IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr.Revision Nos.92 and 94 of 2011. Judgment Reserved on: 13.06.2011 Date of decision: 17.06.2011 Cr.Revision No.92 of 2011. 1. Mohinder Pal Sehgal … …Petitioner Versus State of H.P. … …Respondent Cr.Revision No.94 of 2011. 2. Mahesh Behl … …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. Both these petitions are being disposed of by a common judgment. 2. The petitioners have been charged for offences under Sections 409 and 120-B read with Section 34 IPC. The case relates to waiver of loans and grant of OTS (One Time Settlement) etc. The First 1 Whether the reporters of Local Papers may be allowed to see the judgement? Yes. 2 Information Report was lodged in the year 2006 and the case is now at the stage of charge after a period of more than five years. Primary ground urged by the learned counsel appearing for the petitioner is that the charge does not conform to the principles of law as contained in Section 223 Cr.P.C. 3. There is no indication as to how and on what basis the Court has come to the conclusion that prima facie the petitioners are guilty of the offences. 4. Considering the law applicable to framing of charge, 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 3 settled and laid down in cases as urged by the learned counsel appearing for the petitioner. 7. In Parkash Singh Badal and another Vs. State of Punjab and others (2007) 1 SCC 1, the Supreme Court holds: “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 4 227 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 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:- 5 “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 relating to jurisdiction have to be recorded.” (P.59) 10. Learned counsel also places reliance on two more decisions of the Supreme Court in Chitresh Kumar Chopra vs. State (Government of NCT of Delhi), (2009)16 SCC 605 holding:- “16. Speaking for the three-Judge Bench, R.C. Lahoti, J. (as His Lordship then was) said that instigation is to goad, urge forward, provoke, incite or encourage to do "an act". To satisfy the requirement of "instigation", though it is not necessary that actual words must be used to that effect or what constitutes "instigation" must necessarily and specifically be suggestive of the consequence. Yet a reasonable certainty to incite the consequence must be capable of being spelt out. Where the accused had, by his acts or omission or by a continued course of conduct, created such circumstances that the deceased was left with no other option except to commit suicide, in which case, an "instigation" may have to be inferred. A word uttered in a fit of anger or emotion without intending the consequences to actually follow, cannot be said to be instigation. (p.611) 6 11. In P.Vijayan vs. State of Kerala and Another, (2010)2 SCC 398 the Court holds:- “11. At the stage of Section 227, the Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused. In other words, the sufficiency of ground would take within its fold the nature of the evidence recorded by the police or the documents produced before the Court which ex facie disclose that there are suspicious circumstances against the accused so as to frame a charge against him. 25. As discussed earlier, Section 227 in the new Code confers special power on the Judge to discharge an accused at the threshold if upon consideration of the records and documents, he find that "there is not sufficient ground" for proceeding against the accused. In other words, his consideration of the record and document at that stage is for the limited purpose of ascertaining whether or not there is sufficient ground for proceeding against the accused. If the Judge comes to a conclusion that there is sufficient ground to proceed, he will frame a charge under Section 228, if not, he will discharge the accused. This provision was introduced in the Code to avoid wastage of public time which did not disclose a prima facie 7 case and to save the accused from avoidable harassment and expenditure.” (pp.402 & 406) 12. All the decisions lay down one principle and that is that the Court is not supposed to act on the dictation and at the behest of the prosecution. 13. Adverting to Lalu Prasad Yadev’s case (supra), I do not find that the submissions made by learned counsel appearing for the petitioner can be accepted in toto. The case is at the stage of recording evidence and it will not be in the fitness of things to sift the evidence in its finest detail with a tooth comb, as urged by learned counsel appearing for the petitioners, insisting on the learned trial Court to furnish elaborate reasons for framing of charge. It is more so, in view of the fact that prosecution evidence is already being recorded. It will be open to the petitioners to urge the prejudice, if any, with respect to the framing of charge at the appropriate stage before the learned trial Court. Petition is disposed of. June 17, 2011. (Dev Darshan Sud) (aks) Judge.