- (1.) THIS case raises two interesting legal issues firstly, at the time of framing charge, whether the trial Court should consider the evidence in favour of the accused, contained in the record of the case or not? Secondly, what criteria should be applied for while framing the charge?
(2.) THESE issues arise in the following factual background: In April, 1999, one Prabhu Dayal filed a criminal complaint before the Additional Civil Judge (Junior Division) Judicial Magistrate No. 6, Jaipur City, Jaipur wherein he alleged that he is engaged in construction activities. According to him, in 1997, he had constructed petitioner's house, for which the petitioner owed him an amount of Rs.1,76,000/- On 21-2-1999, he, along with Kalu Ram Gurjar and Pappu Lal Saini, went to the petitioner's house for asking for the payment of the amount due. When he asked the petitioner to pay,the amount, allegedly the petitioner started assaulting him and also used foul language with regard to his caste status. The learned Magistrate sent the said complaint for investigation under Section 156(3), Cr. P. C. to the Police Station, Adarsh Nagar, Jaipur. The Police registered a formal FIR, FIR No. 6-4/1999, for offences under Sections 323, 341, 504, IPC and Section 3(1) (x) of SC/ST (Prevention of Atrocities) Act ('the SC/ST Act' for short). Since an offence under the provisions of SC/ST Act was involved, the investigation was conducted by a Dy. S. P, After conducting a thorough investigation, the police concluded that no such incident had taken place as claimed by the complainant. Therefore, it filed a negative final report. The. complainant, in turn, filed a protest petition. The learned Magistrate recorded the statements of the complainant and of his witnesses. Subsequently, notwithstanding the negative final report, the learned Magistrate took cognizance for the offences under Sections 323, 341, 504, IPC and Section 3(1)(x) of the SC/ST Act. Thereafter, the learned Magistrate committed the case for trial to the Court of Special Judge SC/ST (Prevention of Atrocities) Cases, Jaipur. Vide order dated 8-7-2004, while the learned trial Judge discharged the petitioner from the offence under Section 341 IPC, he framed the charges for the offences punishable under Sections 323 and 504, IPC and under Section 3(1)(x) of the SC/ST Act. Hence, this petition before this Court. Mr. Vivek R. Bajwa, the learned counsel for the petitioner, has raised a plethora of contentions: firstly, in cases instituted otherwise than on a police report, according to Section 208, Cr. P. C. the accused is entitled to copies of the statements and documents. According to the said provision, the accused is entitled to the statements recorded under Section 200 or 202, Cr. P. C. of all persons examined by the Magistrate, the statements and confession, if any, recorded under Section 161 or 164, Cr. P. C. and lastly to every document produced before the Magistrate on which the prosecution proposes to rely upon. According to the learned counsel the accused is, thus, entided to all the statements recorded under Section 161, Cr. P. C. by the police, be the statement incriminatory or exculpatory in nature. Secondly, according to Section 227, Cr. P. C, the learned trial Court is legally required to consider the record of the case and the documents submitted therewith. The words "record of the case" and "the documents submitted therewith" would include the statements given to the accused under Section 208, Cr. P. C. Thus, under Section 227, Cr. P. C. while considering the issue whether the accused should be discharged or not, the trial Judge is legally bound to consider even those statements recorded by the police under Section 161, Cr. P. C. which are exculpatory in nature. Thirdly, while considering the question of framing of charge or of discharge, the learned trial Judge should sift the evidence to see if a strong prima facie case is made out against the accused. In case, there are two interpretations of the evidence, then the accused should be discharged. Fourthly, the learned trial Court should not act either as a mouth-piece or as a post office for the prosecution.
(3.) FIFTHLY, that before the Judge can frame a charge against the accused he should sift through the evidence, contained in record of the case, and form an opinion that there is reasonable likelihood of conviction. However, in the present case sufficient number of witnesses have claimed that no such incident, ever took place, as alleged by the complainant. Thus, there is hardly any possibility of the petitioner's conviction by a Court of law. Sixthly, there is no evidence to show that the offence under Section 504, IPC has been committed. For, the complainant does not claim, in his statement, that he was intentionally insulted or provoked to the point that he would have breached public peace or would have committed any other offence. In fact, he merely claims that when he was verbally abused, he simply walked away from the place. Hence, the essential ingredients of Section 504, IPC are non-existent in the present case. Despite the conspicuous absence of the essential ingredients, still the learned Judge has framed the charge for offence under Section 504, IPC. On the other hand, Mrs. Alka Bhatnagar, the learned Public Prosecutor, has contended that at the time of framing charge, the function of the learned trial Judge is very limited. Firstly, he cannot meticulously examine the evidence. He is permitted to sift through the evidence to the limited extent to see if "a strong prima facie case" exists with regard to the commission of offence by the accused. Therefore, the learned trial Judge need not consider those statements which are exculpatory in nature. Secondly, that the essential ingredients of Section 504, IPC are made out. Hence, she has supported the impugned order. ;