Criminal Revision No.847 of 1996 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Revision No.847 of 1996 Date of decision: March 11, 2008 Bhim … Petitioner Versus Dr. Laik Ram Dabas and others … Respondents CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: None for petitioner. Mr. A.P.S.Deol, Senior Advocate for respondents. KANWALJIT SINGH AHLUWALIA, J. (Oral) This revision petition is pending in this Court since 1996. Petition was filed by Mr.Bhupinder Kakkar, who has expired. This Court noticed this fact in its order dated February 22, 2008 and Sh.Ashok Sharma, Advocate who was present in the Court, stated that son and the daughter of Mr.Kakkar, who was counsel and had expired, are looking after his office. An effort was made to inform them but yet nobody appeared on February 27, 2008. This fact was recorded in the order of that date. Today again, nobody has appeared. Mr.A.P.S.Deol, Senior Advocate is present on behalf of the respondents. I have heard him. This petition can be disposed off, as no adverse order to the interest of the petitioner is being passed. Therefore, representation of the petitioner through his counsel is not necessary. Criminal Revision No.847 of 1996 2 From the facts stated by Mr.Deol, it emerges that petitioner had filed a complaint in the Court of Special Judge directly, who had held that there are no sufficient grounds for proceeding against the accused under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. Mr.Deol has stated that now law is well settled that complaint should have been filed in the Court of Judicial Magistrate (1st Class) at the first instance. R.S. Nayak v. A.R.Antulay and Another AIR 1986 Supreme Court 2045 lay the mandate that test for framing charge in complaint case will be same as in police case, thereby distinction between Sections 227 and 245 Cr.P.C. has been done with. Therefore, the Court below was bound to apply test of prima facie at the time of framing of charge/discharge. It will be apposite here to reproduce para 44 of the judgement and reliance placed in that judgement upon the observations of Hon'ble the Supreme Court in Superintendent and Remembrancer of Legal Affairs, West Bengal v. Anil Kumar AIR 1980 Supreme Court 52:- “44. As pointed out by the constitution Bench in the judgement 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” Criminal Revision No.847 of 1996 3 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, could 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. 227 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 somewhat different provisions in regard to discharge of the accused. Under S. 227, 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 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 Criminal Revision No.847 of 1996 4 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 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”. XXXX XXXX XXXX XXXX “....In Superintendent and Remembrancer of Legal Affairs, West Bengal v. Anil Kumar, (1979) 4 SCC 274: (AIR 1980 SC 52), a three Judge Bench of this Court said: “At this stage, as was pointed out by this Court in State of Bihar v. Ramesh Singh, (AIR 1977 SC 2018), the truth, veracity and the effect of the evidence which the prosecution proposes to adduce are not to be meticulously judged. The standard of test, proof and judgement which is to be applied finally before finding the accused guilty or otherwise is not exactly to be applied. At this stage, even a very strong suspicion founded upon materials before the Magistrate which leads him to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged may justify the framing of charge...” Criminal Revision No.847 of 1996 5 A perusal of order passed by Special Judge, Kaithal reveals that he has adjudged the preliminary evidence as if a final judgment of conviction or acquittal was being passed. Therefore, impugned order is set aside without observing anything on the merits of the case. Accordingly, compliant No.4 of 1995 instituted on 21st December, 1995 in the Court of Special Judge, Kaithal be transmitted to the Court of concerned Judicial Magistrate (1st Class), who will afford an opportunity to the complainant by issuing notice to him and if necessary, complainant will be at liberty to lead his preliminary evidence afresh. The learned Judicial Magistrate (1st Class) will formulate his own opinion without taking into consideration the opinion expressed by Special Judge, Kaithal or by this Court. With these observations, present revision petition is disposed off. [Kanwaljit Singh Ahluwalia] Judge March 11, 2008. rps