*THE HONOURABLE SRI JUSTICE P.S.NARAYANA +Crl.P.No.1941 of 2010 %17-03-2010 #Yerukali Sathupati Sekhar and another …. PETITIONERS Vs. $ The State of A.P., rep by Public Prosecutor, High Court of Andhra Pradesh, Hyderabad and another …. RESPONDENTS !Counsel for the Appellants: Sri Padmanabha Reddy Counsel for the Respondents: Public Prosecutor <Gist : >Head Note: ? Cases referred: 1. (2008) 2 SCC 561 2. AIR 1986 Supreme Court 2045 3. AIR 1980 Andhra Pradesh 219 4. AIR 1978 Supreme Court 47 5. AIR 1997 Supreme Court 2401 6. AIR 2000 Supreme Court 665 7. AIR 1999 Supreme Court 2562 8. AIR 2001 Supreme Court 1375 9. AIR 1999 Supreme Court 2071 10. AIR 2002 Supreme Court 64 11. AIR 1977 Supreme Court 2229 12. AIR 1977 Supreme Court 2018 13. AIR 1979 Supreme Court 366 14. AIR 1986 Supreme Court 833 15. AIR 1980 Supreme Court 258 IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE SEVENTEENTH DAY OF MARCH TWO THOUSAND AND TEN PRESENT: THE HON'BLE SRI JUSTICE P.S. NARAYANA CRIMINAL PETITION No.1941 of 2010 Between: Yerukali Sathupati Sekhar and another ... PETITIONERS AND The State of A.P., rep. by the Public Prosecutor, High Court of Andhra Pradesh, Hyderabad and another ... RESPONDENT ORDER: Heard Sri Padmanabha Reddy, learned senior counsel representing the petitioners/A-45 and A-46 and the learned Additional Public Prosecutor representing the respondent. 2. On 04-03-2010 when the matter came up for admission this court had adjourned the matter giving an opportunity to the learned Additional Public Prosecutor to get instructions. Thus, the matter is coming up for admission today. 3. Sri Padmanabha Reddy, the learned senior counsel representing the petitioners would maintain that the learned II Additional Sessions Judge, Kurnool at Adoni totally erred in dismissing the application holding that the Court need not look into the evidence and the admissibility or inadmissibility thereof at the time of framing of the charges. The learned counsel also would maintain that when the confession statement is clearly inadmissible, to permit the prosecution, to further proceed with the trial so far as it relates the petitioners/A-45 and A-46 would be just a futile exercise. Hence, the learned senior counsel would submit that inasmuch as practically there is no acceptable evidence or admissible evidence at all, as against the petitioners/A-45 and A- 46, the petitioners are entitled for a discharge. 4. The learned Additional Public Prosecutor would maintain that it is a confessional statement made by A-44 which lead to the discovery of bombs in the houses of petitioners/A-45 and A-46 and hence, it cannot be said that such confession statement is clearly inadmissible. Even otherwise this is a matter to be gone into at the appropriate stage. The learned Additional Public Prosecutor also would maintain that the schedule of the Sessions trial already had been fixed and the same to commence from 25-03-2010 onwards. 5. This Criminal Petition is filed under Section 482 of Code of Criminal Procedure (hereinafter referred as ‘Code’ in short for the purpose of convenience) praying for quashing of the charges framed against the petitioners/A-45 and A-46 in Sessions Case No.63 of 2009 on the file of the II Additional Sessions Judge, Kurnool at Adoni. The petitioners filed Crl.M.P.No.160 of 2009 in S.C.No.63 of 2009 on the file of the II Additional Sessions Judge, Kurnool at Adoni under Section 239 of the Code praying the court to discharge the petitioners/A-45 and A-46 from the charges on the ground of none of the witnesses had spoken anything about the involvement of the petitioners/A-45 and A-46 and the confession statement recorded by the Investigating Officer only refers to pooling of the required equipment for preparation of bombs and it is inadmissible evidence and even if the entire version of the prosecution to be taken since there is no incriminating material against petitioners/A-45 and A- 46, they are entitled for a discharge. 6. The learned Judge at paragraph No.4 had formulated the following point for consideration: Whether there is no prima facie material against the petitioners/A-45 and A-46 to proceed with framing of charges? 7. The learned Judge relied on ONKAR NATH MISHRA v. STATE (NCT OF DELHI)[1] recoded reasons at paragraph Nos.6, 7 and 8 and ultimately dismissed the application. Aggrieved by the same the present Criminal Petition had been filed under Section 482 of the Code. 8. The learned Judge at paragraph No.8 observed as hereunder: “As per the above decision of the Hon’ble Supreme Court of India, the Court is not expected to go deep into the probative value of the material on record, and the Court is not required to appreciate the evidence to conclude whether the material produced was sufficient or not for convicting the accused. According to the learned counsel for the petitioners/A-45 and A-46, as the above statement is inadmissible in evidence it cannot be taken into consideration at the stage of framing charges. We are at the stage of only framing charges. In my view the above aspect needs no consideration at this stage. I find no merit in the above argument of the learned counsel for the petitioners/A-45 and A-46 that the confessional statement of A-42/co-accused is inadmissible in evidence and is to be excluded from the material produced by the prosecution at the time of framing charges. The observation of the Hon’ble Supreme Court, in the above decision “the Court is not required to appreciate the evidence to conclude whether the material produced was sufficient or not for convicting the accused,” is to be noted with great significance. Hence, I am of the opinion that there is prima-facie case against the petitioners/A-45 and A-46 to proceed with framing of charges.” 9. I n ONKAR NATH MISHRA’s case cited supra it was observed as follows: “At the stage of framing of charge the court is required to evaluate the material and documents on record with a view to find out if the facts emerging therefrom, taken at their face value, disclose the existence of all the ingredients constituting the alleged offence. What needs to be considered is whether there is a ground for presuming that the offence has been committed and not a ground for convicting the accused has been made out. At that stage, the court is not expected to go deep into the probative value of the material on record. The court is not required to appreciate evidence to conclude whether the materials produced are sufficient or not for convicting the accused. The material brought on record by the prosecution has to be accepted as true at that stage. At that stage, even strong suspicion founded on material which leads the court to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged would justify the framing of charge against the accused in respect of the commission of that offence.” 10. The scope of ambit of Sections 227, 239, 240 and 245 of the Code had been well discussed in R.S. Nayak v. A.R. Antulay and another[2]. The Apex Court at paragraph No.44 observed that: “As pointed out by the Constitution Bench in the judgment to which reference has been made, the relevant sections of the Code of Criminal Procedure (‘Code’ for short) for the trial of a case of this type are Sections 244, 245 and 246. Section 245 (1) provides: “If upon taking of the evidence referred to in S.244, 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, the Magistrate shall discharge him.” While Section 246 (1), 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 Session under S.277 in case triable by it; cases instituted upon a police report are covered by S.239 and cases instituted otherwise than on police report are dealt with in S.245. The three sections contain some what different provisions in regard to discharge of the accused. Under S.277, 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 S.239 arises when “the Magistrate considers the charge against the accused to be groundless.” The power to discharge is exercisable under S.245 (1) 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 Ss.227 and 239 provide for discharge being ordered before the recoding 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 S.245, on the other hand, is reached only after the evidence referred to in S.244 has been taken. 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 under S.245(1) is a preliminary one and the test of “prima facie” case has to be applied. In spite of the different 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.” 11. Section 227 of the Code reads as hereunder: “Discharge: If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing.” 12. Section 239 of the Code reads as hereunder: “When accused shall be discharged: If, upon considering the police report and the documents sent with it under Section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing.” 13. Section 240 of the Code reads as hereunder: “Framing of charge: (1) If, upon such consideration, examination, if any, and hearing, 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 could be adequately punished by him, he shall frame in writing a charge against the accused. (2) The charge shall then be read and explained to the accused, and he shall be asked whether he pleads guilty of the offence charged of claims to be tried” 14. Section 245 of the Code reads as hereunder: “When accused shall be discharged: (1) If, upon taking all evidence referred to in section 244, the Magistrate consider, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him. (2) Nothing in this section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless.” 15. This Criminal Petition is filed under Section 482 of the Code and the said provision reads as hereunder: “Saving of inherent powers of High Court: Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any court or otherwise to secure the ends of justice.” 16. In case of T.V. Sarma v. R. Meeraiah and others[3] the Full Bench of this Court observed that: “It is clear from Section 227 that the Sessions Judge is bound to discharge the accused if he considers that there is no sufficient ground for proceeding against the accused. The language is wide enough to include any ground which he considers sufficient for not proceeding against the accused. The ground may be that the evidence produced is not sufficient to warrant the Sessions Judge to proceed against the accused or it may be that there is no legal ground for proceeding against the accused even on the facts placed before him. If therefore, the Sessions Judge finds that the accused cannot be proceeded against as no sanction has been obtained or that the prosecution is clearly barred by limitation or that he is precluded from doing so because of a prior judgment of the High Court, the Sessions Judge is not only justified in discharging the accused but is bound to do so.” 17. In Madhu Limaye v. State of Maharastra[4] the following principles had been stated in relation to the exercise of the inherent powers of the High Court:- 1. That the power is not to be resorted to if there is a specific provision in the Code for the redress of the grievance of the aggrieved party; 2. That it should be exercised very sparingly to prevent abuse of process of any Court or otherwise to secure the ends of justice; 3. That it should not be exercised as against the express bar of law engrafted in any other provision of the Code. 18. It is not necessary to have meticulous analysis of material to find out whether the case would end in conviction or not at this stage. Reliance also had been placed on State of J. and K, v. Romesh Chander and others[5], State of MP v. S.B. Johari and others[6], Umar Abdul sakoor Sorathaiah v. Intelligence Officer, Narcotic Control Bureau[7], Suresh @ Pappu Bhudharmal Kalani v. State of Maharastra[8], Arun Vyas and another v. Anitha Vyas[9], State of Bihar v. Baidnath Prasad @ Baidyanath Shah and another[10], Kurukshetra University and another v. State of Haryana and anothr[11], State of Bihar v. Ramesh Sing[12], Union of India v. Prafulla Kumar Samal and another[13], J.P.Sharma v. Vinod Kumar Jain and others[14], Raj Kapur and others v. State (Delhi Administration) and others[15]. 19. On a careful analysis of the material available on record, the strength on which the learned II Additional Sessions Judge, Kurnool at Adoni was inclined to further proceed with the trial as against this petitioners as well, it cannot be said that absolutely there are no grounds at all to frame the charges against the petitioners, at any rate, and liberty is given to the petitioners to raise all these grounds at the appropriate stage if the petitioners are so advised. 20. Subject to the aforesaid liberty the Criminal Petition shall stand dismissed. ___________________ P.S. NARAYANA, J March 17, 2010. PN Note: L.R. Copy to be marked. THE HON'BLE SRI JUSTICE P.S. NARAYANA CRIMINAL PETITION No.1941 of 2010 March 17, 2010 [1] (2008) 2 SCC 561 [2] AIR 1986 Supreme Court 2045 [3] AIR 1980 ANDHRA PRADESH 219 [4] AIR 1978 Supreme Court 47 [5] AIR 1997 Supreme Court 2401 [6] AIR 2000 Supreme Court 665 [7] AIR 1999 Supreme Court 2562 [8] AIR 2001 Supreme Court 1375 [9] AIR 1999 Supreme Court 2071 [10] AIR 2002 Supreme Court 64 [11] AIR 1977 Supreme Court 2229 [12] AIR 1977 Supreme Court 2018 [13] AIR 1979 Supreme Court 366 [14] AIR 1986 Supreme Court 833 [15] AIR 1980 Supreme Court 258