Allahabad High Court Discusses Scope Of Powers While Hearing An Application For Discharge U/S 227 CrPC

"Framing of a charge is an exercise of jurisdiction by the trial court in terms of 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 there with and, after hearing the parties, 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."

On Framing of charge, it held:

"Once the facts and ingredients of the section (Section 228) 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 the exercise of such jurisdiction."

On the aspect of Discharge, it held:

"Only when the trial court finds from an examination of the Case Diary and other evidence collected by the Investigating Officer that there was no material at all to proceed against the accused, can discharge application be allowed."

Further, toothcombing the distinction between the two, it opined,

"Section 227 is expression of a definite opinion and judgement of the Court whereas Section 228 is tentative. That is 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."

It clarified however that at the stage of framing of charges, Court is concerned not with proof but with a strong suspicion that the accused has committed an offence, which if put to trial, could prove him guilty. The final test of guilt is not to be applied at that stage.

The Court has only to see whether there is sufficient material for the accused to be tried and not to evaluate and weigh the evidence in such a manner as to come to a conclusion that the accused can most certainly be convicted on the charges so proposed in the chargesheet.

In this vein, the Court reiterated the observations made in Amit Kapoor v. Ramesh Chander and ors, 2012 9 SCC 460:

"if the scales of the pan as to guilt or innocence of the accused are something like even, at the conclusion of the trial, then on the theory of benefit of doubt the cases to end in his acquittal. But if, on the other hand, it is so at the initial stage of making an order under Section 227 of Section 228, then in such a situation ordinarily and generally the order which will have to be made will be one under Section 228 and not under Section 227."

The development ensued in a revision been filed by one Rakesh Kumar Pandey, for quashing an order passed by the Additional Sessions Judge, Lucknow, rejecting his discharge application.

It was his case that he was falsely implicated for commission of offences under Sections 147, 148, 332, 307, 427, 504, 506, 353 IPC, for allegedly manhandling a Consolidation Commissioner.

He argued that the statements of all the prosecution witnesses as also defence witnesses have been filed, from the perusal whereof the Court would find that no charge under Section 307 could have been added in the charge sheet.

The Court noted that in exercise of its jurisdiction under Section 228, the Court cannot take into consideration external materials given by an accused for reaching the conclusion that no offence was disclosed or that there was possibility of his acquittal. The Court has to consider the record and documents annexed with it by the prosecution. No provision in CrPC grants to the accused any right to file any material document at the stage of framing of charge. That right is granted only at the stage of trial.

Reliance was placed on the Supreme Court judgement in State of Karnataka v. MR Hiremath [2019 (7) SCC 515 ] where it was held that at the stage of considering an application for discharge, the Court must proceed on the assumption that the material which has been brought on record by the prosecution is true and evaluate the material in order to determine whether the facts emerging from the material, taken on its face value, disclose the existence of the ingredients necessary to constitute the offence.

Reference was also made to Dilawar Balu Kurane v. State of Maharashtra 2002 (2) SCC 135, wherein, the Supreme Court had observed that while exercising power under Section 227 CrPC, the trial Court 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 is made out. If two views are equally possible and the judge is satisfied that the evidence produced before him will give rise to some suspicion but not grave suspicion against the accused, he will be fully justified to discharge the accused.

Coming to the facts of the instant case, the High Court noted that the ASJ was of the view that there was sufficient material in the paperbook for the accused to be tried and that no evidence was produced by the accused in the discharge application for him to come to a conclusion otherwise and therefore, the ASJ rejected the application for discharge.

The High Court opined that the trial court has considered in detail each and every aspect of the matter at length and then passed an appropriate order. The scope under Criminal Revision being restricted to correct an apparent error in law or a perversity in fact, there was no good ground to interfere in the Criminal Revision.

It referred to the case of Amit Kumar (supra), where it was held that revisional jurisdiction of the High Court is very limited one and cannot be exercised in a routine manner and it can be invoked where the decisions under challenge are grossly erroneous, there is no compliance with the provisions of law, the finding recorded is based on no evidence, or the material evidence is ignored or Judicial discretion is exercised arbitrarily or perversely.

The petition was accordingly dismissed.

Case Title: Rakesh Kumar Pandey & Anr v. State Of U.P. & Anr.
Citation: 2022 LiveLaw (AB) 61

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