Criminal Revision No.1282 of 2008 : 1 : IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: October 15, 2008 Dr.Satpal Aggarwal .....Petitioner VERSUS State of Punjab & others ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr.H.S.Gill, Senior Advocate with Mr.Vivek Goyal, Advocate, for the petitioner. Mr.Mehar Deep Singh, AAG, Punjab, for the State. Mr.P.S.Brar, Advocate, for respondent Nos.3 to 7. **** RANJIT SINGH, J. The petitioner is aggrieved against the action of Addl.Sessions Judge, Faridkot in remanding the case back for trial to Chief Judicial Magistrate, Faridkot by observing that offence under Section 366 IPC is not made out. Grievance also is that even if the Criminal Revision No.1282 of 2008 : 2 : case was to be so remanded to the Chief Judicial Magistrate, Faridkot, Addl.Sessions Judge was required to frame a charge and then remand the case for trial to the Chief Judicial Magistrate. One Dr.Satpal Aggarwal submitted application to S.S.P.Faridkot for registration of a case against the respondents with the allegation that his daughter Puchi was class-mate of one Satpal Singh, respondent No.2. Respondent No.2 allegedly posed himself to be residing in the house of his maternal aunt, who settled in U.K. He further made out to the daughter of the complainant that he could arrange her going to U.K. Respondent No.2 along with other respondents allegedly connived with each other and performed a fake marriage to enable her to go to U.K. It is also alleged that respondent No.2 allured the daughter of the petitioner to part with her savings and pocket money of Rs.25,000/-. Allegation of demanding Rs.2.00 lacs from the daughter of the petitioner is also made for arranging immigration. On the basis of allegations so made, FIR was registered. During the course of investigation, it was revealed that respondent No.2, in connivance with his companions, obtained the signatures of Puchi, daughter of the petitioner, on some blank papers and by showing the bogus marriage, made an attempt to blackmail the girl and her parents. It is on this basis that FIR under Sections 420, 506, 120-B, 419, 363, 366, 465, 468, 471 and 496 IPC was registered and challan presented. At the time of framing charge, Addl.Sessions Judge, Faridkot came to conclude that offence under Section 366 IPC, which is exclusively triable by the Court of Sessions, was not made out. Criminal Revision No.1282 of 2008 : 3 : Accordingly, case was directed to be sent back to the Court of Chief Judicial Magistrate, Faridkot for trial in accordance with law. Mr.H.S.Gill, learned Senior counsel appearing for the petitioner would first contend that offence under Section 366 IPC is clearly made out against the respondents and as such the action of the Addl.Sessions Judge to send the case for trial to Chief Judicial Magistrate cannot be sustained. He would further contend that even if the case was to be sent back for trial, the Addl.Sessions Judge, Faridkot was under legal obligation to frame the charge and then remit the case for trial to Chief Judicial Magistrate as provided under Section 228 Cr.P.C. Learned counsel has placed reliance on the case of Onkar Nath Mishra and others v. State (NCT of Delhi) and another, 2008(1) RCR (Criminal) 335 to say that at the time of framing charge, court is to see if the material and documents placed before it disclose ingredients of offence and at this stage strong suspicion would justify the framing of a charge. It is further observed that it is not to be seen whether material was sufficient to convict the accused or not. In support of his second limb of submission, the learned counsel has referred to Jagdish Sharma v.State of Haryana, 1988(2) RCR (Criminal) 337. In fact, this court has issued notice of motion in this case only on this aspect that the Addl.Sessions Judge was to frame a charge and then send the case to the Chief Judicial Magistrate for trial. In case of Jagdish Sharma (supra), this court, no doubt, has taken this view, but it has been so held by simply reproducing the provisions of Section 228 Cr.P.C. and then stating that the case sent back to Chief Judicial Magistrate Criminal Revision No.1282 of 2008 : 4 : without framing of charge is not legally maintainable. On the other hand, Mr.Brar has referred to State through Tara Singh v. Y.V.Mehra and ors., 1988(1) RCR 679 to say that the provisions of Section 228 Cr.P.C. in this regard are not mandatory in nature. Section 228 Cr.P.C. no doubt provides that a case which is not exclusively triable by a Court of Session, then the court may frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate. It is further required to be read in the context of Section 228(b) which provides that case which is exclusively triable by the court,then the court shall frame in writing a charge against the accused. The word used in section 228 (a) is “may” while making a provision for framing of a charge against the accused in those cases which are not exclusively triable by the court of Sessions. It is to be seen if this provision can be considered mandatory in nature inasmuch as that if charge is not so framed while remitting the case back to Chief Judicial Magistrate, it would lead to prejudice or would result in any illegality. It is to be noticed that responsibility of framing the charge is on the court and material has to be judicially considered for framing a charge. If the case is to be tried by Chief Judicial Magistrate, it is primarily the said court which will be competent to decide if on the basis of material charge could be framed or not. No doubt, a reading of the provision of Section 228 Cr.P.C. would empower the Sessions Court to frame a charge while remitting the case for trial to Chief Judicial Magistrate. Referring the case back is a new and special provision in the Code and unless the requisite formalities prescribed in this section are Criminal Revision No.1282 of 2008 : 5 : complied with and the condition precedent to the exercise of the power under the section is fulfilled, the act of sending back the case can hardly be permitted to be done. Where the Sessions Judge frames a charge, the Magistrate has only to proceed with the trial. It has also been held that if the police papers and the evidence led before him disclose more offences, then Magistrate has undoubtedly a power to amend the charge and add those offences. If, however, no charge is framed by the Court of Session but only an opinion is expressed regarding the offences that appear to have been committed, then the Magistrate may frame such charge if he thinks fit that the record so discloses and has to follow the procedure laid down in Chap. XIX of the Code. Viewed in this background, it cannot be said that the requirement of framing a charge at the time of remitting the case back to Chief Judicial Magistrate is a mandatory requirement. In Y.V.Mehra's case (supra), Himachal Pradesh High Court has held that this omission on the part of Sessions Judge is not an illegality because this duty cast upon the Sessions Judge is only directory and not mandatory which is indicated by the words `he may frame a charge against the accused'. As per Prof.Wade, the hallmark of discretionary power is permissive language using words such as “may” or “it shall be lawful”, as opposed to obligatory language such as “shall”. It is also observed that the simple distinction is not always a sure guide, for there have been many decisions in which permissive language has been construed as obligatory. The misconception sometimes is caused in some cases by saying that “may” means “must”. So long as the English language Criminal Revision No.1282 of 2008 : 6 : retains its meaning it never can mean “must”. Where a Judge has a power given to him by use of word “may” and it becomes his duty to exercise it, then it may sometimes mean “shall”. When the language used in Section 228 Cr.P.C. is noticed in this context, it would be reasonable to say that the word “may” as used in Section 228(1)(a) that `Court of Sessions may frame a charge', would not convey a meaning that this duty is cast on him as an obligation. Section 228(1) (a) apparently is not leaving any power in regard to framing of charge and it cannot be, thus, construed that Sessions Judge would have a duty to frame charge while transferring the case for trial to the Chief Judicial Magistrate. In that sense, it can be said that the provisions of Section 228(1)(a) are not mandatory, but are directory and hence would not lead to any incurable infirmity. The action of the Addl.Sessions Judge in not framing the charge for the offences which are made out from the record, as such, is not considered a mandatory requirement and would not lead to any incurable infirmity. Even in the case of Jagdish Sharma (supra), this court had directed the Addl.Sessions Judge to frame a charge by saying that remanding the case back to the Magistrate without framing the charge is not legally maintainable. The requirement being not mandatory would not call for interference and Chief Judicial Magistrate is well within its power to frame charges against the respondents. There would be no compelling requirement for this court to interfere in the exercise of revisional jurisdiction just to send the case back to the Court of Addl.Sessions Judge for framing a charge and then for remitting the case for trial to the Chief Judicial Magistrate when the same exercise Criminal Revision No.1282 of 2008 : 7 : is legally permissible before the Chief Judicial Magistrate as well. The submission made by the learned counsel for the petitioner that offence under Section 366 IPC is made out would also not impress me. Addl.Sessions Judge has given valid reasons to come to this conclusion that it is not a case of abduction. It is noticed by the Addl.Sessions Judge that neither the complainant-petitioner nor his daughter Puchi has alleged that she was abducted by Satpal Singh, respondent No.2 in order to compel her to marry him. The only allegation made against respondent No.2 in the FIR is that he performed fake/false marriage only to complete certain formalities so that Puchi may go abroad. From this, no allegation of abduction is made out. The submission by the counsel that even deceitful mean employed by respondent No.2 to take away Puchi, the daughter of the complainant, would attract the offence of abduction as given in Section 362 IPC would also not help the cause of the petitioner. It is not a case of taking away by deceitful means, but a case of fake marriage between the daughter of the complainant and respondent No.2 knowingly performed for the purpose of arranging immigration. The offence of abduction, as such, is not made out. Undoubtedly, charge can be framed on the basis of a strong suspicion as held in the case of Onkar Nath Mishra (supra), but there is no material on record in this case, which would go to raise even a suspicion of abduction against the respondents. The view taken by the Addl.Sessions Judge, thus, is fair and would not call for any interference. Criminal Revision No.1282 of 2008 : 8 : The revision petition is accordingly dismissed. October 15, 2008 ( RANJIT SINGH ) ramesh JUDGE