Ajay Malik vs State
1996 Latest Caselaw 120 Del

JUDGMENT

Jaspal Singh, J.

(1) On March 21, 1995 the learned Metropolitan Magistrate heard arguments on the question of framing of charge and after having set over the matter for as many as ten days, passed the following order: "I have gone through the record of the case, written arguments submitted and authorities cited on behalf of accused Ajay Kumar Malik. The facts on record disclose a prima facie case for framing of charge under sections 420/406/120-B, Indian Penal Code is made out against accused Gurvinder Singh and Ajay Kumar Malik."

Ajay Kumar- Malik is dissatisfied with the order. His grievance is that though besides oral arguments and written submissions, number of authorities had also been cited in support of the contention that no prima facie case had been made out for framing of charge, the learned Metropolitan Magistrate dismissed the same with a cryptic and practically non-speaking order. This, according to him, has not only greatly prejudiced him but has also resulted in miscarriage of justice. Of course, it is also his case that even otherwise no case had been made out by the prosecution for framing of the charge.

(2) The learned counsel for the State, however, finds nothing wrong with the impugned order. According to him the learned Metropolitan Magistrate was neither required to give any reasons in support of his order nor was he required to deal with the submissions made. by the accused. In support, reliance is placed on two judgments-one coming from the Kerala High Court in Jayaprakash v. State 1981 Cri. Lj 460(1) and the other from Karnataka High Court reported as Mahantaswamy v. State of Kamataka 1987 Cri. L.T 497(2).

(3) In Jayaprakash v. State (supra), the learned single Judge making a distinction between sections 227 and 228 of the Code of Criminal Procedure observed that whereas under section 227 while discharging the accused it Is incumbent on the court to record reasons for so doing, section 228 does not in terms direct that the court should pas? a formal order giving its reasons for the framing of the charge. It was observed: "THAT the Legislature did not contemplate a formal order framing the chars is evident from the fact that while in Section 227 there is express mention that the order should be supported by reasons, there if absence of such a provision m section 228(1). There is reasons for holding that the omission in the later case is not accidental or inadvertent, because under the scheme of the Code, an order of discharge being a final order is liable to be challenged by the prosecution and in case it is challenged, the reasons for the discharge should be made available for scrutiny by the superior court. In case a charge is framed, the trial proceeds and the opportunity to challenge any irregularity in the charge or its validity would be available to the affected at the conclusion of the trial,"

(4) In Mahantaswamy v. State of Kamataka (supra), the learned Magistrate had written a lengthy order running into 39 typed pages. He was chided for having "unnecessarily wasted a good deal of time over writing such a detailed order". It was observed that the question of giving reasons would have arisen only if the Magistrate had wanted to discharge the accused person.

(5) With respect, I find myself unable to subscribe to the view that the Court is not required to give reasons in support of its decision to frame charge.

(6) In more than one judgment the Supreme Court has laid down the kind of application of judicial mind by the court at the time of framing of the charge, and it is that at that stage the truth, veracity and effect of the evidence which the prosecutor proposes to adduce are not to be meticulously judged. The standard of test. proof and judgment which is to be applied finally before finding the accused guilty or otherwise, is not exactly to be applied at the stage of section 227 or 228 but while perusing the records and the statements on which the prosecution relies, the Court has to form a "presumptive opinion as to the existence of the factual ingredients constituting the offence" and justifying the framing of the charge. (See State of Bihar v. 'Ramesh Singh Superintendent and Remembrancer of Legal Affairs. West Bengal v. Anil Kumar Bhunja Air 1080 Sc 52) (4). The Union of India v. Prafulla Kumar Samal the Supreme Court laid down four principles to be taken into account. The Court observed: "(1).That the -Judge while considering the auction of framing the charges under section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima-facie case against the accused has been made out ( 2 ) Where the materials placed -before the. Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial. (3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down. a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused. (4) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced Court cannot act merely as a Post-Office or a mouth-piece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial."

(7) What does all this show ? It shows that the Court is not to frame the charge at the mere asking of the prosecution. It has to direct its judicial mind to the question as to whether or not the charge is required to be framed. It is not a mere empty formality or a mere dressing on the salad. What is expected of the Magistrate is to give reasons so that "on the reading of the order one can perceive clearly as to how and on what basis the Trial Court came to the conclusion that a prima facie case was made out against the accused" [per Anil Dev Singh. J. Pradeep Kumar v. State . And, while furnishing the reasons, he is neither expected nor required to either enter into a. lengthy discourse or to bring out a ponderous judgment or what W. G. Miller said in his Data of Jurisprudence (page 281), the elegant juris. But then, giving of reasons is among the most important duties of the court. It is a check on unbridled discretion without which the freedom of the court, may perhaps become unfettered and undirected and judging may become arbitrary, By saying, as the learned Metropolitan Magistrate has said in this case, that "having gone through the record of the case, written arguments submitted and authorities cited. . . . . .a prima facie case A for framing of charge" is disclosed, the obligation to give reasons is not circumvented but rather subverted. I feel no hesitation in crashing the charge. Let the matter go back to the Metropolitan Magistrate with the direction to pass a fresh order, reasoned and reasonable, and in accordance with law. Trial Court file be sent back forthwith.