IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr.Revision No.93 of 2011. Judgment Reserved on: 13.06.2011 Date of decision: 17.06.2011 Ashok Kumar Kapoor … …Petitioner Versus State of H.P. … …Respondent Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 No. For the Petitioner: M/s.Ajay Kochhar and Satyen Vaidya, Advocates. For the Respondent: Mr.P.K. Sharma, Additional Advocate General with Ms.Shubh Mahajan, Deputy Advocate General. Dev Darshan Sud,J. This petition has been preferred by the petitioner herein against the order framing charge against him for offences punishable under Section 409 IPC. 2. The submission made on behalf of the petitioner is that he was Chairman of the Board of Directors during the years 1993 to 1998. He could not be jointly charged with the other accused, as the charge against him is distinct and apart from the acts 1 Whether the reporters of Local Papers may be allowed to see the judgement? Yes. 2 of the other accused and it is not in any manner form a part of the same transaction. 3. The second ground urged is that the learned Court below has not in any manner indicated the material on which reliance has been placed to form an opinion that prima facie the petitioner is guilty. 4. Considering the law applicable, it is by now well settled that the Court cannot be expected to act as the mouth piece of the prosecution and at the time of framing of charge the Court has to sift through material on record to arrive at a prima facie conclusion. (See: Union of India Vs.Prafulla Kumar Samal and another, AIR 1979 SC 366, Niranjan Singh Karam Singh Punjabi, Advocate Vs.Jitendra Bhimraj Bijja and others, 1990 Crl.L.J.1869 and State of Karnataka Vs. L.Muniswamy and Others, (1977) 2 SCC 699). 5. It is also well settled that the Court is not required to appreciate the evidence in detail at that stage. (See: State of M.P. Vs. S.B. Johari and others, (2000)2 SCC 57). 6. Most of all, in Dilwar Balu Kurane Vs. State of Maharashtra, (2002)2 SCC 135, the Court is emphatic when it holds that the Court cannot act as the mouth piece of the prosecution. These principles are well settled and laid down. 7. In Parkash Singh Badal and another Vs. State of Punjab and others (2007) 1 SCC 1, the Supreme Court holds: 3 “45 With reference to the absence of allegations under Sections 8 and 9 of the Act, it is submitted whether the charge- sheet has reference to any particular material referred to in it and the relevance of it is to be considered at the time when the charge is framed. It would not be desirable to analyse minutely the materials as at that stage the court is primarily concerned with the question as to whether charge is to be framed in respect of any offence and whether prima facie there appears existence of any material and not the sufficiency of the materials. Therefore, the appellants’ stand that the charge-sheet does not refer to any particular material cannot be accepted, more particularly, in view of the specific materials referred to by the learned counsel for the respondent State.” (PP 36&37) (emphasis added) 8. Similarly, in Lalu Prasad alias Lalu Prasad Yadav Vs. State of Bihar through CBI (Adh) Patna, (2007) 1 SCC 49, the Court holds:- “13 The question raised relating to recording of reasons at the time of framing of charge is different from a case of opinion on the basis of which an order of discharge of the accused is passed. Sections 227 and 228 of the Code are with regard to discharge of the accused and framing of charges against the accused respectively in a case triable by the Court of Session; Sections 239 and 240 concern discharge and framing of charge in case of warrant, triable by the Magistrate whereas Section 4 245 deals with discharge and framing of charges in cases instituted other than on the police report, indicates the difference……………………………… 14……………………………………… 15. In Kanti Bhadra Shah V. State of W.B. (2000) 1 SCC 722: 2000 SCC (Cri) 303 again the question was examined. It was held that the moment the order of discharge is passed it is imperative to record the reasons. But for framing of charge the court is required to form an opinion that there is ground for presuming that the accused has committed the offence. In case of discharge of the accused the use of the expression “reasons” has been inserted in Sections 227, 239 and 245 of the Code. At the stage of framing of a charge the expression used is “opinion”. The reason is obvious. If the reasons are recorded in case of framing of charge, there is likelihood of prejudicing the case of the accused put on trial…………” (PP. 57 & 58) 9. But at the same time, the Court in Lalu Prasad Yadev’s case (supra) also held that where the question of jurisdiction is raised, the trial Court is required to adjudicate on that issue in particular the Court directs:- “16. But where the question of jurisdiction is raised and the trial court is required to adjudicate that issue, it cannot be said that reasons are not to be recorded. In such a case reasons relate to question of jurisdiction and not necessarily to the issue relating to framing of charge. In such a case reasons dealing with a plea 5 relating to jurisdiction have to be recorded.” (P.59) 10. So far as the question of prejudice is concerned, it is squarely covered by the provisions of Section 464 Cr.P.C. It will be open to the petitioner herein to demonstrate the prejudice which may occur/be caused to him at the trial etc. This petition is, therefore, disposed of at this stage with the direction that it will be open to the petitioner herein to show that the charge as framed against him causes serious prejudice to him and that joinder of such a charge alongwith the other charges, hinders fair trial. June 17, 2011. (Dev Darshan Sud) (aks) Judge.