IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRR No.3568 of 2013 (O&M) Date of Decision: February 28, 2014 [ENTITY] Petitioner VERSUS [ENTITY] Respondent CORAM: HON'BLE MR. JUSTICE [ENTITY] Present: Mr.[ENTITY], Advocate for the petitioner. Mr.[ENTITY], Advocate for the respondent. [ENTITY], J.
Petitioner [ENTITY] has filed this revision petition against [ENTITY] under [SECTION] [ACT] challenging the judgment dated 17.10.2013 passed by learned Addl. Sessions Judge, Yamunanagar at Jagadhri allowing the revision petition filed by the respondent by setting aside the order dated 02.02.2012 passed by learned Judicial Magistrate Ist Class, Yamunanagar at Jagadhri discharging the petitioner in terms of [SECTION] [ACT] by holding that there is no such evidence on file, which if goes rebutted would result into conviction of the accused(petitioner).
It is mainly stated in the petition that in the year 1993, respondent filed a criminal complaint against the petitioner, who was practicing as an advocate in Income Tax in District [ENTITY] for filing false forged and fabricated Income Tax Return in the name of non existing assessee, claiming refund on the basis of forged TDS certificate. Without recording any preliminary evidence, the trial Court vide order dated 29.03.1993, summoned the petitioner to face trial for the offences under [SECTION], [SECTION], [SECTION] and [SECTION] [ACT] . The trial court recorded the pre-charge evidence under [SECTION] [ACT] applicable to the trial of the warrant cases and after recording of the evidence, trial court, on considering facts, as per [SECTION] [ACT], came to the conclusion that there is no such evidence on file, which goes unrebutted would result into conviction of the petitioner, as such, the trial Court discharged the petitioner. Thereafter, respondent challenged the order by way of filing revision petition. The revisional Court vide judgment dated 17.10.2013 allowed the same in a mechanical manner by setting aside the well reasoned order dated 02.02.2012 passed by the trial Court by directing the trial Court to reconsider the pre-charge evidence adduced by the respondent. It is also stated in the petition that respondent had instituted large number of complaints due to personal animosity amongst colleagues of the department as father of the petitioner was also working as Income Tax Officer in the department, thus making the petitioner scapegoat. In all, 103 criminal complaints were filed against the petitioner pertaining to the assessment year 1987-88, 1988-89 and 1989-90 on the similar allegations, out of which 28 complaints were filed at Yamunanagar (including present one), 30 complaints were filed at Kaithal and 45 complaints were filed at [ENTITY]. In the complaints at [ENTITY], the petitioner was acquitted and in the complaints at Kaithal, the petitioner was discharged.
It is also stated in the petition that learned Addl. Sessions Judge while allowing the revision filed by the petitioner has erred in holding that at the time of framing of charge, the trial court is only to evaluate the evidence only with a view to find out whether any prima facie case is made out against the accused, in total disregard to the provisions/procedure laid down in the [ACT], laying down separate procedure to proceed in the cases instituted on police report and the cases instituted otherwise than on police report.
Notice was issued to the respondent and learned counsel for the respondent appeared and contested this petition.
At the time of arguments, learned counsel for the revision petitioner argued that at the stage of framing of the charge in the complaint case, the Court is to consider that if the evidence goes unrebutted, it would result into conviction of the accused. He further argued that a separate procedure has been laid down regarding cases which are filed otherwise than on a police report. Therefore, the provisions of [SECTION] [ACT] will apply and the judgment of learned Addl. Sessions Judge, Yamunanagar at Jagadhri is illegal and against the law.
Learned counsel for the petitioner cited judgment passed by the Hon'ble Supreme Court in [PRECEDENT], in which, the procedure the complaint case has been given as to when the accused is to be discharged under [SECTION] [ACT] He also cited judgment passed by the Hon'ble Supreme Court in [PRECEDENT]. In this judgment, it is mainly held by the Hon'ble Supreme Court that in a cognizable offence, FIR is to be registered. Learned counsel for the petitioner further cited judgment passed by the Hon'ble Supreme Court in [PRECEDENT]. This judgment is regarding interpretation of statutes and it is held in this case that though the term "shall" is construed as "may" but in its ordinary significance the term is mandatory. He also cited judgment passed by the Hon'ble Supreme Court in [PRECEDENT] in [CASE NUMBER] and other connected appeals, in which the Hon'ble Supreme Court has dealt with cases under [SECTION] [ACT] Learned counsel for the petitioner cited judgment passed by this Court in [PRECEDENT], in which the procedure is given to set aside the summoning order passed by the Magistrate. He also cited judgment passed by the Hon'ble Supreme Court in [PRECEDENT]. It is a case of [SECTION] [ACT] In this case, it is held that after the separation when the relationship turns sour, all sorts of allegations and counter allegations are made against each other. Learned counsel for the petitioner further cited judgment passed by the Hon'ble Bombay High Court in [PRECEDENT], in which it is held that revisional Court cannot interfere unless there is capriciousness on the part of Courts below apparent from the impugned order. Revision Court cannot interfere with the order even if on the same set of evidence, another view is possible.
On the other hand, learned counsel for the respondent has relied upon judgments passed by the Hon'ble Supreme Court in [PRECEDENT], [PRECEDENT] and [CASE NUMBER] titled as [PRECEDENT] and connected appeal decided on 06.01.2014.
I have gone through the record and have learned learned counsel for the parties.
From the record, I find that the only main point for setting aside the judgment of learned Addl. Sessions Judge is that at the time of framing of charge, whether the Court is to see prima facie case from the evidence on record or the Court is to see whether the evidence produced by the complainant for the purpose of charge, if remain unrebutted, would lead to conviction or not. Learned counsel for revision petitioner has argued the order of the learned Magistrate dated 02.02.2012 is correct in discharging the petitioner by holding that if the evidence remain unrebutted, it will not lead to conviction.
On the other hand, learned counsel for the respondent has relied upon the law laid down by the Hon'ble Supreme Court that even in a complaint case, at the time of framing of the charge, the Court is to see only prima facie case and the Court is not to see whether this evidence if unrebutted would lead to conviction or not. Learned counsel for the respondent has cited judgment passed in [PRECEDENT], in para No.46 of which, it is held as under:-
"46. As pointed out by the Constitution Bench in the judgment to which reference has been made, the relevant sections of the [ACT]' for short) for the trial of a case of this type are [SECTION], [SECTION] and
[SECTION]. [SECTION] provides:
"If upon taking of the evidence referred to in [SECTION], the Magistrate considers, for reasons to be recovered, that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him."
While [SECTION], on the other hand, requires :
"If when such evidence has been taken or at any previous stage of the case 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 should be adequately punished by him, he shall frame in writing a charge against the accused."
The Code contemplates discharge of the accused by the Court of Sessions under [SECTION] in a case triable by it;cases instituted upon a police report are covered by [SECTION] and cases instituted otherwise than on police report are dealt with in [SECTION]. The three sections contain some what different provisions in regard to discharge of the accused. Under [SECTION], the trial Judge is required to discharge the accused if he 'considers that there is not sufficient ground for proceeding against the accused.' Obligation to discharge the accused under [SECTION] arises when "the Magistrate considers the charge against the accused to be groundless." The power to discharge is exercisable under [SECTION] when "the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction " It is a fact that [SECTION] and [SECTION] provide for discharge being ordered before the recording of evidence and the consideration as to whether charge has to be framed or not is required to be made on the basis of the record of the case, including documents and oral hearing of the accused and the prosecution or the police report, the documents sent along with it and examination of the accused and after affording an opportunity to the two parties to be heard. The stage for discharge under [SECTION], on the other hand, is reached only after the evidence referred to in [SECTION] has been taken. Not-withstanding this difference in the position there is no scope for doubt that the stage at which the Magistrate is required to consider the question of framing of charge under [SECTION] is a preliminary one and the test of "prima facie" case has to be applied. In spite of the difference in the language of the three sections, the legal position is that if the trial Court is satisfied that a prima facie case is made out, charge has to be framed."
I have gone through this judgment and it fully applies to the facts of the present case. As per above cited judgment, the Court is to see only, whether prima facie case is made out or not and not to see that if this evidence would remain unrebutted, will lead to conviction or not, at this stage. On the same point, learned counsel for respondent also cited judgment passed in [PRECEDENT], in para Nos.8 and 10 of which, it is held as under:-
"8. [SECTION], [SECTION] and [SECTION] deal with discharge from criminal charge. In [PRECEDENT] was noted that at the stage of framing the charge the court has to apply its mind to the question whether or not there is any ground for presuming the commission of offence by the accused. (Underlined for emphasis). The Court has to see while considering the question of framing the charge as to whether the material brought on record could reasonably connect the accused with the trial. Nothing more is required to be inquired into. (See [PRECEDENT] and [PRECEDENT]
10. After analyzing the terminology used in the three pairs of sections it was held that despite the differences there is no scope for doubt that at the stage at which the court is required to consider the question of framing of charge, the test of a prima facie case to be applied."
Learned counsel for the respondent has further cited judgment passed in [CASE NUMBER] titled as [PRECEDENT] and connected appeal decided on 06.01.2014 , in para No.22 of which, it is held as under:-
22.Now reverting to the decisions of this Court in the case [PRECEDENT] (supra) and [PRECEDENT] (supra), relied on by the respondents, we are of the opinion that they do not advance their case. The aforesaid decisions consider the provision of [SECTION] of the Code and make it clear that at the stage of discharge the Court cannot make a roving enquiry into the pros and cons of the matter and weigh the evidence as if it was conducting a trial. It is worth mentioning that the Code contemplates discharge of the accused by the Court of Sessions under [SECTION] in a case triable by it; cases instituted upon a police report are covered by [SECTION] and cases instituted otherwise than on a police report are dealt with in [SECTION]. From a reading of the aforesaid sections it is evident that they contain somewhat different provisions with regard to discharge of an accused. Under [SECTION] of the Code, the trial court is required to discharge the accused if it "considers that there is not sufficient ground for proceeding against the accused". However, discharge under [SECTION] can be ordered when "the Magistrate considers the charge against the accused to be groundless". The power to discharge is exercisable under [SECTION] when, "the Magistrate considers, for reasons to be recorded that no case against the accused has been made out which, if not repudiated, would warrant his conviction". [SECTION] and [SECTION] provide for discharge before the recording of evidence on the basis of the police report, the documents sent along with it and examination of the accused after giving an opportunity to the parties to be heard. However, the stage of discharge under [SECTION], on the other hand, is reached only after the evidence referred in [SECTION] has been taken. Thus, there is difference in the language employed in these provisions. But, in our opinion, notwithstanding these differences, and whichever provision may be applicable, the court is required at this stage to see that there is a prima facie case for proceeding against the accused.
Reference in this connection can be made to a judgment of this Court in the case of [PRECEDENT]. The same reads as follows:
"43 Notwithstanding this difference in the position there is no scope for doubt that the stage at which the magistrate is required to consider the question of framing of charge [SECTION] is a preliminary one and the test of "prima facie" case has to be applied. In spite of the difference in the language of the three sections, the legal position is that if the Trial court is satisfied that a prima facie case is made out, charge has to be framed."
In view of the above law laid down by the Hon'ble Supreme Court, at the stage of framing of charge, the Court is only to see whether prima facie case is made out or not and not to consider whether this evidence produced on the record will lead to conviction or not. As regarding the law cited by learned counsel for the revision petitioner, in none of the case, it has been held that at the time of framing of charge, the Court is not to see prima facie case. The law cited by learned counsel for the petitioner is on other points. Therefore, the judgments cited by learned counsel for the petitioner are having distinguished facts and will not apply in the present case.
Therefore, in view of the above discussion and in view of the law laid down by the Hon'ble Supreme Court, as discussed/cited above that the Court is to see the prima facie case at the time of framing of the charge, learned Addl. Sessions Judge, has not committed any illegality. The impugned judgment dated 17.10.2013 passed by learned Addl. Sessions Judge, Yamunanagar at Jagadhri is correct and as per law and the same is upheld.
Resultantly, finding no merit, the present revision stands dismissed.
February 28, 2014 ([ENTITY]) [ENTITY] JUDGE