Topic: State of Bihar vs. Ramesh singh - Discharge application under 239 CrPC, 498a

State of Bihar vs. Ramesh singh
Equivalent citations: 1977 AIR 2018, 1978 SCR (1) 257 - Bench: Untwalia, N.L., Shingal, P.N. - Citation: 1977 AIR 2018 1978 SCR (1) 257, 1977 SCC (4) 39 - Citator Info: R 1979 SC 366 (8), F 1980 SC 52 (18), F 1980 SC1780 (4), RF 1986 SC2045 (45), RF 1990 SC 121 (9), RF 1990 SC1962 (6) - Date of Judgment: 02/08/1977

ACT:

Criminal Procedure Code 1973-Sections 226, 227 and 228. Tests for discharging an accused-Presumption of innocence- Difference between case for     conviction or     case     for proceeding further.

HEADNOTE:

At 3.00 A.M. on the 26th of November 1973 Smt.     Tara Devi, wife of respondent, a professor of Economics, in Munshi Singh College, Motihari in State of Bihar, was found burning in the, Kitchen of their house. She died as a result of excessive burn injuries on her person.    The brother of    Tara Devi rushed to the spot and found that respondent and     his brother were standing near the burning body of Tara Devi but were not taking any steps to extinguish the fire. He lodged the F.I.R. at Police Station charging the respondent     for having committed the offences under s. 302 and 201 of Penal Code. Charge sheet was submitted against him by the police and the case was committed to Sessions Court for trial of the respondent u/s. 209 of Cr.    P.C. 1973.

The Sessions Judge discharged the accused under s. 227 of Cr. P. Code    1973 on the ground that there was     not sufficient ground for proceeding with     the trial against respondent and he was discharged in accordance with section

227.

The State of Bihar went in revision before Patna High Court, which was dismissed by the High Court.

Allowing the appeal by special leave,

HELD :     (1) Under s. 226 of the Code the prosecutor while opening the case has got to describe the charge against     the accused and State by what evidence he proposes to prove     the guilt of the accused.     Thereafter, comes it    the initial stage,    the duty of the Court to consider the record of     the case and the documents submitted therewith. The Judge     has then to pass an order either u/s. 227 or u/s. 228 of Code. [259C, D]

If 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 as enjoined by s. 227.     If on the other hand, the Judge is of opinion    that there is ground for presuming that the accused has committed an offence

which

(b)is exclusively triable by the court, he shall frame    in writing a charge against the accused as provided in s. 228. Reading     the two provisions together in juxta a position at the initial stage of the trial, the truth, veracity     and effect    of the evidence which the prosecutor    proposes to adduce are not to be meticulously judged. Nor is any weight to be    attached to the probable defence of the accused. [259E-F]

The standard of test and judgment which is to     be finally applied     before recording a finding regarding the guilt or otherwise of accused, is not exactly to be applied at     the stage of deciding the matter under s. 227 and 228 of     the Code. [259G]

Strong    suspicion against the accused, if it remains in     the region of suspicion, cannot' take the place of proof of     his guilt at the conclusion of trial. But at the initial stage, if there is a strong suspicion which leads the court to think that there is a 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. It is only for the purpose of deciding 258

prima facie whether the court should proceed with the trial or no,,. The evidence which the Prosecutor    proposes to adduce    to prove the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, cannot show    that the accused committed the offence, then there will be no sufficient ground for proceeding with     the trial. [259H, 260A-B]

If the scales of pan as to the, guilt or innocence of     the accused     are something like even, at the conclusion of     the trial,    then, on the theory of benefit of doubt the case is to end in his acquittal. But if on the other hand, it is so at the initial stage of making an order under s. 227 or s. 228 then in such a situation ordinarily and generally     the order which will have to be made will be one under s.     228 and not under s. 227. [260C-D]

Nirmal Jeet Singh Hoon v. State of West Bengal (1973) 2     SCR 66 has followed Chandra Deo Singh v. Prakash Chandra    Bose (1964)    3 SCR 639 wherein it was laid down that the test is whether there is a sufficient ground for proceeding and not, whether there is a sufficient ground for conviction. After setting aside the orders of High Court and Sessions Court, the Court directed that appropriate charge or charges be framed against the respondent and trial to     proceed in accordance with law. [261H]

The Court observed that nothing stated in the    judgment is meant to prejudice in the least the case of either party at the trial. [259C]

JUDGMENT:

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 51 of 1977.

Appeal    by Special Leave from the Judgment and    Order dated 18-2-1976 of the Patna High Court in Crl. Rev.     No. 699/75. U. P. Singh and S. N. Jha, for the, Appellant. B. P. Singh and A. K. Srivastava, for the Respondent. The following Judgment of the Court was delivered by UNTWALIA, J.-The respondent in this appeal by special leave is a Professor of Economics     in Munshi Singh College, Motihari in the State of Bihar. At about 3.00 A.M. on     the 26th of November, 1973, Smt. Tara    Devi, wife of     the respondent, was found burning in the kitchen of his house. A hulla was raised. Chandreshwar Prasad Singh, brother of Tara Devi, who is a Professor of Botany in the said College and lives nearby came to the scene of occurrence. It is said he found the respondent and his brother standing    near the burning body of Tara Devi but not taking any steps to extinguish the fire. Tara Devi died apparently as a result of the     extensive burn injuries on her person. A First Information Report was lodged by Chandreshwar Prasad Singh at the     Police Station charging the respondent     for having committed the    offences under sections 302 and 201 of     the Penal Code. Eventually Charge-Sheet was submitted against him by the police and the case was committed to the Court of Sessions for trail of the respondent under section 209 of the Code of Criminal Procedure, 1973-hereinafter called     the Code.

When the case     was opened in the Court of the IIIrd Additional Sessions Judge at Motihari in Sessions Trial     No. 66/1975     by the Additional Public Prosecutor in accordance with section 226 of the Code, a plea was raised on behalf of the respondent that there was not any sufficient ground     for proceeding with the trial against him and he 259

should    be discharged in accordance with section 227.     The Additional Sessions Judge accepted the plea and discharged the accused by his order dated April 30, 1975.    The State of Bihar the appellant in this appeal went in revision before the Patna High Court to assail the order aforesaid of     the Sessions Court.     The High Court by its order dated the    18th February, 1976 dismissed the revision. Hence this appeal. It is neither necessary nor advisable for us to mention in any great detail the facts of the prosecution case against the respondent     or refer to all the     materials and     the evidence which     may be produced by the     prosecutor when a trial proceeds in the Sessions Court.    Unnecessary details in that regard have got to be avoided so that it may     not prejudice either the prosecution case of the appellant or the defence of the respondent.    Since for the brief reasons to be    stated hereinafter we are going to set aside     the orders    of the Courts below and direct the trial to proceed against     the respondent, we would like to caution    that nothing which may have to be said in support of our order in this judgment is meant and should be understood to prejudice in the least the case of either party at the trial. Under section 226 of the Code while opening the case for the prosecution the Prosecutor has got to describe     the charge against     the accused and state by what evidence he proposes to prove the guilt of the accused. Thereafter comes at     the initial     stage the duty of the Court to consider the record of the     case and the documents submitted therewith and to hear the submissions of the accused and the prosecution in that behalf.    'The Judge has to pass thereafter an order either    under section 227 or section 228 of the Code.     If "the Judge consider that there is not. sufficient ground for proceeding against the accused, he shall discharge     the accused and record his reasons for so doing", as enjoined by section     227.    If, on the other hand,     "the Judge is of opinion     that there, is ground for presuming. that     the accused has committed an offence which-

(b)is exclusively triable by the Court, he shall frame in writing     a charge against the accused'-', as provided in section     228. Reading the two provisions together in juxta position, as they have got to be, it would be clear that at the beginning and the initial stage of the trial the truth, veracity and effect of the evidence which the Prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be attached to the probable defence of     the accused. It is not obligatory for the Judge at that stage of the     trial    to consider in any detail and    weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not.     The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter under section 227 or section 228 of     the Code. At that stage the Court is not to 'see whether there is sufficient    ground    for conviction    of the     accused or whether the trial is sure to end in his conviction. Strong suspicion against the accused, if the matter remains in     the region    of suspicion, cannot take the place of proof of     his guilt at the conclusion of the trial. But at the 260

initial stage if there is a strong suspicion 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. The    presumption of     the guilt of the accused which is to be drawn at the, initial stage is not in the sense of the law governing the trial of criminal cases in France where the accused is presumed to be guilty    unless the contrary is proved. But it is only     for the purpose of deciding prima facie whether the Court should proceed     with the trial or not. if the evidence which     the Prosecutor proposes to adduce to prove the guilt of     the accused even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding    with the trial. An exhaustive list of the circumstances to indicate as to what will lead to one conclusion or the other is neither possible nor advisable. We may just illustrate the difference     of the law by one more example. If     the scales    of pan as to the guilt or innocence of    the accused are something    like even at the conclusion of    the, trial, then, on the theory of benefit of doubt the case is to     end in his acquittal. But, if, on the other hand, it is so at the initial stage of making an order under section 227 or section     228, then in     such a situation ordinarily     and generally the order which will have to be made will be     one under section 228 and not under section 227. In Nirmaljit Singh Hoon v. The State of West Bengal and     an- other(1)-Shelat, J. delivering the judgment on behalf of the majority for the Court referred at page 79 of the report to the earlier decisions of this Court in Chandra Deo Singh v. Prakash     Chandra Bose(2) where this Court was held to    have laid down with reference to the similar provisions contained in sections 202 and 203 of the Code of Criminal Procedure, 1898 "that the test was whether there was sufficient ground for proceeding and not whether there was sufficient ground for conviction, and observed that where there was prima facie evidence, even though the person charged of an offence in the complaint might have a defence, the matter had to be left to be decided by the    appropriate forum at     the appropriate stage and     issue of a process could not be refused." Illustratively, Shelat J, further added "Unless, therefore, the Magistrate finds that the evidence led before him is self-contradictory, or intrinsically untrustworthy, process cannot be refused if that evidence makes out a prima facie case."

The fact that Tara Devi died an unnatural death and there were burn injuries on her person does not seem to be in doubt or dispute. The question to be decided at the trial would be whether the respondent, as is the prosecution case, had murdered her and set fire to her body or    whether     she committed suicide by    herself setting fire to     , it    This undoubtedly is a serious matter for decision at the trial. But at the stage of framing the charge, copious reference to Modi's    Medical     Jurisprudence and judging the postmortem report of the Doctor who performed the autopsy over the dead body of the lady meticulously was not quite justified as has been done by the Trial Judge

(1) [1973] 2 S.C.R. 66.

2. [1964] 3 S.C.R. 629.

261

According to the persecution case the respondent was in love with one of his girl students, named, Nupur Ghosh and    this led to the serious differences between the respondent     and his wife, the unfortunate Tara Devi, inducing the former to clear the path of his misadventure in the manner alleged by the prosecution. On the other hand, the defence seems to suggest that the 'alleged love-affair of the respondent     led Tara Devi to commit suicide. Whether the respondent will be able to prove his defence at the final stage of the trial may not be of much consequence.     Surely the prosecution will have to prove     its case beyond any reasonable doubt. Although at the time of the alleged occurrence were present in the house of the respondent his brother, his brother's wife, and children the prosecution does not seem to be in possession of any oscular testimony of an eye witness of the occurrence. The case will largely, rather, wholly, depend upon the circumstantial evidence. A stricter     proof    will have to be applied for judging the guilt of the accused with reference to the various circumstantial evidence against him. The at this stage the Additional Sessions Judge was not right when he said-"it appears that there     is neither direct    evidence nor any circumstantial evidence to connect the accused with the alleged murder of Tara Devi".' He    also ought not to have referred to the varying opinions of     the Circle Inspector and the Superintendent of Police, Motihari as to the submission of Charge-Sheet against the respondent. Apart from some other circumstances, as it appears,     the prosecution proposes to prove in this case, and whether it will succeed in proving them or not is a different matter, the High Court has enumerated three circumstances in     its impugned order. We may just add, and that is only for     the purpose of a cursory observation for deciding the matter at this stage, that the story of assault on Tara Devi by     the respondent a day prior to the occurrence is perhaps sought to be    proved by the evidence of Chandreshwar     Singh,     the informant, and it seems, he would also try to say, rightly or wrongly, that at    the time of the said    assault     the respondent had     given her a threat to kill her. The    High Court felt persuaded    to take the view that the three circumstantial     facts,     even if proved, would not     be incompatible with the innocence of the accused and    then added "There may be strong suspicion against the opposite party,    but the three     circumstances    which I have    just mentioned above, cannot be said to be incompatible with     the defence     of the accused." The said observation of     the High Court is not quite apposite in the background of the law which we have     enunciated above with reference to the provisions of sections 227 and 228 of the Code. For the reasons stated above, we set    aside the impugned orders    of the High Court and the Sessions Court and direct that appropriate charge or charges will be framed against the respondent     and the trial     shall    proceed     further in accordance with the law.

Appeal allowed.