Bombay High Court
Balam Gulab Pathan vs The State Of Maharashtra on 11 April, 2017
Bench: A.M. Badar
(18)REVNNo.3542016
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE JURISDICTION
CRIMINAL REVISION APPLICATION NO.354 OF 2016
Balam Gulab Pathan,
Age - 35 Yrs., Occu.- Pvt. Service,
R/o.-Mudhal Post Pokhale,
Tal.Panhala, Dist.Kolhapur. ... Applicant
V/s.
The State of Maharashtra ... Respondent
.....
Mr.Tejas Hilage, Advocate for the Applicant.
Mr.P.H.Gaikwad-Patil, APP for the Respondent/State.
....
CORAM : A.M.BADAR J.
DATED : 11th APRIL 2017.
ORAL JUDGMENT :
1 By this revision petition, the revision petitioner/
original accused is challenging the order dated 01/04/2016 passed
by the learned Additional Sessions Judge, Kolhapur on an
application for discharge moved by the revision petitioner under
Section 227 of the Code of Criminal Procedure, 1973 ("Cr.P.C." for
the sake of brevity). By the impugned order dated 01/04/2016,
the learned Additional Sessions Judge rejected the application for
discharge filed by the revision petitioner/original accused by
holding that the application is devoid of merit as the charge has
already been framed.
Gaikwad RD 1/9
(18)REVNNo.3542016
2 Heard. Admit. Heard finally by consent of parties.
3 Heard the learned Advocate appearing for the revision
petitioner/accused. He argued that the learned Additional
Sessions Judge, had hurriedly framed the charge and rejected the
application for discharge filed by the revision petitioner/accused.
The learned Advocate vehemently argued that the learned trial
Court has given a complete go-bye to the provisions of Sections
226 and 227 of the Cr.P.C.. No hearing on the point of framing of
charge was conducted and straightway the charge came to be
framed. By placing reliance on paragraph 8 from the Judgment of
the Honourable Single Judge of this Court in the matter of
Vikrant Rajkumar Gupta v. State of Maharashtra reported in
2015 ALL MR (Cri.) 1752, the learned Advocate argued that it is
mandatory to comply provisions of Sections 226 and 227 of the
Cr.P.C. prior to framing of the charge in order to ascertain
whether there is enough material to frame the charge.
4 The learned Additional Public Prosecutor opposed the
revision petition by supporting the impugned order rejecting the
application for discharge.
5 The revision petitioner/original accused is invoking the
revisional jurisdiction of this Court in challenging the impugned
order dated 01/04/2016, whereby his application of the same date
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for discharging him came to be rejected by the learned Additional
Sessions Judge, Kolhapur. The revision petitioner/accused came
to be charge-sheeted for the offence punishable under Section 302
of the Indian Penal Code ("IPC" for the sake of brevity) with an
accusation that the revision petitioner/original accused had
committed murder of Sharif Iqbal Patayit on 01/06/2015 at the
residential house of the deceased at Vathar, Taluka Hatkanangale,
District Kolhapur.
6 It is well settled that revisional jurisdiction is to be
exercised in exceptional cases when it is shown that the Court
below has committed glaring defect of procedure or manifest error
on the point of law consequently resulting in flagrant miscarriage
of justice. Keeping in mind these parameters of revisional
jurisdiction of this Court, let us examine whether the learned
Additional Sessions Judge in rejecting the application for discharge
filed by the revision petitioner/original accused has committed any
procedural irregularity or error on the point of law.
7 I have carefully considered the rival submissions and
also perused the record made available including the application
under Section 227 of the Cr.P.C. moved by the revision
petitioner/accused on 01/04/2016 with a prayer to discharge him
from the charge of Section 302 of the IPC. The application was
moved by raising various grounds such as intention of causing
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(18)REVNNo.3542016
bodily injuries with knowledge is totally absent, the act was not
premeditated act, the case does not fall under four corners of
Section 302 of the IPC, spot panchanama itself is sufficient to
discard the prosecution case etc. On the very same day i.e. on
01/04/2016 itself with the following order which is impugned in
the instant petition, the application for discharge moved by the
revision petitioner/accused came to be rejected :
"ORDER
Advocate Bandar is absent today. Present
Application is presented by Adv.Samiulla Patil. However,
he submitted that he does not want to argue on this
application.
It seems from record that charge (Exh.7) is already
framed against this accused on 22.1.2016. That time no
such prayer was made. Thereafter case was fixed for
hearing on 4.3.2016 present Advocate Shri.Bandar also
filed application for adjourning the matter. That time
also four witnesses were present. On 4.3.2016 as per
request of Advocate Bandar order was passed below
Exh.13 and matter was adjourned by imposing cost.
Thereafter today also three witnesses are present. Now
also Adv.Bandar is absent.
Present application is of no merit as charge is
already framed. Application is rejected."
Gaikwad RD 4/9
(18)REVNNo.3542016
8 Chapter XVIII of the Cr.P.C. deals with procedure
which is required to be adopted in trial of Sessions Cases. Section
226 of the Cr.P.C. provides for opening case for prosecution by the
prosecutor. He is required to conduct hearing by describing the
charge brought against the accused and by pointing out the
evidence against the accused in support of the charge levelled
against him. The defence gets an opportunity at this stage to
move an application for discharge or to claim discharge from the
case by pointing out that there is not sufficient ground for
proceeding against the accused. With this reason, the accused can
claim discharge prior to framing of the charge against him by
resorting to provisions of Section 228 of the Cr.P.C.
9 It is well settled that at the stage of framing of the
charge the Court is required to evaluate the material and
documents on record with a view to finding out if the facts
emerging therefrom, taken at their face value, reflects the
existence of all the ingredients constituting the alleged offence. At
the stage of framing of the charge, the Court is not expected to go
deep into the probative value of the material on record.
Requirement is just to examine whether there is a ground for
presuming that the offence has been committed by the accused. At
that stage, even strong suspicion founded on material which leads
the Court to form a prima facie opinion as to the existence of the
factual ingredients constituting the offence alleged, would justify
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(18)REVNNo.3542016
the framing of charge against the accused in respect of the
commission of that offence. However, if at the stage of framing of
the charge it is shown that there is not sufficient ground for
proceeding against the accused, then he needs to be discharged
from the case. However, once the charge against the accused is
framed, the Sessions Judge has no power under Section 227 or
any other provisions of the Cr.P.C. to cancel that charge and
reverse the proceedings to the stage of Section 227 of Cr.P.C. and
discharge the accused.
10 In the instant case, undisputedly, the charge came to
be framed on 22/01/2016. However, the application for discharge
of the accused came to be filed on 01/04/2016 i.e. after framing
of the charge against the accused. Once the charge is framed, the
Sessions Court cannot revert back for considering the application
for discharge. The next stage provided by Chapter XVIII of the
Cr.P.C. dealing with the trial of sessions case is to record
conviction on plea of guilty, if after explaining the charge to the
accused, he pleads guilty to it. If the accused does not plead
guilty, then the Sessions Judge is duty bound to record evidence of
the prosecution and to proceed ahead as per the provisions of
Section 230 and 237 of the Cr.P.C.. After framing of the charge,
application for discharge cannot be entertained as there is no
provision in the Cr.P.C. to revert back and discharge the accused.
The Sessions Judge then can either acquit or convict the accused.
Gaikwad RD 6/9
(18)REVNNo.3542016
11 In the matter of Vikrant Rajkumar Gupta (supra)
relied by the revision petitioner, what was challenged was the
order of framing charge against the petitioner therein under
Section 304-B, 306 and 498 read with Section 34 of the IPC and in
that context, referring to the Judgment in the matter of Ambadas
Kashirao Kharad v. State of Maharashtra, paragraph 8 of that
Judgment came to be relied which reads thus :
"8. A bare perusal of the above sections makes it clear
that in a Sessions Trial the case has to begin with
opening of the case by the prosecution followed by
arguments on behalf of the prosecution and the accused
culminating in passing of an order provided in Section
227 of the Code of Criminal Procedure. The compliance
of Sections 226 and 227 is not an empty formality and
the Sessions Courts dealing with the sessions cases are
bound to comply with the Sections 226 and 227 of the
Code of Criminal Procedure in letter and spirit. Section
226 has been enacted so that the accused knows in
advance the nature of the evidence which the
prosecution proposes to lead to prove the charge brought
against him. The object of Section 227 is to ensure
expeditious disposal of sessions cases so that the accused
is discharge if there is no case against him or tried
quickly and either acquitted or convicted as the case may
be. Section 227 also saves the accused front harassment
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(18)REVNNo.3542016
inasmuch as if the records do not make out any prima
facie case against the accused, the accused is entitled to
be discharged. This is not only with a view to avoid
undue harassment of the accused but also waste of
public time over the cases which do not disclose even
prima facie case. Therefore, at this stage the 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 the record relied upon by the
prosecution. No doubt exercise undertaken by the Judge
at this stage is to find out if there is prima facie evidence
against the accused so that the accused can be tried by
the competent Court, that is, Sessions Court or any other
Court/Magistrate having jurisdiction to try the offence."
However, in the case in hand, as seen from the
impugned order, the charge was already framed and explained to
the accused on 22/01/2016 and the application for discharge
came to be moved on 01/04/2016 when the Sessions Case was
fixed for recording of evidence as per provisions of Section 231 of
the Cr.P.C. and when three of the prosecution witnesses were
present for adducing evidence before the learned trial Court.
Considering this fact situation, the impugned order came to be
passed by the learned Sessions Judge.
12 In this view of the matter, no error on the point of law
or procedural irregularity can be seen from the impugned order
rejecting the application for discharge.
Gaikwad RD 8/9
(18)REVNNo.3542016
13 The revision petition, as such is devoid of merit and
the same is, therefore, dismissed.
(A.M.BADAR J.)
Gaikwad RD 9/9
