Duty Of TRIAL Court: Without fully adverting to the material on the record it must not blindly adopt the decision of the prosecution

13. The High Court then considered the scope and effect of Section 251-A, Criminal P.C. After adverting to some reported cases and comparing that section with Sections 207-A and 209, Criminal P.C. it took the view that under Section 251-A(2) the accused could only be discharged if, to quote its own words “no reasonable persons could come to the conclusion that there was any ground whatsoever to sustain the charge against the accused” The High Court concluded that the charge against the accused in this case could not be said to be groundless if it took the counsel five days to convince the trial Magistrate that it was so, and it took two and a half days for the counsel to attempt to convince the High Court that the charge was groundless. That Court, however, did not base its decision on this ground alone. In its opinion all the documents referred to in Section 207-A, Criminal P.C. were before the Magistrate who had, after a detailed scrutiny, written a lengthy judgment, but without discussing the statements of witnesses recorded by the Police under Section 161, Criminal P.C. This was considered to be one infirmity which exposed the order of discharge to attack on revision. In the High Court the counsel for the accused did not submit, that the Deviation Order was retrospective in the sense that it condoned the offence: that order was contended to be retrospective because the mill was told that exemption would be granted if certain conditions were satisfied and there was, therefore, no offence committed. Though the High Court did not consider this submission to be frivolous or liable to be lightly brushed aside, that Court was equally unable to hold that no reasonable person could possibly take a contrary view. This was one of the grounds on which the High Court did not agree with the order of discharge. The High Court further observed that the trial Court was not called upon at this initial stage of the proceeding to decide finally whether on a true construction of the notification, the circular letter and the correspondence, there would, on certain conditions being satisfied, be an exemption from the operation of the control order and there would therefore, be no offence at all. This question, according to the High Court, required a full argument at the hearing of the case, after the framing of the charge. In expressing a final opinion at that stage the Magistrate had in the view of the High Court, exceeded his jurisdiction under Section 251-A(2). Similarly, on the question of mens rea also a contrary view was considered by the High Court to be not only possible but highly probable and for this reason it did not agree with the learned Magistrate’s conclusion that the charge was groundless. That Court finally observed that having regard to the documents refer-red to in Section 173, Criminal P.C. there appeared a certain consistency of conduct or even collaboration amongst the accused persons so far as the alleged contravention of the control order is concerned and under the circumstances it could not be said that the charge of conspiracy was groundless. It was on this reasoning that the order of discharge was set aside and the case remanded to the Court of the Chief Presidency Magistrate. These appeals have been presented under Article 136. 14. In this Court we have been taken through the relevant material on the record and it is strongly contended on behalf of the appellants that the High Court has taken an erroneous view of law and has also exceeded its power under revisional jurisdiction and that the judgment under appeal has resulted in failure of justice. 15. We may first dispose of the argument on the meaning and scope of Section 251-A, Criminal P.C. This section reads: (1) When, in any case instituted on a Police report, the accused appears or is brought before a Magistrate at the commencement of the trial, such Magistrate shall satisfy himself that the documents referred to in Section 173 have been furnished to the accused, and if be finds that the accused has not been furnished with such documents or any of them, he shall cause them to be so furnished. (2) If, upon consideration of all the documents referred to in 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 considers the charge against the accused to be groundless, he shall discharge him. (3) If, upon such documents being considered: such examination, if any, being made and the prosecution and the accused being given an opportunity of being heard, 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 a charge against the accused. (4) The charge shall then be read and explained to the accused and lie shall be asked whether he is guilty or claims to be tried. (5) If the accused pleads guilty, the Magistrate shall record the plea and may, in his discretion, convict him thereon. (6) If the accused refuses to plead, or does not plead, or claims to be tried, the magistrate shall fix a date for the examination of witnesses. (7) On the date so fixed the Magistrate shall proceed to take all such evidence as may be produced in support of the prosecution: Provided that the Magistrate may permit the cross-examination of any witness to be deferred until any other witness or witnesses have been examined, or recall any witness for further cross-examination. (8) The accused shall then be called upon to enter upon’ his defence and produce his evidence: and if the accused puts in any written statement, the Magistrate shall file it with the record. (9) If the accused, after he has entered upon his defence, applies to the Magistrate to issue any process for compelling the attendance of any witness for the purpose of examination or cross-examination or the production of any documents or other thing, the Magistrate shall issue such process unless he considers that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice. Such ground shall be recorded by him in writing: Provided that, when the accused has cross-examined or had the opportunity of cross-examining any witness after the charge is framed, the attendance of such witness shall not be compelled under this section, unless the Magistrate is satisfied that it is necessary for the purpose of justice. (10) The Magistrate may, before summoning any witness on such application under Sub-section (9), require that his reasonable expenses incurred in attending for the purpose of the trial be deposited in Court. (11) If in any case under this section in which a charge has been framed, the Magistrate finds the accused not guilty he shall record an order of acquittal. (12) Where in any case under this section, the Magistrate does not proceed in accordance with the provisions of Section 349 or Section 562, he shall, if he finds the accused guilty, pass sentence upon (him) according to law. (13) In a case where a previous conviction is charged under the provisions of Section 221, Sub-section (7), and the accused does not admit that he has been previously convicted as alleged in the charge, the Magistrate may, after he has convicted the said accused under Sub-section (5) or Sub-section (12), take evidence in respect of the alleged previous conviction, and shall record a finding thereon. Though at the bar of this Court as also in the High Court considerable arguments and discussion centered round this point, in our opinion, the construction and meaning of this section so far as relevant for our purpose does not present any difficulty. Under Sub-section (2), if upon consideration of all the documents referred to in Section 173, Criminal P.C. and examining the accused, if considered necessary by the Magistrate and also after hearing both sides, the Magistrate considers the charge to be groundless, he must discharge the accused. This sub-section has to be read along with Sub-section (3), according to which, if after considering the documents and hearing the accused, the Magistrate thinks that there is ground for presuming that the accused has committed an offence triable under Chapter XXI of the Code with in the Magistrate’s competence and for which he can punish adequately, he has to frame in writing a charge against the accused. Reading the two sub-sections together it clearly means that if there is no ground for presuming that (he accused has committed an oftence, the charges must be considered to be groundless, which is the same thing as saving that there is no ground for framing the charges. This necessarily depends on the facts and circumstances of each case and the Magistrate is entitled and indeed has a duty to consider the entire material referred to in Sub-section (2). On the view that we have taken, we do not consider it necessary to refer to the various decided cases cited at the bar of this Court or discussed in the judgment of the High Court. 16. Coming now to the facts of this case, in our view, the question principally depends on the scope and effect of the notification dated September 22, 1949, the circular dated November 2, 1964 and the Deviation Order dated June 25, 1965. If, on this material, the Court comes to the conclusion that there is no ground for presuming that the accused has committed an offence, then it can appropriately consider the charge to be groundless and discharge the accused. The argument that the Court at the stage of framing the charges has not to apply its judicial mind for considering whether or not there is a ground for presuming the commission of the offence by the accused is not supportable either on the plain language of the section or on its judicial interpretation or on any other recognised principle of law. The order framing the charges does substantially affect the person’s liberty and it is not possible to countenance the view that the Court must automatically frame the charge merely because the prosecuting authorities, by relying on the documents referred to in Section 173, consider it proper to institute the case. The responsibility of framing the charges is that of the Court and it, has to judicially consider the question of doing so. Without fully adverting to the material on the record it must not blindly adopt the decision of the prosecution. – http://www.lawweb.in/2013/06/duty-of-court-while-framing-charge.html

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