for several months/years due to considerable degree of
procedural red tape in the process. The government departments
are under a special obligation to ensure that they perform
their duties with diligence and commitment. Condonation of
delay is an exception and should not be used as an anticipated
benefit for the government departments. The law shelters
everyone under the same light and should not be swirled for
the benefit of a few.”
Mr. Sorabjee further submits that the Limitation Act does not provide
for different period of limitation for the Government in resorting to the
remedy provided under the law and the case in hand being not a case of
fraud or collusion by its officers or agents, the huge delay is not fit to
be condoned. Reliance has also been placed on a decision of this Court in
the case of Pundlik Jalam Patil v. Executive Engineer, Jalgaon Medium
Project, (2008) 17 SCC 448 and reference has been made to Paragraph 31 of
the judgment, which reads as follows:
Section 13 in The Indian Penal Code, 1860 [Entire Act]
Dilawar Balu Kurane vs State Of Maharashtra on 8 January, 2002
Now reverting to the decisions of this Court in the case Sajjan Kumar
(supra) and Dilawar Balu Kurane (supra), relied on by the respondents, we
are of the opinion that they do not advance their case. The aforesaid
decisions consider the provision of Section 227 of the Code and make it
clear that at the stage of discharge the Court can not make a roving
enquiry into the pros and cons of the matter and weigh the evidence as if
it was conducting a trial. It is worth mentioning that the Code
contemplates discharge of the accused by the Court of Sessions under
Section 227 in a case triable by it; cases instituted upon a police report
are covered by Section 239 and cases instituted otherwise than on a police
report are dealt with in Section 245. From a reading of the aforesaid
sections it is evident that they contain somewhat different provisions with
regard to discharge of an accused. Under Section 227 of the Code, the
trial court is required to discharge the accused if it “considers that
there is not sufficient ground for proceeding against the accused”.