KANTI BHADRA SHAH AND ANR versus THE STATE OF WEST BENGAL

KANTI BHADRA SHAH AND A."IR.

THE STATE OF WEST BENGAL JANUARY 5, 2COO

[KT. THOMAS A."ID D.P. MOHAPATRA, JJ.]

Code of Criminal Procedure, 1973.

Sectiom~240 and 239--Framing of charge-Legal requirement of pass-ing reasoned order by the Magistrate-As per section 239 Magistrate is to record reasons in case of discharging the accused--Held, if Magistrate is to frame the charge there is no legal requirement for him to write an order showing reasons for framing charge against the accused.

charge sheet was filed before the Metropolitan Magistrate against appellants for offences under sections 454 and 380 and 1208 of the Indian Penal Code. The Magistrate issued process to the accused and after bearing framed charges against them. Thereafter, the Magistrate dis-missed the petition filed by the appellants for discharging them. Aggrieved by the order, appellants filed petition for quashing the charge before the High Court. The High Court quashed the charges framed but directed the Magistrate to consider again whether the same charges could be framed against appellants afresh. Hence, this appeal.

Dismis~ing the appeal, this Court

HELD : l.l. Section 239 Cr. P.C. requires Magistrate to record his reasons for dbcharging the accused but there is no such requirement if the Magistrate forms the opinion that there is ground for presuming that the accused had committed the ommce which he is competent to try. In such situation he is only required to frame charge in writing against the accused. (31-D]

1.2. Framing of charge itself is prima facie order that the trial judge has formed the opinion, upon considering the police report and other documents and after hearing both sides, that there is ground for presum-ing that the accused has committed the offence. Therefore, the already burdened trial courts should not be further burdened with such an extra

wor!t. Time has reached to adopt all possible measures to expedite the court procedures and to chalk out measures to avert all roadblocks causing avoidable delays. If Magistrate is to write detailed orders at different stages merely because the counsel would address arguments at all stages, the snail paced progress of proceedings in trial courts would further be slowed down. [30-F; 31-H; 32-A]

1.3. It is clear from Section 245 that in cases instituted otherwise than on police report the Magistrate is required to write an order showing the reasons only if he is to discharge the accused. 31-E]

1.4. In the instant case as the Metropolitan Magistrate has chosen to frame the charge, the High Court, when moved by the accused for quashing of the charge, could have re-examined the records to consider whether the charge framed was sustainable or not. If the High Court decides to quash the charge it is open to the High Court to record the reasons thereof. The present order of the High Court is one of setting aside the charge without stating any reason with the direction to the magistrate to condsider the materials once again and then to frame charge for the same offence. This is simply to repeat what the Metropolitan Magistrate had done once at the first instance and it \l'ould be adding an unnecessary extra work on the trial court. However, the respondent has not challenged the order of High Court. Hence, the impugned order of the High Court cannot be set-aside and it is left to the Metropolitan Magistrate to exercise his functions under Section 239 or 240 of the Code. [32-D-G]

CRIMINAL APPELLATE JURISDIL!ION: Criminal Appeal No. 5 of 2000.

From the Judgment and Order dated 5. 7.99 of the Calcutta High Court in C.R.R. No. 1041 of 1999.

S.B. Sanyal, A.P. Srivastava, (Manoj Kr. Mishra) for N.S. Bisht for the Appellants. G·

The Judgment of the Court was delivered by

THOMAS, J. Leave granted.

Though the appellants succeeded in the High Court their grievance still persists as they are not out of woods now. Appdlants approached the

K. B. SHAH v. STATE [THOMAS, J.;

High Court to quash the charge framed again~t tht:m by Metropolit<!Il Magistrak. The High Court quashed it, but directed the Magistrate to consider again whether the same charges could be framed against appel-lants afresh.

We heard :earned counsd for thL: appellants, but we did not find it necessary to hear the sole respondent (State of West Bengal) as this appcal can be disposed of even without the aid of such arguments.

On the basis of complaint lodged with the Police Station, Burra Bazar (Calcutta) an investigation was conducted by the police and the charge sheet was fikd before the Metropolitan Magistrak, Calcutta, against appellants and ;ome other persons for offences under Sections 454, 380 and 120B of the Indian penal Code. The Magistrate issued process to the accused and after hearing them charge was framt:d against them for the said offences. While framing the charge the Magistrak had as per ordt:r dated 6.3.1999, dismissed the petition filed by the accused for dis-charging them. Appellants thereafter moved the High Court for quashing the charge.

The Metropolitan Magistrate who framed the charge opted to write short order presumably for dismissing the petition filed by the appellants for discharging them. The Magistrate stated in the order thus :

''The Investigating Officer has submitted charge sheet against the four accused persons after completion of the investigation under Sections 454, 380, 1208 I.P.C. Hence prima facie the case is established against the accused persons under those Sections. There is nothing on behalf of the accused persons save and except petition:·

learned Single Judge of the High Court who set a:.ide the afon:said order remarkt:d that it was not discernible from the order of the Magistrate that he had taken into consideration the charge-sheet and the other papers submitted therewith for satisfying himself as to whether there is prima acie case against the accused persons for the aforesaid offences. This is what the karned Single Judge observed :

'It is true that the language in which the impugned order is passed is not happy one. That I am not sure wht:ther the learned

(2COOl 1 S.C.R.

SUPREME COURT Rf'.PORTS

Magistrate applied his mind to the facts and circumstances of the· case and took the pain to satisfy himsdf from the materials dis-closed by the charge sheet and other papers submitted therewith as to whether prim acie case was made out against the ac1;used persons for framing charges under the aforesaid penal provisions."

After obsr:rving thus learned Singlt: Judge expressed his he!ple~sm:ss m supporting the order framing charges against the appellants. The \.fetropolitan Magistrate was thereupon directed to peruse the charge-sheet along with other papers submitted to him and satisfy himself again as to the existence of prim acie case against the accused. Tht: fi,rther directions given by the:: learned Single Judge reads thus :

"If he decides to frame charge upon such satisfaction bast.d on perusal of the; charge-sheet and other papers submitted therewith, the learned Magistrak must record the fact of such perusal and his satisfaction, only then he shall proceed to frame the charge. If on the othc::r hand upon pt:rusal of the aforesaid documents the learned Magistrate finds that the papers do not disclose any prima acie case against the petitioner for framing charges, it shull be open to him to discharge the petitioners from the case."

We wish to point out that if the trial court decides to frame charge there:: is no legal requirc::ment that he should pass an order specifying the reasons as to why he opts to do so. Framing of charge itself is prim acie order that the trial judge has formed the opinion, upon consideration of the police report and other documents and after hearing both side~, that there is ground for presuming that the accustd has committed the offence concerned. Chapter XIX deals with provisions for trial of warrant cases instituted on police rtport. Section 239 reads thus :

"239. When accused shall be discharg.:d. - (1) If, upon consid.:ring 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 con-siders the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing."

The said Section shows that the Magistrate is obliged to n:curd his reasons if he decides to discharge the accused. The next section (Section 240} reads thus :

"'240. Framing of charge - (1) If, upon such consideration, examina-tion, 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 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.''

It is pertinent to nute that this section required Magistrate to record his reasons for discharging the accused but there is no such requirement if he forms the upinion that there is ground for presuming that the accw.ed had committed the offence which he is competent to try. In such situation he is only required to frame charge in writing against the accused.

Even in cases instituted otherwise than on police report the Magistrate is rtquired to write an order showing the reasons only if ht: is to discharge the accusi::d. This is clear from Section 245. As per first sub- section of Section 245, if magistrate, after taking all the evidence considers that no case against the accused has been made out which if unrebutted would warrant his conviction, he shall discharge the accused. As per sub-section (2) the Magistrate is t:mpowered to discharge the accused at any previous stage of the case if he considers the charge to be groundless. nder both sub-sections he is obliged to n:cord his reasons for doing so. In this context it is pertinent to point out that even in trial before court of session, the judge is requin:d to record reasons only if he decides to discharge the accused. (vi de Section 227 CJf the Code). But if he is to frame the charge he may do so without recording his reasons for showing why he framed the charge.

If there is no legal requirement that the trial court should write an order showing the n:asons for framing charge, why should the already burdened trial Courts be further burdened with such an extra work. The time has reached to adopt all possible measures to expedite t!ie the court

[2000J 1 S.C.R.

procedures and to chalk out measures to avert all roadblocks causing avoidable delays. If Magistrate is to write detailed orders at difforcnt stages merely because the counsel would address arguments at all stages, the snail paced progress of proceedings in trial courts would further be slowed down. We are coming across interlocutory orders of Magistrates and Sessions Judges running into several. pages. We can appreciate if such detaikd order has been passed for cuhninating the proceedings before them. But it is quik unnecessary to write detailed orders at other stages, such as issuing process, remanding the accused to custody, framing of charges, passing over to next stage in the trial. It is salutary guideline that when orders rejecting or granting bail are passed, the Court should avoid expressing one way or other on contentious issues, except in cases such as those falling within Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985.

In the present case as the Metropolitan Magistrate has chosen to frame the charge, the High Court, when moved by the accused for quash .. ment of the charge, could have re-examined the records to consider whether the charge framed was sustainable or not. If the High Court decides to quash tht: charge it is open to the High Court to record the reasons thereof. The: present order of tht: High Court is ont: of setting asidt: the charge without stating any reason. But tht: direction to the Magistrate to consider the materials once again and then to frame r.:harge for the same offence (if the Magistrate reaches the opinion that there is ground for presuming the commission of offence) is simply to repeat what the Metropolitan Magistrate had done once at the first instance. To ask him to do the same thing over again is adding an unnecessary extra work on the trial court. Be that as it may, the State has not challenged the order of the High Court. Hence we are not in posi.tion to set asi.de the impugned order of the High Court. We leave the order as such by making the aforestatt:d observations. We leave it to the Metropolitan Magistrate to exercise his functions under Section 239 or 240 of the Code as he deems fit in the light of the observations made above.

The appeal is accordingly dismissed.

Appt:al dismissed.