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When to Apply under Section 226/227 CrPC.

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/CRIMINAL REVISION APPLICATION NO. 245 of 2021

FOR APPROVAL AND SIGNATURE: HONOURABLE MR. JUSTICE S.H.VORA

1 Whether Reporters of Local Papers may be allowed to see the judgment ? Yes

2 To be referred to the Reporter or not ? Yes

3 Whether their Lordships wish to see the fair copy of the judgment ? No

4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ? No

MANISHABEN GAJJUGIRI GOSWAMI

Versus

STATE OF GUJARAT

Appearance:MR JM PANCHAL WITH MR. RAHUL R DHOLAKIA(6765) for the Applicant(s) No. 1
MR MITISH AMIN, PP WITH MR. PRANAV TRIVEDI, APP (2) for the Respondent(s) No. 1

CORAM: HONOURABLE MR. JUSTICE S.H.VORA

Date : 05/04/2021

ORAL JUDGMENT

1. With the consent of learned advocates for the respective parties, the matter is taken up for final hearing.

2. Heard learned counsel Mr.J.M.Panchal appearing for learned advocate Mr. Rahul Dholakia, learned PP Mr. Mitesh Amin assisted by learned APP Mr. Pranav Trivedi and learned advocate Mr. K.S.Chandrani for the complainant.

3. This matter under section 397 read with section 401 of the Code of Criminal Procedure (for short “Cr.P.C.”) is preferred against order of “framing of charge” dated 02.02.2021 passed by learned Additional Sessions Judge, Bhachau below Exh.25 in Sessions Case No.216 of 2020 in the matter between Ms. Manishaben Gajjugiri Goswami (original accused No.10) v/s. State of Gujarat.

4. The main but serious grievance made by the applicant is that learned Sessions Judge has framed the “charge” against her without hearing and thus, there is apparent non compliance of provisions of section 226 and 227 of the Cr.P.C. While elaborating the submissions and after reading copy of “Rojnama” in Sessions Case No.216 of 2020 dated 02.02.2021 annexed at Page No.228 to this application to demonstrate that without learned Special Public Prosecutor or learned advocate for the accused being heard, “charge” is directly framed against the applicant vide annexure A through video conferencing hearing. Learned counsel Mr. J.M.Panchal appearing with learned advocate Mr.Rahul Dholakia for the applicant would submit that after framing of charge against applicant, the matter is posted on 01.04.2021 for further hearing of Sessions Case No.199 of 2020 as per Rojkam and hearing of application Exh.24. It is vehemently argued with serious grievance that by and large majority of Sessions Judge do not comply with the provisions laid down under section 226 and 227 of the Cr.P.C. in its letter and spirit. In the case on hand, original accused nos.1 and 2 of Sessions Case No.199 of 2020 filed application below Exh.125 praying compliance of section 226 of the Cr.P.C. Vide order dated 19.12.2020, learned Sessions Judge rejected the application on the ground that since documents of charge sheet along with statement of witnesses are already provided to them there is due compliance of section 226 of the Cr.P.C. Copy of said order is annexed at Annexure D to this application (Page No.162 to 164).

5. With this background, learned advocate Mr.J.M.Panchal would submit that any accused person is not required to draw attention of the court towards provision of section 226 and 227 of the Cr.P.C. as duty is cast upon the Sessions Court to comply the same in its letter and spirit. Despite such duty cast upon the Sessions Judge, present applicant moved application Exh.24 (annexed at Annexure E), inter-alia, disclosing that applicant can avail her right under section 227 of the Cr.PC. after prosecution opens its case in accordance with provisions of section 226 of the Cr.P.C. However, the applicant made a written request to the learned Sessions Judge to comply with the provisions of section 226 of the Cr.P.C. so that the applicant can avail provision of section 227 of the Cr.P.C. to file discharge application. Such application is filed on 12.01.2021 and same is pending as of now. In this respect, learned counsel Mr.J.M.Panchal has placed reliance on the judgment of the Hon’ble Supreme Court in the case of Amit Kapoor v/s. Ramesh Chander and Anr. reported in (2012) 9 SCC 460, wherein it was held in para 17 as under :-

“17. Framing of a charge is an exercise of jurisdiction by the trial court in terms o section 228 of the Code, unless the accused is discharged under section 227 of the Code.

Under both these provisions, the court is required to consider the “record of the case” and documents submitted therewith and, after hearing the parties, may either discharge the accused or where it appears to the court and in its opinion there is ground for presuming that the accused has committed an offence, it shall frame the charge. Once the facts and ingredients of the section exists, then the court would be right in presuming that there is ground to proceed against the accused and frame the charge accordingly. This presumption is not a presumption of law as such. The satisfaction of the court in relation to the existence of constituents of an offence and the facts leading to that offence is a sine qua non for exercise of such jurisdiction. It may even be weaker than a prima facie case. There is a fine distinction between the language of sections 227 and 228 of the Code. Section 227 is the expression of a definite opinion and judgment of the Court while section 228 is tentative. Thus, to say that at the stage of framing of charge, the Court should form an opinion that the accused is certainly guilty of committing an offence, is an approach which is impermissible in terms of section 228 of the Code.”

6. Learned PP Mr. Mitesh Amin after drawing attention towards Rojkam of Sessions Case recorded in the month of January, 2021, he would submit that application Exh.24 was heard and submissions were made by learned Special PP in charge of the case. Beyond this, he could not point out anything to show that there is compliance of section 226 of the Cr.P.C.

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7. Brief facts leading to the present Revision Applicant can be stated thus :-

7.1. That FIR being C.R.No.I-3 of 2019 was registered against six persons named therein before the Gandidham Railway Police Station on 08.01.2019 for the offence punishable under section 302, 120B, 34 of Indian Penal Code and under the provisions of Arms Act. Gist of the allegations in the FIR is that it is the case of the first informant that his Uncle Jayantibhai Bhanushali was shot dead while he was returning to Ahmedabad from Bhuj by Sayajinagar Express train by unknown persons and the accused persons named in the FIR had conspired and connived with each other to do away with the deceased due to political rivalry between the deceased and original accused no.1.

8. After completion of investigation, first charge sheet was filed against six accused persons and subsequently investigation was carried further and two more supplementary charge sheet were filed. Since the offence alleged against the accused of all charges being exclusively triable by Sessions Court, same was committed under the provisions of section 209 of the Cr.P.C. All the charge sheet culminated in Sessions Case No.199 of 2020, Sessions Case No.200 of 2020 and Sessions Case No.216 of 2020 respectively. As per order dated 11.11.2020 all the three cases were ordered to be consolidated and tried together.

9. Despite application below Exh.24 in Sessions Case No.216 of 2020 dated 13.01.2021 praying that the applicant intends to file discharge application and therefore, made a request to direct the prosecution to follow with the provision of section 226 of the Cr.P.C. Pending hearing of the said application Exh.24, order to frame charge was passed on 02.02.2021 and plea was recorded below Exh.26 through Video Conferencing hearing. Feeling aggrieved by the order of the Court to frame charge, the applicant seeks to challenge legality and correctness of the order of framing of charge dated 02.02.2021, as impugned order is in complete violation of procedure prescribed in Chapter XVIII of the Cr.P.C.

10. Looking to the casual approach adopted by the learned Sessions Judge and when serious grievance is raised before this Court that large number of learned Sessions Judge do not comply with the provisions of section 226 of the Cr.P.C. and this Court also noticed such failure on many occasions straightway passing order of framing of charge, the matter is therefore, taken up on urgent basis and heard forthwith in view of seriousness of the offence.

11. Before the impugned order is considered, it is necessary to reproduce provisions of the Cr.P.C. Chapter XVIII deals with the procedure to be followed by the Sessions Court in case of trial. Relevant provision of sections 226 to 228 reads as under :-

“226. Opening case for prosecution. When the accused appears or is brought before the Court in pursuance of a commitment of the case under section 209, the prosecutor shall open his case by describing the charge brought against the accused and stating by what evidence he proposes to prove the guilt of the accused.

227. Discharge. If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, 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.

228. Framing of charge.

(1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which-
(a) is not exclusively triable by the Court of Session, he may, frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate, and thereupon the Chief Judicial Magistrate shall try the offence in accordance with the procedure for the trial of warrant- cases instituted on a police report;
(b) is exclusively triable by the Court, he shall frame in writing a charge against the accused.
(2) Where the Judge frames any charge under clause (b) of sub- section (1), the charge shall be read and explained to the accused and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried.”

12. On plain reading of section 226 and section 227 of Cr.P.C., makes it clear that Sessions Court has to begin with opening of case by the prosecution and then followed by arguments on behalf of prosecution accused culminating in passing order provided under section 227 or 228 of the Cr.P.C., either to discharge or to pass order of framing of charge. Chapter XVIII consists of section 225 to 237 of the Cr.P.C., providing relevant provisions regarding trial before the Sessions Court. Section 227 relates to discharge and section 228 relates to framing of charge in a case.

13. In catena of decisions, if cited few of them, the Hon’ble Supreme Court has held that at the time of discharge / framing of charge under section 227 and 228 of the Cr.P.C., the Court is required to evaluate material and documents on record with a view to find out facts emerging therefrom taken at the face value, disclose existence of all ingredients constituting alleged offence. In other words, purpose and object of section 226 to 228 is to ensure that the Court should be satisfied that the accusation made against the accused is not frivolous and that there is some material for proceedings against the accused. To clinch the issue, few of the citations needs to be cited for further consideration of the matter.

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(1) The Hon’ble Supreme Court in the case of Banti Alias Guddu v/s. State of M.P. reported in (2004) 1 SCC 414, has held in para – 12 as under :-

“12. In trials before a Court of Session, the prosecution “shall be conducted by a Public Prosecutor”. Section 226 of the Code of Criminal Procedure, 1973 (for short “the Code”) enjoins on him to open up his case by describing the charge brought against the accused. He has to state what evidence he proposes to adduce for providing the guilt of the accused. If he knew at that stage itself that certain persons cited by the investigating agency as witnesses might not support the prosecution case he is at liberty to state before the court that fact. Alternatively, he can wait further and obtain direct information about the version which any particular witness might speak in court. If that version is not in support of the prosecution case it would be unreasonable to insist on the Public Prosecutor to examine those persons as witnesses for prosecution.”

(2) The Hon’ble Supreme Court the case of State of Karnataka v/s. L. Muniswamy and Ors. reported in (1977) 2 SCC 699, has held in para – 7 as under :-

“7. The second limb of Mr. Mookerjee’s argument is that in any event the High Court could not take upon itself the task of assessing or appreciating the weight of material on the record in order to find whether any charges could be legitimately framed against the respondents. So long as there is some material on the record to connect the accused with the crime, says. the learned counsel, the case must go on and the High Court has no jurisdiction. to put a precipitate or premature end to the proceedings on the belief that the prosecution is not likely to succeed. This, in our opinion, is too broad a proposition to accept. Section 227 of the Code of Criminal Procedure, 2 of 1974, provides that:

“If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, 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.”

This section is contained in Chapter XVIII called “Trial Before a Court of Sessions”. It is clear from the provision that the Sessions Court has the power to discharge an accused if after perusing the record and hearing the parties he comes to the conclusion, for reasons to be re- corded, that there is not sufficient ground for proceeding against the accused. The object of the provision which requires the Sessions Judge to record his reasons is to enable the superior court to examine the correctness of the reasons for which the Sessions Judge has held that there is of is not sufficient ground for proceeding against the accused. The High Court therefore is entitled to go into the reasons given by the Sessions Judge in support of his order and to determine for itself whether the order is justified by the facts and circumstances of the case. Section 482 of the New Code, which corresponds to s. 561-A of the Code of 1898, provides that:

“Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.”

In the, exercise of this. whole some power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the; ends of justice require that the proceeding ought to be quashed. The saving of the High Court’s inherent powers, both in civil and criminal matters, is designed to. achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice. The ends of justice are higher than the, ends of mere law though justice has got to be. administered according to laws made by the, legislature. The compelling necessity for making these observations is that without a proper realisation of the object and pur- pose of the provision which seeks to. save the inherent powers of the High Court to do justice between the State and its. subjects, it would be impossible. to appreciate the width and contours of that salient jurisdiction.”

14. If we summarize the principles of law settled by the Hon’ble Supreme Court with regard to relevancy and importance of Chapter XVIII of Cr.P.C., more particularly sections 226 to 228, it is quite clear that when accused is brought before the Court on account of committal of case under section 209, the prosecutor is required to open the case by disclosing the charge brought against the accused and further has to state on what evidence he proposes to prove guilt of accused. In other words, while opening the case under section 226 of the Cr.P.C., prosecution is duty bound to disclose charge against the accused and required to state not only in brief but in fair manner about summary of evidence by which prosecution is going to prove case against the accused. Needless to say that it is principle of criminal law that accused is to be presumed innocent so long as he / she is not proved guilty by the prosecution. At the end of completion of procedure prescribed under provision of section 226 of the Cr.P.C., if the Court considers that there is no sufficient grounds for proceeding against the accused, he / she shall be discharged after recording reasons for doing so. For the sake of further clarity, it is to be remembered by the learned Sessions Court that charge sheet constitutes primary evidence constituting offence for proceedings in criminal case and the Court is required to look into relevant law viz-a-viz provisions of IPC or any other law viz-a-viz. allegations made in the charge sheet and then to consider whether any offence is committed so as to put the accused for trial.

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15. Moreover, the object of provisions of section 226 to 228 is to ensure expeditious disposal of sessions case so that the accused is discharged if there is no case against him or tried quickly by following due procedure laid down under Chapter XVIII of the Cr.P.C. and to give verdict as to involvement or innocence of accused, as the case may be. The provision of section 226 to 228 of Cr.P.C., not only avoids harassment to accused but also waste of public time over the cases which do not disclose even prima facie case and therefore, at this stage, the learned Session Judge has to apply his judicial mind to find out as to whether prima facie any offence is made out against the accused having regard to charge sheet papers relied upon by the prosecution side.

16. From the above and more particularly from Rojkam, it is noticed by the Court on the date when the Court passed order of framing charge, learned Special Public Prosecutor was not present. There is no whisper in the Rojkam that learned Sessions Judge evaluated or examined charge sheet papers or even he looked into charge sheet papers and without opening the case by the prosecution as provided under section 226 of the Cr.P.C., the learned Sessions Judge decided to frame the charge under section 228 of Cr.P.C. depriving the applicant from her valuable right under the provisions of Cr.P.C. Possibly, the learned Additional Session Judge did not follow the provisions of section 226 and 227 of the Cr.P.C. to be followed since documents of charge sheet and statement of witnesses already provided to the original accused nos.1 and 2 in Sessions Case No.199 of 2020 as per order passed below Exh.125, he passed order of framing charge directly without complying with the provisions of section 226 and 227 of the Cr.P.C. qua the applicant. On bare perusal of the order passed below Exh.125, it seems that the learned Sessions Judge following provision of section 207 of the Cr.P.C., took as due compliance of section 226 of Cr.P.C. This Court is constrained to observe this to indicate that the learned Additional Sessions Judge did not find any distinction between the scope and ambit of section 207 and section 226 of Cr.P.C. when he passed order below Exh.125 application moved by accused no.1 and 2 of Session Case No.199 of 2020.

17. Having regard to procedure followed by the learned Additional Sessions Judge, only conclusion which can be drawn is such that learned Additional Sessions Judge has directly proceeded to frame charge against the applicant without following provisions of section 226 and section 227 of the Cr.P.C. The casual approach adopted in such serious case indicates that this practice of directly framing charge against the accused in session case have been followed by different learned Sessions / Additional Sessions Judge in the State of Gujarat. This Court has also come across in so many cases while dealing with criminal matters with regard to various interlocutory orders.

18. Now the Court is left with two options i.e. either to direct the learned Sessions Judge to hear application Exh.24 or to quash and set aside the order of framing of charge dated 02.02.2021. First option will not serve the purpose as it may consume further time and end result would be to quash order of framing charge which may lead to further multiplicity of litigation. To avoid multiplicity of litigation and expeditious hearing of sessions case involving serious offence, the Court thinks it fit to quash and set aside order dated 02.02.2021. Accordingly, order dated 02.02.2021 is quashed and set aside with a direction to the learned Additional Sessions Judge to direct learned Special Public Prosecutor to open the case as provided under section 226 of the Cr.P.C. and then to follow further procedure prescribed in section 226 to 228 of Cr.P.C. after hearing both the sides in accordance with law.

19. It is made clear that the Court has not entered into merits of the charge so framed at this stage. It is for the learned Sessions Judge to frame charge on the basis of charge sheet papers after following provisions of section 226 to section 228 of Cr.P.C. Present order is passed purely on account of failure on the part of the learned Sessions Judge in following provisions of law, required to be followed after committal of case under section 209 of the Cr.P.C.

20. Looking to the grievance voiced by learned counsel Mr.J.M.Panchal that practice of directly framing charge in sessions case appears to be followed by different learned Additional Sessions Judge / learned Sessions Judge within the State of Gujarat, this Court considers appropriate to circulate this judgment to all the learned Session Judges within State of Gujarat before relevant provisions of Chapter XVIII are completely forgotten namely section 226 to section 228. Registrar (Judicial) to take appropriate steps in this regard.

21. With above observation and direction, present Revision Application stands disposed of.

(S.H.VORA, J)

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