Case: R.S. Mishra Vs. State of Orissa &amp; Others

at the appropriate stage and issue of a process could not be refused". Illustratively, Shelat, J., further added "Unless, therefore, the Magistrate finds that the evidence led before him is self- contradictory, or intrinsically untrustworthy, process cannot be refused if that evidence makes out a prima facie case".(emphasis supplied) Further, as observed later in paragraph 6 of a subsequent judgment of this Court in Niranjan Singh Vs. Jitendra Bhimraj [1990 (4) SCC 76 ], at the stage of the framing of the charge, the Judge is expected to sift the evidence for the limited purpose to decide if the facts emerging from the record and documents constitute the offence with which the accused is charged. This must be reflected in the order of the judge. 21. Thus it cannot be disputed that in this process the minimum that is expected from the Judge is to look into the material placed before him and if he is of the view that no case was made out for framing of a charge, the order ought to be clear and self-explanatory with respect to the material placed before him. In the present case, all that the appellant stated in his order dated 21.03.1996 was, that on consideration of the material available in the case diary, he had found that there was no sufficient material to frame the charge under Section 302 of IPC. This is nothing but a bald statement and was clearly against the statement of the injured eye witness, and supporting medical papers on record. The appellant has not even referred to the same. He has also not stated in his order as to why he was of the opinion that the material available in the case diary was insufficient. Such a bald order raises a serious doubt about the bona fides of the decision rendered by the Judge concerned. 22. In the instant case, a young person had been killed. It was not a case of grave and sudden provocation. The material on record showed that there was an injured eye witness and there was the supporting medical report. The material on record could not be said to be self-contradictory or intrinsically unreliable. Thus, there was a prima facie case to proceed to frame the charge under Section 302 IPC. The reason given for dropping the charge under Section 302 was totally inadequate and untenable, and showed a non-application of mind by the appellant to the statements in the charge-sheet and the medical record. The order does not explain as to why a charge under Section 304 was being preferred to one under Section 302 IPC. In fact, since the material on record revealed a higher offence, it was expected of the appellant to frame the charge for more grievous offence and not to dilute the same. 23. The impugned order of the learned Single Judge deciding Revision notes that the appellant had been functioning in the rank of the District Judge from August 1991 onwards, i.e. for nearly 5 years prior to his order dated 21.3.1996. The impugned order further states in para 5, that a Judicial Officer, before being posted as an Additional Session Judge, gets an experience of taking the sessions cases as Assistant Session Judge. It cannot, therefore, be said that the appellant did not have requisite experience to pass a correct legal order under Section 228 of Cr.P.C. 24. That apart, all that the impugned order in Revision has done is to suggest to the High Court Administration, that if the appellant is not yet confirmed, his probation should wait and if he has already been confirmed, his performance be verified before giving him the higher scale. Since the appellant, was already confirmed in service, all that the High Court has done on the administrative side is to check his record, and thereafter to deny him the selection grade. The above observation in the impugned order in Revision is a suggestion to the Administration of the High Court. It is not a case of making any adverse or disparaging remarks as in the three cases cited on behalf of the appellant. In fact, in the first judgment cited by the appellant, in the case of V.K. Jain (supra), the observation of this Court in clause No. I of para 58 is very significant, namely that the erosion of the credibility of the judiciary in the public mind, for whatever reason, is the greatest threat to the independence of judiciary. Having noted that the appellant had failed in discharging his duty in framing the correct charge, and having also noted that his record was not good, the High Court could not have granted him the selection grade. The selection grade is not to be conferred as a matter of right. The record of the concerned Judge has to seen, and that having been done in the present case (in pursuance to the observations of the learned Single Judge), and having noted the serious deficiencies, the High Court has denied the selection grade to the appellant. Interestingly enough, in this Appeal by Special leave, the appellant is not directly seeking to challenge the denial of selection grade. He is challenging the observations in the impugned order which led to denial of the selection grade. In our view, the impugned order contained nothing but a correctional suggestion to the High Court Administration which the Administration has accepted. 25. It is only because of the note made by inspecting Judge that the cursory order passed by the appellant in the Sessions case diluting the charge against the accused came to the notice of the High Court Administration. It is contended on behalf of the appellant that in any case the suo-moto Revision has not led to the reopening of the case under Section 401 of the Code of Criminal Procedure. In this connection, we must note that by the time the suo-moto Revision was decided, the accused had already undergone the punishment of rigorous imprisonment of 5 years. Therefore,

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]20. The observations of this Court in the case of State of Bihar Vs. Ramesh Singh [AIR 1977 SC 2018 ] / [1977 (4) SCC 39 ] are very apt in this behalf. A bench of two Judges of this Court has observed in that matter that at the initial stage of the framing of a charge, if there is a strong suspicion/evidence which leads the Court to think that there is ground for presuming that the accused has committed an offence, then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. The Court referred to the judgment of a bench of three Judges in Nirmaljit Singh Hoon Vs. State of West Bengal [1973 (3) SCC 753 ], which in turn referred to an earlier judgment of a bench of four Judges in Chandra Deo Singh Vs. Prokash Chandra Bose [AIR 1963 SC 1430 ], and observed as follows in para 5:-"5. In Nirmaljit Singh Hoon v. State of West Bengal - Shelat, J. delivering the judgment on behalf of the majority of the Court referred at page 79 of the report to the earlier decisions of this Court in Chandra Deo Singh v. Prokash Chandra Bose - where this Court was held to have laid down with reference to the similar provisions contained in Sections 202 and 203 of the Code of Criminal Procedure, 1898 "that the test was whether there was sufficient ground for proceeding and not whether there was sufficient ground for conviction, and observed that where there was prima facie evidence, even though the person charged of an offence in the complaint might have a defence, the matter had to be left to be decided by the appropriate forum at the appropriate stage and issue of a process could not be refused". Illustratively, Shelat, J., further added "Unless, therefore, the Magistrate finds that the evidence led before him is self- contradictory, or intrinsically untrustworthy, process cannot be refused if that evidence makes out a prima facie case".(emphasis supplied)Further, as observed later in paragraph 6 of a subsequent judgment of this Court in Niranjan Singh Vs. Jitendra Bhimraj [1990 (4) SCC 76 ], at the stage of the framing of the charge, the Judge is expected to sift the evidence for the limited purpose to decide if the facts emerging from the record and documents constitute the offence with which the accused is charged. This must be reflected in the order of the judge.21. Thus it cannot be disputed that in this process the minimum that is expected from the Judge is to look into the material placed before him and if he is of the view that no case was made out for framing of a charge, the order ought to be clear and self-explanatory with respect to the material placed before him. In the present case, all that the appellant stated in his order dated 21.03.1996 was, that on consideration of the material available in the case diary, he had found that there was no sufficient material to frame the charge under Section 302 of IPC. This is nothing but a bald statement and was clearly against the statement of the injured eye witness, and supporting medical papers on record. The appellant has not even referred to the same. He has also not stated in his order as to why he was of the opinion that the material available in the case diary was insufficient. Such a bald order raises a serious doubt about the bona fides of the decision rendered by the Judge concerned.22. In the instant casea young person had been killed. It was not a case of grave and sudden provocation. The material on record showed that there was an injured eye witness and there was the supporting medical report. The material on record could not be said to be self-contradictory or intrinsically unreliable. Thus, there was a prima facie case to proceed to frame the charge under Section 302 IPC. The reason given for dropping the charge under Section 302 was totally inadequate and untenable, and showed a non-application of mind by the appellant to the statements in the charge-sheet and the medical record. The order does not explain as to why a charge under Section 304 was being preferred to one under Section 302 IPC. In fact, since the material on record revealed a higher offence, it was expected of the appellant to frame the charge for more grievous offence and not to dilute theobservation of this Court in clause No. I of para 58 is very significant, namely that the erosion of the credibility of the judiciary in the public mind, for whatever reason, is the greatest threat to the independence of judiciary. Having noted that the appellant had failed in discharging his duty in framing the correct charge, and having also noted that his record was not good, the High Court could not have granted him the selection grade. The selection grade is not to be conferred as a matter ofis only because of the note made by inspecting Judge that the cursory order passed by the appellant in the Sessions case diluting the charge against the accused came to the notice of the High Court Administration. It is contended on behalf of the appellant that in any case the suo-moto Revision has not led to the reopening of the case under Section 401 of the Code of Criminal Procedure. In this connection, we must note that by the time the suo-moto Revision was decided, the accused had already undergone the punishment of rigorous imprisonment of 5 years