Ashim Kumar Roy, J.@mdashSeeking quashing of order of framing charge under Sections 498A/406 of the Indian Penal Code in connection with BGR Case No. 2472/06 passed by the Learned Judicial Magistrate, 1st Court, Alipore, South 24-Parganas, the petitioner invoking inherent jurisdiction of this Court moved the instant criminal revisional application.
2. Inspite of repeated calls none appears on behalf of the opposite party No. 2. The affidavit of service is already on record. However, Mr. Sekhar Basu, the learned advocate, appearing on behalf of the petitioner as well as Mr. Rabi Shankar Chatterjee, the learned advocate appearing on behalf of the State are present in Court.
3. The main thrust of the argument of Mr. Sekhar Basu, the Learned Counsel, appearing on behalf of the petitioner, is this, that the Learned Court below while framing the impugned charge has not recorded any reason, although recording of reason is one of the basic requirements for dispensation of justice. He further submitted that the impugned order of framing charge without recording reason clearly demonstrate that such an order was passed by the Learned Magistrate mechanically and without any application of mind. Mr. Sekhar Basu, vehemently urged before this Court the impugned order of framing charge is absolutely illegal and without jurisdiction.
Mr. Basu further submitted that from the evidentiary materials collected by the police during the course of investigation, on the face of the same does not make out any prima facie case for which the impugned charge has been framed. He thus prays for quashing of the impugned order of framing charge. Mr. Basu in support of his argument relied on the following decisions;
(i)
Amongst the aforesaid decisions Mr. Basu heavily relied the decision of the Apex Court in the case of
4. On the other hand, Mr. Rabi Shankar Chatterjee, the learned advocate appearing on behalf of the State produced the Case Diary and strongly opposed the prayer for quashing. Mr. Chatterjee submitted that there is no illegality and impropriety in the order of framing charge and no reason is required to be assigned for a Court while framing charge. He further submitted the evidentiary material collected by the police during the course of investigation clearly makes out a prima facie case of alleged offences.
5. Heard the learned advocates appearing on behalf of the parties. Perused the evidentiary materials collected by the investigating agency during the course of investigation which are the foundation of order of framing charge as well as other materials on record and the decisions relied upon on behalf of the petitioner.
6. In the instant criminal revisional application the following points arises for decisions;
(a) Is it necessary for a Trial Court to record reason while framing charge?
(b) Whether on the face of the evidentiary materials collected by the police during the course of investigation justifies the framing of impugned charge as against the present petitioner?
7. In the instant case, the offences involved are punishable under Sections 498A/406 of the Indian Penal Code and in terms of first schedule relating to classification of offences under the Indian Penal Code both are triable by a Magistrate of the First Class. Since both the offences are punishable with imprisonment exceeding two years, under the scheme of Code of Criminal Procedure the said offences fall within the category of warrant cases. Thus, in case of trial of those offences, being the warrant cases and as instituted on a police report the trial to be held before a Magistrate in terms of the procedure prescribed for trial of warrant case by Magistrate relating to a case instituted on a police report in terms of Section 238 to 243 of the Code and Section 248 to 250 of the Code under Chapter IX of the Code of Criminal Procedure.
8. The provisions of Section 239 as well as Section 240 of the Code which prescribed the procedure for discharge of an accused and the procedure for framing of charge are quoted below;
Section 239 of the Code of Criminal Procedure:
239. If, upon considering the police report and the documents sent with it u/s 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.
Section 240 of the Code of Criminal Procedure:
240. (1) If, upon such consideration, examination, if any, and hearing, the Magistrate is of opinion that there is ground for presuming that the 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.
9. A plain reading of aforesaid two statutory provisions makes it abundantly clear while recording of reason is mandatory in a case when the Learned Magistrate discharge an accused but there has been no obligation on the part of the Learned Magistrate to record reasons when the charge is framed. All that is necessary that the Learned Magistrate before forming an opinion for framing of charge must consider the police report and other materials on record and heard the parties. Having gone through the impugned order I have found in the instant case the Learned Magistrate after having considered the materials on record and hearing both the parties framed the charge against the accused/petitioner.
10. I have carefully gone through the decisions of the Hon''ble Apex Court in the case of Century Spinning and Manufacturing Co. Ltd. and Ors. v. State of Maharashtra reported in 1972 SCC 495, relied on behalf of the petitioner. I found the said decision rendered by a three Judges Bench of Hon''ble Supreme Court is an authority where the Supreme Court has delineated the duty of the Trial Court at the stage of consideration the question of framing charge. In the said decision it has been categorically laid down that while framing charge a Court must not automatically framed the charge merely because the prosecuting authorities by relying on the documents referred to in Section 173 considered it proper to frame charge. The responsibility of framing the charge is that of the Court and it has to judicially consider the question of doing so and without fully adverting to the materials on the record it must not blindly adopt the decision of the prosecution. However, upon perusal of the said decision on which the Learned Counsel of the petitioner heavily stress I do not find that the Apex Court held that while framing charge the Court must assign the reason for the same.
11. On the contrary in the case of Kanti Bhadra Saha and Anr. v. State of West Bengal reported in 2000 CLR (SC) 151, it was held by the Apex Court, if the Trial Court decides to frame a charge there is no legal requirement that it should pass an order specifying the reasons as to why it opts to do so. Framing of charge itself is prima facie order that the Learned 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 complained. In the self-same decision with reference to the provisions of Sections 239 and 240 of the Code the Apex Court further held;
It is pertinent to note that this section required a Magistrate to record his reasons for discharging the accused but there is no such requirement if he forms the opinion that there is ground for presuming that the accused had 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.
The aforesaid view has been re-affirmed by the Hon''ble Supreme Court in the case of Lalu Prasad v. State of Bihar reported in (2007) 1 SCC 241.
12. In view of the above, I do not find any wrong with the impugned order as passed by the Learned Magistrate whereby the charge against the petitioners have been framed. Accordingly, the first grounds on which Mr. Basu sought for quashing of the charge fails.
13. It has further been urged by Mr. Basu since the decision rendered by a two Judges Bench of the Apex Court in the case of Kanti Bhadra Saha and Anr. v. State of West Bengal (supra) is in clear conflict with the law as laid down by a three Judges Bench of the Supreme Court in the case of Century Spinning and Manufacturing Co. Ltd. v. State of Maharashtra (supra) this Court is bound by the decision of the larger Bench and in support of his contention Mr. Basu relied on the following decisions of the Apex Court in the case of
14. I have given my anxious and thoughtful consideration to the submissions made by Mr. Basu. However, I am unable to accept the contention of Mr. Basu I find both the decisions are on two different and distinct issue and there was no conflict. While in the case of Century Spinning and Manufacturing Co. Ltd. v. State of Maharashtra (supra) the Apex Court laid down the role to be played by a Court while considering the question of framing charge and held that Court must not frame charge automatically, simply because the prosecution proposed on the materials collected during investigation it would be proper for framing charge but it shall fully advert to the materials placed before it by the prosecution and shall satisfy itself whether such materials prima facie make out the offence against the accused justifying framing of charge i.e. the Court must not blindly follow the decision of the prosecuting agency. Whereas in the case of Kanti Bhadra Saha and Anr. v. State of West Bengal (supra) the issue was completely different and in that case the Apex Court only held by referring to the provisions of Section 239 and Section 240 of the Code of Criminal Procedure that while discharging an accused Court must record reason for the same but while framing charge there is no legal requirement for the Court to specify reason as to why it opts to do so. Framing of charge itself is a prima facie order that the Learned Judge has formed opinion, upon consideration of police report and other documents and hearing both sides, that there is ground for presuming that the accused has committed the offence concerned. In any event, in the case of Century Spinning and Manufacturing Co. Ltd. v. State of Maharashtra (supra) it was not an issue before the Apex Court whether at the stage of framing charge recording of reason is necessary or not as well the Apex Court has not dealt with the said issue in any manner whatsoever.
15. The next question now arises for decision whether on the evidentiary materials collected by the police and on the materials on the basis of which charge-sheet has been submitted, the Learned Court below was justified in framing charge against the present petitioner under Sections 498A/406 of the Indian Penal Code.
16. It is well settled when the Court considering the question of framing charge it is always permissible for the Court to shift and weigh the evidentiary materials on record for the limited purpose of finding out whether a prima facie case against the accused has been made out or not on the face of the evidentiary materials collected by the police during the course of investigation. At this stage court cannot embark upon an enquiry to ascertain the acceptability, reliability and sufficiency of such materials which the prosecution proposed to rely upon during the trial against the accused. It would be justified for the Court to frame charge if on the face of the materials for prosecution proposes to rely against the accused during the trial, even if, before challenged by cross-examination or rebutted by the defence evidence makes out a prima facie case. The probative value of the statement of the witness cannot be gone into at the stage of framing charge.
17. I have carefully gone through the allegations made by the complainant in the First Information Report as well as those appearing from the evidentiary material collected by the police during the course of investigation. The relevant allegations made in the FIR is quoted below;
On July 25, 2006 I compelled to leave my matrimonial home but subsequently I tried to resile the issues with my husband and his family members but my husband got infuriated and refused to compromise the matter. He threatened me with dire consequences and further assaulted and threatened me and my family members with danger to our life and limbs.
My husband has totally spoiled my life and I am under a constant mental trauma. He also refused to return the jewelleries gifted to me like gold necklace, chain, bangles etc. which was lying in my husband�s custody.
Similarly the father of the complainant as well as her mother in their statement recorded u/s 161 of the Code of Criminal Procedure categorically stated that Suvadip, the husband of their daughter did not allow her to take her gold ornaments.
18. On the face of the aforesaid allegations it cannot be said that no prima facie case has been made out against the petitioner for the offences for which charge has been framed against him. Thus, I am of the opinion that the Learned Magistrate was fully justified in framing charge as against the present petitioner.
19. This criminal revisional application has no merit and stands dismissed.
The office is directed to send down the Lower Court Records and communicate this order to the Learned Court below immediately. Urgent xerox certified copy of this judgment, if applied for, be given to the parties, as expeditiously as possible.
