TAPATI BAG Vs. PATITPABAN GHOSH

JUDGEMENT

(1.) By an order dated the 25th August, 1988 the learned Additional Sessions Judge, 1st Court, Suit framed charge against the accused opposite party No. 1 under section 376 I.P.C. for committing rape on one Smt. Tapati Bag. The learned Additional Sessions Judge also took the plea of the accused on that charge and the accused pleaded not guilty and claimed to be tried, it is obvious that the learned Additional Sessions Judge framed the charge and took the plea of the accused by exercising the power conferred by section 228 of the Code of Criminal Procedure. Subsequently, on 6th November, 1990 the accused filed a petition before the learned Court of Additional Sessions Judge for reconsideration of charge and on that petition the learned Additional Sessions Judge by his order dated the 20th November, 1990 reconsidered the question of framing of charge and on reconsideration of the materials was of the view that no framing of charge was warranted against the petitioner in view of the evidence on record and accordingly discharged the accused under section 227 Cr.P.C. The question that fall, for consideration on this revisional application is whether the Court of Session can discharge an accused under section 227 Cr.P.C. by reconsidering the charge earlier framed against the accused under section 228 Cr.P.C. The learned Additional Sessions Judge, it appears, was of the view that section 362 Cr.P.C. only refers to a judgment or final order disposing of a case and is not applicable to other orders, such as, an order framing charge and consequently a charge already framed is always open to be reconsidered even on the basis of the self-same materials, do which the charge was trained earlier and in a fit case on such reconsideration the Court of Session can discharge the accused even before any evidence is, taken in the trial of the case. Section 362 Cr.P.C. runs thus :

(2.) The procedure regarding the trial in a Court of Session is contained in Chapter-XVIII of the Criminal Procedure Code consisting of section 225 to section 237. Section 226 provides for opening of case for the prosecution when the accused appears or is brought before the Court of Session in pursuance of commitment of the case. Section 227 provides that if upon consideration of the record of the case and the documents submitted therewith and after hearing the submission of the accused and the prosecution in this behalf, the Judge considers that there is no sufficient ground for proceeding against the accused to that case he shall discharge the accused and record his reason for so doing. Section 228 relates to framing of charge. The said section inter alia provides that it after such consideration and nearing as aforesaid, that is, such consideration and hearing as mentioned in section 227 the Judge is of opinion that there is ground for presuming that the accused has committed an offence, which is exclusively triable by the Court of Session, he shall frame a charge against the accused and the charge shall then be read and explained to the accused and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried. Section 229 provides that if the accused pleads guilty, the Judge shall record the plea and may, in his discretion, convict him thereon. Section 230 provides that if the accused refuses to plead, or does not plead, or claims to be tried or is not convicted under section 229, the Judge shall fix a date for the examination of witnesses or the production of any document or other thing. Section 231 provides inter alia that on the date so fixed as mentioned in section 230 the Judge shall proceed to take all such evidence as may be produced in support of the prosecution. There are other provisions in the following sections as to how the trial is to proceed thereafter unto conclusion resulting in requital or conviction of the accused. It is needless to mention, therefore, that when elaborate provisions have been made as to how a trial has to start, proceed and conclude, it is incumbent that the Court must follow The procedure, prescribed by the law and must not deviate from the prescribed procedure by inventing or introducing a new procedure not provided by law.

(3.) From the provisions mentioned above it will appear that the law provides that on considering the relevant materials if the Court considers that there is no sufficient ground for proceeding against the accused then the accused has to be discharged, but if the Court is of opinion on such consideration that there is ground for presuming that the accused has committed an offence which is exclusively triable by the Court of Session then charge has to be framed against the accused. It is needless to mention that the question whether charge should be framed against the accused or he should be discharged has to be considered simultaneously and if on such consideration the Court thinks that the accused should not be discharged and rather charge should be framed against him, in that case the charge has to be framed against the accused. It is evident from the scheme of the provisions of the Chapter-XVIII of the Criminal Procedure Code as well as from the logic of the sequence that once the Court decides to frame charge under section 228 Cr.P.C. there is no question of discharging him at a later stage by exercising the power under section 227 Cr.P.C. Once charge has been framed under section 228 the trial has to proceed according to the procedure provided in the sections following the section 228 Cr.P.C. and the process cannot be put to back-gear for discharging the accused thereafter under section 227 Cr.P.C. where a charge has been framed by the Court of Session under section 228, the said Court thereafter cannot discharge the accused under section 227 Cr.P.C. Even if an accused against whom a charge has been framed under section 228 Cr.P.C. feels aggrieved by the framing of charge he has either to face the trial or he may approach the High Court in its revisional jurisdiction. If the Court of Session remains free to discharge an accused on reconsideration under section 227 even after a charge has been framed under section 228, in that case it would be open to the accused persons against whom charge has already been framed to move the same Court one after another for reconsideration and discharge on repeated occasions thereby making it practically impossible to proceed with the trial of the case expeditiously or at all, even if such moves lack merit.