Scope of Scrutiny at the stage of discharge …Supreme Court

This Judgment highlights the scope of scrutiny at the stage of discharge. 
 Supreme Court of India
R.S. Mishra vs State Of Orissa & Ors. on 1 February, 2011
Bench: J.M. Panchal, H.L. Gokhale

HELD:1.1. The provision concerning the framing of a charge is to be found in Section 228 of Cr.P.C. This Section is however, connected with the previous section, i.e. Section 227 which is concerning `Discharge’. From Section 227 it is clear that while discharging an accused, the Judge concerned has to consider the record of the case and the documents placed therewith, and if he is so convinced after hearing both the parties that there is no sufficient ground to proceed against the accused, he shall discharge the accused, but he has to record his reasons for doing the same. Section 228 which deals with framing of the charge, begins with the words "If after such consideration". Thus, these words in Section 228 refer to the `consideration’ under Section 227 which has to be after taking into account the record of the case and the documents submitted therewith. These words provide an inter-connection between Sections 227 and 228. That being so, while Section 227 provides for recording the reasons for discharging an accused, although it is not so specifically stated in Section 228, it can certainly be said that when the charge under a particular section is dropped or diluted, (although the accused is not discharged), some minimum reasons in nutshell are expected to be recorded disclosing the consideration of the material on record. This is because the charge is to be framed `after such consideration’ and therefore, that consideration must be reflected in the order. [Paras 17, 18] [357-F-G; 358-G-H; 359-A-C]

1.2. A discharge order is passed on an application by the accused on which the accused and the prosecution are heard. At the stage of discharging an accused or framing of the charge, the victim does not participate in the proceeding. While framing the charge, the rights of the victim are also to be taken care of as also that of the accused. That responsibility lies on the shoulders of the Judge. Therefore, on the analogy of a discharge order, the Judge must give his reasons atleast in a nutshell, if he is dropping or diluting any charge, particularly a serious one as in the present case. It is also necessary for the reason that the order should inform the prosecution as to what went wrong with the investigation. Besides, if the matter is carried to the higher Court, it will be able to know as to why a charge was dropped or diluted. [Para 19] [359-D-F]

1.3. 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. Further, at the stage of the framing of the charge, the Judge is expected to sift the evidence for the limited purpose to decide if the facts emerging from the record and documents constitute the offence with which the accused is charged. This must be reflected in the order of the judge. Thus it cannot be disputed that in this process the minimum that is expected from the Judge is to look into the material placed before him and if he is of the view that no case was made out for framing of a charge, the order ought to be clear and self-explanatory with respect to the material placed before him. In the present case, all that the appellant stated in his judicial order was, that on consideration of the material available in the case diary, he had found that there was no sufficient material to frame the charge under Section 302 of IPC. This is nothing but a bald statement and was clearly against the statement of the injured eye witness, and supporting medical papers on record. The appellant has not even referred to the same. He has also not stated in his order as to why he was of the opinion that the material available in the case diary was insufficient. Such a bald order raises a serious doubt about the bona fides of the decision rendered by the Judge concerned. A young person had been killed. It was not a case of grave and sudden provocation. The material on record showed that there was an injured eye witness and there was the supporting medical report. The material on record could not be said to be self- contradictory or intrinsically unreliable. Thus, there was a prima facie case to proceed to frame the charge under Section 302 IPC. The reason given for dropping the charge under Section 302 was totally inadequate and untenable, and showed a non-application of mind by the appellant to the statements in the charge-sheet and the medical record. The order does not explain as to why a charge under Section 304 was being preferred to one under Section 302 IPC. In fact, since the material on record revealed a higher offence, it was expected of the appellant to frame the charge for more grievous offence and not to dilute the same. [Paras 20, 21 and 22] [359-G-H; 360-G-H; 361-A-G]

1.4. The impugned order of the High Court deciding Revision notes that the appellant had been functioning in the rank of the District Judge from August 1991 onwards, i.e. for nearly 5 years prior to his judicial order and further states that a Judicial Officer, before being posted as an Additional Session Judge, gets experience of taking the sessions cases as Assistant Session Judge. It cannot, therefore, be said that the appellant did not have requisite experience to pass a correct legal order under Section 228 of Cr.P.C. That apart, all that the impugned order in Revision did was to suggest to the High Court Administration, that if the appellant was not yet confirmed, his probation should wait and if he was already confirmed, his performance be verified before giving him the higher scale. Since the appellant, was already confirmed in service, all that the High Court did on the administrative side was to check his record, and thereafter to deny him the selection grade. The above observation in the impugned order in Revision was a suggestion to the Administration of the High Court. It was not a case of making any adverse or disparaging remarks. Having noted that the appellant had failed in discharging his duty in framing the correct charge, and having also noted that his record was not good, the High Court could not have granted him the selection grade. The selection grade is not to be conferred as a matter of right. The record of the concerned Judge has to seen, and that having been done in the present case (in pursuance to the observations of the High Court), and having noted the serious deficiencies, the High Court had denied the selection grade to the appellant. The impugned order contained nothing but a correctional suggestion to the High Court Administration which the Administration has accepted. [Para 24] [362-C-H; 363-A]

1.5. It is only because of the note made by inspecting Judge that the cursory order passed by the appellant in the Sessions case diluting the charge against the accused came to the notice of the High Court Administration. By the time the suo-moto Revision was decided, the accused had already undergone the punishment of rigorous imprisonment of 5 years and, therefore, the Revisional Court did not deem it fit to reopen the case. The appellant cannot take advantage of this part of the judgment of the Revisional Court, to challenge the observations of the Revisional Judge making a suggestion to the High Court to scrutinize appellant’s record for the dereliction of duty on his part. The appellant was responsible for an unjustified dilution of the charge and, therefore, thorough checking of his service record was necessary which is, what was directed in the impugned order of the Revisional Court/High Court. There is no reason to interfere in the said order making certain observations and suggestions which were necessary in the facts and circumstances of the case. [Paras 25, 26] [363- B-F]

In the matter of `K’ A Judicial Officer, 2001 (3) SCC 54; V.K. Jain v. High Court of Delhi through Registrar General and Others, 2008 (17) SCC 538 and Prakash Singh Teji v. Northern India Goods Transport Company Private Limited and Anr, 2009 (12) SCC 577 – distinguished.

State of Bihar v. Ramesh Singh AIR 1977 SC 2018; Nirmaljit Singh Hoon v. State of West Bengal1973 (3) SCC 753; Chandra Deo Singh v. Prokash Chandra Bose AIR 1963 SC 1430; Niranjan Singh v. Jitendra Bhimraj 1990 (4) SCC 76 – relied on.

Case Law Reference:

2001 (3) SCC 54 distinguished Para 12

2008 (17) SCC 538 distinguished Para 13

2009 (12) SCC 577 distinguished Para 14

AIR 1977 SC 2018 relied on Para 20

1973 (3) SCC 753 relied on Para 20

AIR 1963 SC 1430 relied on Para 20

1990 (4) SCC 76 relied on Para 20

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 232 of 2005.

From the Judgment & Order dated 28.10.2002 of the High Court of Orissa in Suo Motu Criminal Revision Petition No. 367 of 1997.

Uday Gupta, D.K. Mishra, Manoj Swarup for the Appellant.

Suresh Chandra Tripathy, Janaranjan Das, Swetaketu Mishra for the

Respondents.