DISCHARGE PETITION - Shabra Khatoon v. State Of Jharkhand

                                   DISCHARGE  PETITION 

           Shabra Khatoon And Ors.  vs State Of Jharkhand And Anr. 

                                    Jharkhand High Court

Shabra Khatoon And Ors. 

vs 

State Of Jharkhand And Anr. on 20 April, 2005

Equivalent citations: 2005 CriLJ 3292, II (2005) DMC 319

Bench: A Sahay

JUDGMENT Amareshwar Sahay, J.

1. Heard the parties.

2. The prayer of the petitioner in this application is to set aside the impugned order dated 30.7.2003 whereby the learned S.D.J.M., Hazaribagh rejected the petition filed by the petitioner under Section 245, Cr.P.C. for discharge.

3. The facts in short are that O.P. No. 2 Afsana Khatoon lodged a complaint before the C.J.M., Hazaribagh, against the petitioners, for allegedly committing the offence under Sections 498-A, 323, 386, 406, 306, 120-B and 34 of the I.P.C.

4. In view of the argument advanced and the points raised on behalf of the petitioners, it is not necessary to state the allegations made in the complaint petition. Suffice it to say that the Judicial Magistrate after examining the complainant and holding enquiry under Section 202, Cr.P.C., took cognizance of the offences under Sections 498-A and 323, I.P.C. against the petitioners. Thereafter, before charge five witnesses including the complainant were examined under the provisions of Section 244, Cr.P.C. At this stage an application under Section 245, Cr.P.C. was filed on behalf of the accused persons, i.e., the petitioners herein praying for discharge mainly on the ground that the evidence adduced on behalf of the complainant under Section 244, Cr.P.C. was not specific against any of the accused and only omnibus allegations were made and, therefore, there was no material to frame charge against the accused persons. The prayer of the petitioners was objected to by the complainant and then by the impugned order, dated 30.7.2003, the petition filed for discharge under Section 245, Cr.P.C. was rejected.

5. Mr. T.R. Bajaj, learned Counsel appearing for the petitioners mainly submitted that the impugned order is absolutely cryptic one and no reasons whatsoever has been assigned by the learned Court below for refusing to discharge the petitioners. Only in one line it has been stated that there are sufficient evidence to frame charge, and in that view of the matter, the order is absolutely illegal, as it does not conform the requirements of Section 245, Cr.P.C.

6. On the other hand Mr. Mohit Prakash, learned Counsel appearing for the complainant submitted that the impugned order does not require any interference, as there is no illegality in it. It is submitted that in view of the decision in the case of Kanti Bhadra Shah and Anr. v. State of West Bengal, reported in I (2000) CCR 72 (SC)=2000 (3) PLJR 150 (SC), no reason is required to be assigned by the Trial Court in rejecting the petition for discharge. It is further submitted that only on the ground that no reason has been assigned the order framing charge cannot be quashed.

7. In order to test the submissions made by the parties it is important to examine the relevant provisions of the Criminal Procedure Code.

8. Chapter XIX of the Code of Criminal Procedure deals with the trial of warrant cases by Magistrates. Section 238 to Section 243 under the said Chapter deals with the cases instituted on a police report, whereas Section 244 to Section 247 deals with the cases instituted otherwise than a police report.

9. Section 239, Cr.P.C. provides as to when the accused shall be discharge in a case instituted on a police report, whereas Section 245 provides as to when the accused shall be discharged in a case instituted otherwise than on a police report, meaning thereby in complaint case, etc.

10. Section 239 of the Cr.P.C. speaks that "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."

11. Section 245 of the Code provides that "if, upon taking all the evidence referred to in Section 244, the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him."

12. Therefore, under both the provisions, i.e., under Section 239 wherein the words used are that the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing and under Section 245 it provides that if, upon taking all the evidence referred to in Section 244, the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him.

13. Therefore, from the above underlines provisions of Sections 239 and 245 of the Cr.P.C. it is clear that whether a case which is instituted on a police report or is instituted otherwise than a police report, i.e., complaint petition, etc. for discharging an accused the Magistrate is mandatorily required to record reasons for doing so.

14. Similar is the provision under Chapter XVIII of the Code, which deals with the trial before the Court of Sessions. Section 227 under the said Chapter provides for discharge of the accused. It says that 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.

15. Section 228 of the Code provides for framing of charge in case triable by Court of Sessions, whereas Section 240 provides for framing of charge in a trial of warrant cases by Magistrate instituted on a police report, whereas Section 246 of the Code provides the procedure where the accused has not been discharged in a case instituted, otherwise then a police report. For ready reference Sections 228, 240 and Section 246 are reproduced hereinbelow:

"228. 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 charged or claims to be tried.

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.

246. Procedure where the accused is not discharged--(1) If, when such evidence has been taken, or at any previous stage of the case, 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 or has any defence to make.

(3) If the accused pleads guilty, the Magistrate shall record the plea, and may, in his discretion, convict him thereon.

(4) If the accused refuses to plead, or does not plead or claims to be tried or if the accused is not convicted under Sub-section (3), he shall be required to state, at the commencement of the next hearing of the case, or, if the Magistrate for reasons to be recorded in writing so thinks fit, forthwith, whether he wishes to cross-examine any, and if so, which, of the witness for the prosecution whose evidence has been taken.

(5) If he says he does so wish, the witnesses named by him shall be recalled and, after, cross-examination and re-examination (if any), they shall be discharged.

(6) The evidence of any remaining witnesses for the prosecution shall next be taken, and after cross-examination and re-examination (if any), they shall also be discharged.

16. From the aforesaid quoted provisions of the Code, i.e., Sections 228, 240 and 246 it is apparent that, there is no requirement under the law that if the Magistrate decides to frame charge then for framing charge he has to record reasons for doing so.

17. When the Trial Court has to pass an appropriate order in exercise of the powers conferred under Section 227, or 239 or 245, Cr.P.C. then he has to pass a reasoned order but when the Trial Court frames charge in exercise of the powers conferred under Sections 228, or 240 or 246 then no reasons are required to be made in the order framing charge.

18. In the case of State of Karnataka v. L. Muniswamy, , the Supreme Court while dealing with a case under the provisions of Section 227 of the Cr.P.C., i.e., in a case triable by a Court of Session, has held that the object of the provisions which requires the Sessions Judge to record its reason is to unable the Superior Court to examine the correctness of the reasons for which the Sessions Judge has held that there is or is not sufficient ground for proceeding against the accused. High Court, therefore, is entitled to go into the reasons given by the Sessions Judge in support of his order and to determine for itself whether the order is justified by the facts and circumstances of the case.

19. In my view, the same analogy would apply in a case covered under Sections 239 and 245, Cr.P.C. Therefore, relying on the aforesaid decision of the Supreme Court in the case of State of Karnataka v. L. Muniswamy, (supra) I find from the impugned order that no reason at all has been assigned by the Trial Court for refusing to discharge the accused petitioners and, as such, it suffers from serious infirmity.

20. The decision  Supreme Court in the case of Kanti Bhadra Shah (supra) is the decision on the point that no reason is required to be given if the Court decides to frame charge against the accused.

21. There is no dispute on this point, as I have also already held above that no reason is required to be assigned in the order framing of charge.

22. Accordingly, this application is allowed. The impugned order dated 30.7.2003 passed by the S.D.J.M., Hazaribagh, in Complaint Case No. 174/2000, is hereby set aside and the matter is remitted back to the learned S.D.J.M. for passing a fresh order after hearing the parties and after recording the reasons, within a period of one month from the date of receipt/production of a copy of this order.