ATAUR RASUL Vs. MTIAZ RASUL

JUDGEMENT

(1.) Aggrieved by the order, dated 07.10.1999, passed by the learned Special Judicial Magistrate, Guwahati, in CR Case No. 3169/98, framing charge under Section 468 IPC against the three accused persons, namely, Ataur Rasul and Md. Iftikar Rasul, accused Ataur Rasul has come before this Court, with the help of the present revision, to get set aside the order framing charge and the entire proceedings quashed.

(2.) From the impugned order, dated 07.10.1999, it transpires that the learned trial Court has framed the charge against the accused on the ground that the materials on record give rise to the presumption that the accused has committed an offence punishable under Section 468 IPC. The charge has not been framed under Section 468 read with Section 34 IPC.

(3.) Coupled with the above, It is imperative to note that an offence under Section 468 IPC is punishable by imprisonment of more than 2 years and has to be tried by adopting warrant procedure. The case at hand is a case, which was instituted otherwise than on police report. Charge in a trial of warrant case registered on the basis of the police report is framed under the provisions of Section 240 Cr.P.C., whereas the charge in a trial of warrant case, instituted otherwise than on police report, is framed under Section 245 Cr.P.C. The standards of materials required for the purpose of framing of the charge in the two cases are substantially different. If in a warrant procedure trial, based on police report, the materials collected by investigation give rise to a presumption that the accused has committed an offence, a charge in terms of Section 240 Cr.P.C. can be framed. However, on the basis of such a presumption, no charge can be framed in a trial of warrant case instituted otherwise than on police report. According to Section 245 Cr.P.C., a Magistrate can frame charge only when the evidence brought on record, if remains rebutted, would warrant conviction of the accused.