- (1.) THIS is a reference made by Mr. Sukhdeo Mirdha, Sessions Judge of Partapgarh, for quashing charges framed against the petitioner by the trial Magistrate under secs. 409 and 201 of the Indian Penal Code.
(2.) THE relevant facts leading to this reference are that one Shri Virendra Singh, Opium Inspector, took possession from the Rodi of Guldad Khan of village Devaldi some opium contained in a handi. THE opium is alleged to have weighed about 4 seers 4 chhataks. Some opium is also said to have been recovered by the officer from the possession of one Salar Jung which was also contained in handi. Both these handis were duly sealed by the Excise Officer and were kept at the Police Station, Arnod in the Malkhana for which a receipt was granted to the officer by B. J. Habib Khan. At the time of the recovery of opium contained in those handis, samples were also taken for examination by the public analyst and according to the report of Public Analyst it was found that the substance contained in the handis was opium within the meaning of the Opium Act. All this took place in March and April, 1956. In the meantime, it appears that one Sher Ali was put up for trial before the Sub Divisional Magistrate, Pratapgarh for offence under sec. 9 of the Opium Act under similar circumstances. A prayer was made in the course of the trial for the accused that the contents of the handis, which were alleged to have contained opium, should be examined, but when the handis were opened, it was found that there was no opium in them. This aroused the suspicion of the police which led to an examination also of the contents of the handis which were said to have been recovered from the possession of Guldad Khan and Salar Jung and were kept in the Malkhana. THEse handis were also found not to contain opium but some rubbish and molasses. On the strength of an inquiry by the Anti-Corruption Department, it is alleged that the petitioner along with Habib Khan and Amba Shanker as also with the help of Kalu Luhar took out the handis from the Malkhana of Police Station, Arnod, between 18th and 24th November, 1956, and having removed the opium contained therein substituted rubbish and gur in its place and then putting seals thereon restored the handis to the Malkhana. THE Magistrate, who took cognizance of the case on the police report, framed charges against the petitioner under sec. 409 and 201 of the Indian Penal Code. It should be noted at this stage that no evidence has yet been recorded by the Magistrate who has framed charges on the materials placed before him along with the police report and after hearing the parties. Under sec. 251-A of the Criminal Procedure Code, the Magistrate is entitled to do so if, on the relevant considerations as mentioned therein, the Magistrate thinks that there is ground for the presumption that the accused has committed an offence triable under the Code, which such Magistrate is competent to try. On the other hand, if he finds on those materials that the charges are groundless, he is entitled to discharge the accused. The learned Sessions Judge, however, has hastened to make this reference on his own detailed examination of the evidence of certain persons examined by the police and has tried to substitute his own discretion for that of the Magistrate. To my opinion, it was quite unnecessary for him to do so. The learned Judge should have realised that at that stage all that had to be seen was whether on the materials before him the Magistrate exercised a proper judicial discretion in framing the charges against the accused. Even on the materials referred to in the order of reference by the learned Sessions Judge, it appears that during the relevant period when the handis are said to have been removed from the Malkhana, the petitioner accused was the head constable incharge, posted at the police station and he was entrusted with the keys of the Malkhana. It is true that the other constable, Amba Shanker, was also working under him and from time to time used to obtain the keys from him; but can it be said that on the materials, as they were, the charges were groundless? It may be that when the evidence comes to be recorded there may be actually no evidence to connect the petitioner with the offences in question and that the keys may have been taken from him on some mis-representation or otherwise, or it may also be that there may be evidence directly to connect the petitioner with the offences in question, but these are matters with which we are not concerned at this stage. After all the evidence recorded by the police is not sacrosanct. Much would depend upon the evaluation of the evidence adduced before the trying Magistrate and all that the learned Sessions Judge was concerned to examine at this stage was whether the charges framed by the magistrate were groundless and whether he did not exercise a proper judicial discretion in the matter. Nothing has been shown to indicate that the Magistrate was in error in framing these charges. The learned Magistrate in his explanation observes that evidence has yet not been gone into and the prosecution has made allegations against the petitioner for which, in his opinion, there appears to be prima facie some material. On that ground he has framed the charges against him. The learned Sessions Judge was, therefore, in error in anticipating the entire prosecution case and in taking pains to examine at great length all that evidence that may have been recorded by the police during investigation. I see no valid reason at this stage to interfere with the step taken by the Magistrate, which, in my opinion, is prima facie justified under the law. It is unnecessary for me to go into details of the matter and make any observation either to the prejudice of the petitioner or that of the prosecution. With these observations, I discharge the reference, which is quite misconceived. .;