BHAWNA BAI versus GHANSHYAM AND OTHERS

[2019] 14 S.C.R. 422

[2019] 14 S.C.R.

BHAWNA BAI

GHANSHYAM AND OTHERS

(Criminal Appeal No. 1820 of 2019)

BDECEMBER 03, 2019

[R. BANUMATHI, .S. BOPANNA ANDHRISHIKESH ROY, JJ.]

Code of Criminal Procedure, 1973: ss.228 – Framing ofcharges – Standard of proof – Held: At the stage of framing theCcharge, the court has to see if there is sufficient ground forproceeding against the accused – While evaluating the materials,strict standard of proof is not required; only prima facie case againstthe accused is to be seen.

Code of Criminal Procedure, 1973: ss.228 – Charges framedDagainst accused-respondent under s.302 r/w s.34 IPC – Prosecutioncase was that dead body of the husband of the appellant-complainantwas found in the field of first respondent – When the appellantcame to know, she went running towards her husband’s dead body,but the son of first respondent caught hold of her and forcibly lockedEher in room in his house and did not allow her to go near thedead body of her husband – The allegations in the charge sheetsuggested that the accused-respondents had earlier quarrelled withdeceased thereby suggesting motive for the crime – Though, thebody of deceased was found in the field of first respondent-accused,he did not inform the family of deceased nor informed the policeFabout the same – Trial court framed charges under s.302 r/w s.34IPC against the accused-respondents – Accused-respondents filedrevision – High Court quashed the charges – Aggrieved complainantfiled instant appeal – Held: As per s.226, the public prosecutor isrequired to open the case before the Sessions Court by describingGthe charge brought against the accused and stating by what evidence,he proposes to prove the guilt of the accused – In this case, uponhearing the parties and considering the allegations in the chargesheet, the Sessions Judge was of the opinion that there were sufficientgrounds for presuming that the accused committed the offence

punishable under s.302 IPC r/w s.34 IPC – For framing the chargesunder s.228, the judge was not required to record detailed reasons– High Court was not right in interfering with the order of the trialcourt framing the charges against accused-respondents – Impugnedorder is set aside – Trial case is restored – Penal Code, 1860 –s.302 r/w s.34.

Allowing the appeal, the Court

HELD: 1. As per the allegations in the charge sheet, onthe date of occurrence, the accused-respondents went withdeceased to the farm of first respondent for ploughing the landwith tractor and that all the three consumed liquor together atthe place of incident. Thus, as per the allegations in the chargesheet, the deceased was last seen alive in the company of accused-respondent Nos.1 and 2. Though, the body of deceased was foundin the field of first respondent-accused, he did not inform thefamily of deceased nor informed the police about the same. Theallegations in the charge sheet suggested that accused-respondent Nos. 1 and 2 had earlier quarrelled with deceasedand thereby suggesting motive for the crime. [Para 11][427-E-H]

2. Though the circumstances alleged in the charge sheetare to be established during the trial by adducing the evidence,the allegations in the charge sheet show prima facie case againstthe accused-respondent Nos.1 and 2. The circumstances allegedby the prosecution indicate that there are sufficient grounds forproceedings against the accused. At the stage of framing thecharge, the court has to see if there is sufficient ground forproceeding against the accused. While evaluating the materials,strict standard of proof is not required; only prima facie caseagainst the accused is to be seen. [Para 12][428-A-B]3. As per Section 226 Cr.P.C., the public prosecutor isrequired to open the case before the Sessions Court by describingthe charge brought against the accused and stating by whatevidence, he proposes to prove the guilt of the accused. Forframing the charges under Section 228 Crl.P.C., the judge is notrequired to record detailed reasons. At the stage of framing the

Acharge, the court is not required to hold an elaborate enquiry;only prima facie case is to be seen. Upon hearing the parties andbased upon the allegations and taking note of the allegations inthe charge sheet, the Sessions Judge was satisfied that there issufficient ground for proceeding against the accused and framedBthe charges against the accused-respondent Nos.1 and 2. Whileso, the High Court was not right in interfering with the order ofthe trial court framing the charges against accused-respondentNos. 1 and 2 under Section 302 IPC read with Section 34 IPCand the High Court, erred in quashing the charges framed againstCthe accused. The impugned order cannot therefore be sustainedand is liable to be set aside. [Paras 13, 15, 16][428-C-D; 431-B;D-G]

Amit Kapoor v. Ramesh Chander and another (2012) 9SCC 460 : [2012] 7 SCR 988; Dinesh Tiwari v. State ofDUttar Pradesh and another (2014) 13 SCC 137 : [2014]8 SCR 207; Knati Bhadra Shah and another v. State ofWest Bengal (2000) 1 SCC 722 : [2000] 1 SCR 27 –relied on.

ECase Law Reference

FCRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.1820 of 2019.

From the Judgment and Order dated 25.02.2019 of the HighCourt of Madhya Pradesh, Bench at Indore in Cr. R. No. 402 of 2019.

GBijan Kumar Ghosh, Adv. for the Appellant.

Santosh Kumar, Shekhar Kumar, Vibhuti Sushant Gupta, MushtaqAhmad, Harsh Parashar, Ms. Tanvi Bhatnagar, Chanakya Sharma, Advs.for the Respondents.

The Judgment of the Court was delivered by

R. BANUMATHI, J.

1. Leave granted.

2. This appeal arises out of the impugned judgment and final orderdated 25.02.2019 passed by the High Court of Madhya Pradesh at IndoreBench in Criminal Revision No. 402 of 2019 in and by which the HighCourt has quashed the charges framed by the trial court/AdditionalSessions Judge against respondent Nos.1 and 2/accused Nos. 1 and 2.

3. Brief facts which led to filing of this appeal are as follows:-

On 24.12.2015, the husband of the complainant-Gopal Saran atabout 06.00 pm went saying to prepare food as he is going outside toplough the field and shall return by 09.00-10.00 pm. Even by 12.00 midnight, Gopal Saran did not return home; then his wife Bhawna Bai,appellant herein tried to contact him over his mobile; but he did not receivethe call. The appellant informed her father-in-law who tried to searchthe deceased and there was no information about the deceased. On thenext morning at about 08.00 am, the appellant-complainant and her familymembers came to know from the neighbours that Gopal Saran was lyingin the tank//hose in the field of the first respondent-Ghanshyam. Theappellant has alleged that when she tried to approach her husband thenGanesh s/o Mohanlal Kushwah prevented her going near her husbandand locked her in room and did not allow her to see her husband. Thedead body of Gopal Saran was taken to government hospital. Theappellant-complainant alleged that without informing her, post-mortemof her husband was conducted. Merg No.94 of 2015 was registered forinvestigation under Section 174 Crl.P.C.; but no case was registeredagainst any person.

4. On 31.12.2015, the appellant made written complaint beforethe Superintendent of Police, Khargaon and in spite of the same, nocase was registered. Thereafter, the complainant-appellant filed acomplaint before the Additional Chief Judicial Magistrate (ACJM),Kasrawad under Section 156(3) Crl.P.C. on 12.04.2016. The learnedACJM accepted the complaint and directed the Officer-in-Charge, P.S.Kasrawad to register the FIR under Section 302 IPC and proceed withthe investigation. FIR was registered in Crime No.145 of 2016 under

ASection 302 IPC read with Section 34 IPC. Challenging the direction ofACJM to register FIR, the State of Madhya Pradesh has filed revisionbefore the Additional Sessions Judge, Mandleswar in Criminal RevisionNo.300051 of 2016. The said revision petition was dismissed vide orderdated 27.10.2016.

B5. Respondent Nos.1 and 2/accused Nos.1 and 2 have prayed foranticipatory bail and the same was dismissed by the learned SpecialJudge SC/ST (Prevention of Attrocities) Act, West Nimad, Mandleswarvide order dated 10.09.2018. Being aggrieved, respondent Nos.1 and 2filed appeal before the High Court and the High Court had grantedanticipatory bail to them vide order dated 19.09.2018. Against the grantCof anticipatory bail, the appellant-complainant has filed SLP(Crl.) DiaryNo.39785/2018 before the Supreme Court in which the Supreme Courtby order dated 14.12.2018 has issued notice. In the meanwhile, chargesheet has been filed against the accused-respondent Nos.1 and 2 underSection 302 IPC read with Section 34 IPC on 26.09.2018. Upon hearingthe prosecution and also the respondents-accused, vide order datedD12.12.2018, the learned Second Additional Sessions Judge, Mandleswarhas found that there are sufficient grounds for proceeding against theaccused and framed the charges against the accused-respondent Nos.1and 2 under Section 302 IPC read with Section 34 IPC.

6. Challenging the order of framing charges, respondent Nos.1Eand 2 have filed revision before the High Court. Holding that, whileframing charges, the court should apply the judicial mind and should givereasons in concise manner for framing charges and that the trial courthas failed to apply its mind while framing charges, the High Court videimpugned order dated 25.02.2019 has quashed the charges againstFrespondent Nos.1 and 2 and discharged them. Being aggrieved, theappellant-complainant has preferred this appeal.

7. Mr. Bijan Kumar Ghosh, learned counsel appearing for theappellant has submitted that there are circumstances like “last seentogether”; “recovery of dead body”; “not informing the family of thevictim immediately upon discovery of dead body”; “not informing theGpolice”; “recovery of other belongings of dead body including tractor”and such other circumstances connecting the accused-respondent Nos.1and 2 with the death of Gopal Saran and considering those circumstances,the learned Second Additional Sessions Judge satisfied himself that thereare sufficient ground for framing charges against the accused. The learnedHcounsel submitted that when the trial judge has so satisfied that there

are sufficient grounds for framing the charges against the accused, inexercise of its revisional jurisdiction, the High Court ought not to haveinterfered and quashed the charges framed by the trial court.

8. Mr. Harsh Parashar, learned counsel appearing for the State ofMadhya Pradesh reiterated the contentions and submitted that theaverments in the charge sheet and the circumstances indicated thereonare sufficient to prima facie link respondent Nos.1 and 2 to theoccurrence and while so, the High Court erred in setting aside the orderof the Second Additional Sessions Judge and quashing the charges.

9. Mr. Santosh Kumar, learned counsel appearing for the accused-respondent Nos.1 and 2 submitted that even if the averments in thecharge sheet are accepted, no prima facie case is made out against theaccused-respondent Nos.1 and 2 and there was non-application of judicialmind by the learned trial judge and considering the facts andcircumstances of the case, the High Court rightly quashed the chargesframed against the accused-respondent Nos.1 and 2 and the impugnedorder therefore, does not suffer from any infirmity.

10. We have carefully considered the submissions and perusedthe impugned order and materials on record.

11. As per the allegations in the charge sheet, on the date ofoccurrence i.e. 24.12.2015, the accused-respondents Ghanshyam andBhagwan went with deceased Gopal Saran to the farm of Ghanshyamfor ploughing the land with tractor and that all the three consumed liquortogether at the place of incident. Thus, as per the allegations in the chargesheet, the deceased was last seen alive in the company of accused-respondent Nos.1 and 2. As per the statement of Usha, wife ofGhanshyam and Nisha, daughter of Ghanshyam, the accused-respondentNos.1 and 2 had returned home at 09.00 pm in the night of 24.12.2015.Though, the body of deceased was found in the field of respondent-accused Ghanshyam, he did not inform the family of deceased GopalSaran nor informed the police about the same. In the complaint filed bythe appellant before the Magistrate, the appellant has alleged that “whenshe went running near to her husband’s dead body, Ganesh son ofGhanshyam caught hold of her and forcibly locked her in roomin his house and did not allow her to go near the dead body of herhusband”. The allegations in the charge sheet also suggest that theaccused-respondent Nos.1 and 2 had earlier quarrelled with deceasedGopal Saran and thereby suggesting motive for the crime.

A12. Though the circumstances alleged in the charge sheet are tobe established during the trial by adducing the evidence, the allegationsin the charge sheet show prima facie case against the accused-respondent Nos.1 and 2. The circumstances alleged by the prosecutionindicate that there are sufficient grounds for proceedings against theaccused. At the time of framing the charges, only prima facie case is toBbe seen; whether case is beyond reasonable doubt, is not to be seen atthis stage. At the stage of framing the charge, the court has to see ifthere is sufficient ground for proceeding against the accused. Whileevaluating the materials, strict standard of proof is not required; onlyprima facie case against the accused is to be seen.C

13. Chapter XVIII Crl.P.C. deals with “Trial before Court ofSession”. As per Section 226 Crl.P.C., the public prosecutor is requiredto open the case before the Sessions Court by describing the chargebrought against the accused and stating by what evidence, he proposesto prove the guilt of the accused. Section 227 Crl.P.C. deals with dischargeDand it reads as under:-

“227. Discharge.—If, upon consideration of the record of thecase and the documents submitted therewith, and after hearingthe submissions of the accused and the prosecution in this behalf,the Judge considers that there is not sufficient ground forEproceeding against the accused, he shall discharge the accusedand record his reasons for so doing.”

14. Considering the scope of Sections 227 and 228 Crl.P.C., inAmit Kapoor v. Ramesh Chander and another (2012) 9 SCC 460,the Supreme Court held as under:-F“17.

“17. Framing of charge is an exercise of jurisdiction by the trialcourt in terms of Section 228 of the Code, unless the accused isdischarged under Section 227 of the Code. Under both theseprovisions, the court is required to consider the “record of thecase” and documents submitted therewith and, after hearing theGparties, may either discharge the accused or where it appears tothe court and in its opinion there is ground for presuming that theaccused has committed an offence, it shall frame the charge.Once the facts and ingredients of the section exists, then the courtwould be right in presuming that there is ground to proceed againstthe accused and frame the charge accordingly. This presumptionHis not presumption of law as such. The satisfaction of the courtin relation to the existence of constituents of an offence and thefacts leading to that offence is sine qua non for exercise of suchjurisdiction. It may even be weaker than prima facie case. Thereis fine distinction between the language of Sections 227 and 228of the Code. Section 227 is the expression of definite opinionand judgment of the Court while Section 228 is tentative. Thus, tosay that at the stage of framing of charge, the Court should forman opinion that the accused is certainly guilty of committing anoffence, is an approach which is impermissible in terms of Section228 of the Code.

19. At the initial stage of framing of charge, the court is concernednot with proof but with strong suspicion that the accused hascommitted an offence, which, if put to trial, could prove him guilty.All that the court has to see is that the material on record and thefacts would be compatible with the innocence of the accused ornot. The final test of guilt is not to be applied at that stage. Wemay refer to the well-settled law laid down by this Court in Stateof Bihar v. Ramesh Singh (1977) 4 SCC 39: (SCC pp. 41-42,para 4)

“4. Under Section 226 of the Code while opening the case forthe prosecution the Prosecutor has got to describe the chargeagainst the accused and state by what evidence he proposesto prove the guilt of the accused. Thereafter comes at theinitial stage the duty of the court to consider the record of thecase and the documents submitted therewith and to hear thesubmissions of the accused and the prosecution in that behalf.The Judge has to pass thereafter an order either under Section227 or Section 228 of the Code. If ‘the Judge considers thatthere is no sufficient ground for proceeding against the accused,he shall discharge the accused and record his reasons for sodoing’, as enjoined by Section 227. If, on the other hand, ‘theJudge is of opinion that there is ground for presuming that theaccused has committed an offence which— … (b) isexclusively triable by the court, he shall frame in writing acharge against the accused’, as provided in Section 228. Readingthe two provisions together in juxtaposition, as they have got tobe, it would be clear that at the beginning and the initial stage

of the trial the truth, veracity and effect of the evidence whichthe Prosecutor proposes to adduce are not to be meticulouslyjudged. Nor is any weight to be attached to the probable defenceof the accused. It is not obligatory for the Judge at that stageof the trial to consider in any detail and weigh in sensitivebalance whether the facts, if proved, would be incompatiblewith the innocence of the accused or not. The standard of testand judgment which is to be finally applied before recording afinding regarding the guilt or otherwise of the accused is notexactly to be applied at the stage of deciding the matter underSection 227 or Section 228 of the Code. At that stage the courtis not to see whether there is sufficient ground for convictionof the accused or whether the trial is sure to end in hisconviction. Strong suspicion against the accused, if the matterremains in the region of suspicion, cannot take the place ofproof of his guilt at the conclusion of the trial. But at the initialstage if there is strong suspicion which leads the court tothink that there is ground for presuming that the accused hascommitted an offence then it is not open to the court to saythat there is no sufficient ground for proceeding against theaccused. The presumption of the guilt of the accused which isto be drawn at the initial stage is not in the sense of the lawgoverning the trial of criminal cases in France where theaccused is presumed to be guilty unless the contrary is proved.But it is only for the purpose of deciding prima facie whetherthe court should proceed with the trial or not. If the evidencewhich the Prosecutor proposes to adduce to prove the guilt ofthe accused even if fully accepted before it is challenged incross-examination or rebutted by the defence evidence, if any,cannot show that the accused committed the offence, thenthere will be no sufficient ground for proceeding with the trial.An exhaustive list of the circumstances to indicate as to whatwill lead to one conclusion or the other is neither possible noradvisable. We may just illustrate the difference of the law byone more example. If the scales of pan as to the guilt orinnocence of the accused are something like even at theconclusion of the trial, then, on the theory of benefit of doubtthe case is to end in his acquittal. But if, on the other hand, it isso at the initial stage of making an order under Section 227 or

Section 228, then in such situation ordinarily and generallythe order which will have to be made will be one under Section228 and not under Section 227.””

15. After referring to Amit Kapoor, in Dinesh Tiwari v. State ofUttar Pradesh and another (2014) 13 SCC 137, the Supreme Courtheld that for framing charge under Section 228 Crl.P.C., the judge is notrequired to record detailed reasons as to why such charge is framed.On perusal of record and hearing of parties, if the judge is of the opinionthat there is sufficient ground for presuming that the accused hascommitted the offence triable by the Court of Session, he shall framethe charge against the accused for such offence.16. As discussed above, in the present case, upon hearing theparties and considering the allegations in the charge sheet, the learnedSecond Additional Sessions Judge was of the opinion that there weresufficient grounds for presuming that the accused has committed theoffence punishable under Section 302 IPC read with Section 34 IPC.The order dated 12.12.2018 framing the charges is not detailed order.For framing the charges under Section 228 Crl.P.C., the judge is notrequired to record detailed reasons. As pointed out earlier, at the stageof framing the charge, the court is not required to hold an elaborateenquiry; only prima facie case is to be seen. As held in Knati BhadraShah and another v. State of West Bengal (2000) 1 SCC 722, whileexercising power under Section 228 Crl.P.C., the judge is not requiredrecord his reasons for framing the charges against the accused. Uponhearing the parties and based upon the allegations and taking note of theallegations in the charge sheet, the learned Second Additional SessionsJudge was satisfied that there is sufficient ground for proceeding againstthe accused and framed the charges against the accused-respondentNos.1 and 2. While so, the High Court was not right in interfering withthe order of the trial court framing the charges against the accused-respondent Nos.1 and 2 under Section 302 IPC read with Section 34IPC and the High Court, in our view, erred in quashing the chargesframed against the accused. The impugned order cannot therefore besustained and is liable to be set aside.

17. In the result, the impugned judgment dated 25.02.2019 passedby the High Court of Madhya Pradesh at Indore Bench in CriminalRevision No.402 of 2019 is set aside and this appeal is allowed. SessionsTrial Case No.ST/150/2018 is restored and Second Additional Sessions

AJudge, Mandleswar, West Nimad, Madhya Pradesh shall proceed withthe matter in accordance with law. We make it clear that we have notexpressed any opinion on the merits of the matter.

Devika Gujral

Appeal allowed.