DINESH TIWARIversusSTATE OF UTTAR PRADESH & ANR.

                    [2014] 8 S.C.R. 207


                      DINESH TIWARI                               A
                              v.
           STATE OF UTTAR PRADESH & ANR.
            (Criminal Appeal No.1365 of 2014)
                       'JULY 07, 2014
                                                                  B
       [SUDHANSU JYOTI MUKHOPADHAYA AND
              V. GOPALA GOWDA, JJ.)

     Code of Criminal Procedure, 1973 - ss. 226, 227 and
228 - Sessions Court charged the accused for additional           C
offence - Which was not part of charge-sheet nor was taken
cognizance of by the Magistrate - The order challenged on
the ground that additional charge was framed without hearing
the accused - Held: at the stage of discharge u/s. 227, if the
judge is of.the opinion that there is ground for presuming that   o
the accused has committed an offence, he is competent to
frame charge for such offence even if not mentioned in the
charge-sheet ~ For framing charge uls. 228, the Judge is not
required to grant s~__arate hearing nor required to record
detailed reasons-10r framing of the charge.                       E
    Investigating agency filed charge-sheet against
appellant-accused ulss. 323, 504 and 506 IPC. CJM also
took cognizance of offences ulss. 323, 504 and 506 IPC.
After committal of the case, the Sessions Court framed
additional charge uls. 302 IPC in addition to other               F
charges. The appellant-accused filed petition u/s. 482
Cr.P.C. seeking quashing of the order of Sessions
Judge. High Court dismissed the petition. Hence the
present appeal.
                                                                  G
     Dismissing the appeal, the Court
    HELD: 1. As per Section 226 Cr.P.C., when the
accused person is brought before the Court in
pursuance of a commitment of the case u/s 209, the
                            207                                   H
    208     SUPREME COURT REPOBTS             [2014) 8 S.C.R.


A prosecutor is required to open his case by describing the
    charge brought against the accused and stating by what
    evidence he proposes to prove his guilt of the accused .
    Section 227 deals with Discharge as per which, upon
    consideration of the records of the case and the
B documents submitted before him and after hearing the
    submissions of the party accused and the prosecution,
    if the Judge is of the opinion that no sufficient ground is
    made out to proceed against the accused, he is required
  - to discharge the accused and record his reasons for
c doing so. From sub Section (1) of Section 228, it is clear
    that after such consideration and tiearing, as given under
    Section 227, if Judge forms an opinion that there js a
    ground for presuming that the accused has committed
    an offence, ~udge may frame the charge(s). From
    Section 228 it is clear that no separate hearing is required
0
    to be given for framing the charge, if the accused is not
    discharged, upon consideration of the record of the case
    and documents and after hearing the submissions under
    Section 227. [Paras 7, 8 and 9] [211-D, E, G, H; 212-F-H]
    •
E      2. In the. present case, it is not alleged that the
  Sessions Judge has not followed Sections 226 and 227
  Cr.P.C before framing the charge. Further, it is not the
  case of the appellant that the court has not given him
  hearing at the stage of discharge u/s 227 Cr.P.C. For
F framing of charge u/s 228, the judge is not required to
  record detailed reasons as to why such charge is framed.
  On perusal of record and hearing the parties at the stage
  of discharge u/s 227 Cr.P.C., if the Judge is of opinion
  that there is ground for presuming that the accused has
G committed an offence, he is competent to frame charge
  for such offence, even if not mentioned in the charge
  sheet. [Para 11] [215-G-H; 213-A-B]

       Amit Kapoor v. Ramesh Chander and another 2012 (7)
    SCR 988: (2012) 9 SCC 460 - referred to.
H
 DINESH TIWARI v. STATE OF UTTAR PRADESH &                 209
                     ANR.

                     Case Law· Reference:                          A
    2012 (7) SCR 988          Referred to             Para 10

    CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 1365 of 2014
                                                                   B
     From the Judgment and Order dated 11.12.2007 in
CRLMA No.26878/2007 of the High Court of Judicature at
Allahabad.

    P.N. Mishra, Kedar Nath Tripathy, Anshuj Dhingra,              C
Anubhav Mehrotra for the Appellant.

    Vibhu Tiwari, Sudeep Kumar (For Ravi Prakash Mehrotra),
Prashant Chaudhary for the Respondents.

    The Judgment of the Court was delivered by                     D
    SUDHANSU JYOTI MUKHOPADHAYA, J. : 1. Leave
granted.

    2. This appeal is directed against the judgment and order
dated 11th December, 2007 passed by the High Court of              E
Judicature at Allahabad in Criminal Miscellaneous Application
No.26878 of 2007. By the impugned judgment, the High Court
dismissed the application filed by the appellant-accused u/s 482
Cr.P.C for quashing the order dated 1st September, 2007
passed by the Additional Sessions Judge/F.T.C No.3, Basti in       F
Sessions Trial No.207/07 in State v. Ram Vijay Yadav etc. By
the said order, the Additional Sessions Judge framed the
charge against the appellant-accused for the offence u/s 302,
323, 504 and 506 IPC.

     3. The factual matrix of the case is as under:                G

    One Mahender Prasad Tiwari complainant lodged an FIR
against the present appellant-Dinesh Tiwari, Sadhu Saran and
Ram Vijay Yadav for the offence u/s 302, 323, 504 and 506
                                                                   H
    210       SUPREME COURT REPORTS              [2014] 8 S.C.R.


A   IPC in Police Station Mahuli, District Sant Kabir Nagar. It was
    registered as Crime No.84/2006. It was alleged that the
    appellant along with Sadhu Saran committed murder of Arvind
    Kumar Tiwari son of the complainant. Reasons for enmity and
    detail event of murder were mentioned in the FIR.
B
       Police started the investigation but subsequently, on the
  order of the Government the investigation was transferred to
  CBCID. CBCID submitted charge sheet against Sadhu Saran
  Yadav co-accused for the offence u/s 302, 323, 504 and 506
C IPC. It was mentioned in the charge sheet that investigation
  shall continue against rest of the accused persons. The CJM
  took cognizance of the offence vide order dated 8th May, 2006.
  The case was committed to the Court of Sessions and was
  registered as S.T. No. 149/2006 titled State v. Sadhu Saran
  Yadav. Thereafter, CBCID submitted the charge sheet against
D Ram Vijay Yadav for the offence u/s 302, 323, 504 and 506
  IPC and as against the appellant for the offence u/s 323, 504
  and 506 IPC. No charge sheet was submitted against the
  appellant for the offence u/s 302 IPC. The cognizance was
  taken by CJM on charge sheet no.SA of 2006 on 23rd January,
E 2007. Bail was granted to the appellant for the offence u/s 323,
  504 and 506 IPC. The case was committed to the Court of
  Sessions by the CJM after taking cognizance and the .Sessions
  Court framed charge against the appellant for the offence u/s
  302 IPC, apart from Section 323, 504 and 506 IPC.
F
        4. The aforesaid order was challenged by the appellant by
  filing criminal miscellaneous application u/s 482 Cr.P.C. for
  quashing the order framing the charge u/s 302 ·1PC. The High
  Court by impugned judgment and order dated 11th December,
G 2007 dismissed the same.

        5. Counsel for the appellant has made the following
    submissions:

          (a) Appellant-accused was not given an opportunity of
H         being heard before framing of the charge u/s 302 /PC.
 DINESH TIWARI v. STATE OF UTTAR PRADESH &                  211
  ANR. [SUDHANSU JYOTI MUKHOPADHAYA, J.]
    (b) Neither any charge sheet was submitted by the              A
    investigating agency against the appellant for the offence
    uls 302 /PC nor any cognizance was taken by the CJM
    against him for the said offence. But Sessions Judge
    after committal framed the charge u/s 302 /PC which was
    not permissible.          ·                                    B

     6. Per contra, according to learned counsel for the
respondents, there is ample material on record to show that the ·
appellant along with Sadhu Saran committed murder of Arvind
Kumar Tiwari son of the complainant and hence the Trial Court
rightly framed the charge u/s 302 IPC.                            C

    7. Chapter XVIII of Cr.P.C. deals with "Trial before a Court
of Session". As per Section 226, when the accused person is
brought before the Court in pursuance of a commitment of the
case u/s 209, the prosecutor is required to open his case by       o
describing the charge brought against the accused and stating
by what evidence he proposes to prove his guilt of the accused.

     8. Section 227 deals with Discharge and it reads as
follows:
                                                                   E
    "227. Discharge.-/(, upon consideration of the record of
    the case and the documents submitted therewith, and
    after hearing the submissions of the accused and the ·
    prosecution in this behalf, the Judge considers that there
    is not sufficient ground for proceeding against the F
    accused, he shall discharge the accused and record his
    reasons for so doing. "

  . As per the aforesaid provision, upon consideration of the
records of the case and the documents submitted before him         G
and after hearing the submissions of the party accused and the
prosecution if the Judge is of the opinion that no sufficient
ground is made out to proceed against the accused, he is
required to discharge the accused and record his reasons for
doing so.
                                                                   H
    212       SUPREME COURT REPORTS                [2014] 8 S.C.R.


A         9. Section 228 relates to framing of charge as follows:

          "228.Framing of charge.-(1), If, after such consideration
          and hearing as aforesaid, the Judge is of opinion that
          there is ground for presuming that the accused has
          committed an offence which-
B
          (a) is not exclusively triable by the Court of Session, he
          may, frame a charge against the accused and, by order,
          transfer the case for trial to the Chief Judicial Magistrate
          (or any other Judicial Magistrate of the first class and
c         direct the accused to appear before the Chief Judicial
          Magistrate, or, as the case may be, the Judicial
          Magistrate of the first class, on such date as he deems
          fit, and thereupon such Magistrate] shall try the offence
          in accordance with the procedure for the trial of warrant-
D         cases instituted on a police report;

          (b) is exclusively triable by the Court, he shall frame in
          writing a charge against the accused.

        (2) Where the Judge frames any charge unde'r clause (b)
E of sub-section (1 ), the charge shall 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."

         From sub Section (1) of Section 228, it is clear that after
F   such consideration and hearing, as given under Section 227,
    if Judge forms an opinion that there is a ground for presuming
    that the accused has committed an offence, Judge may frame
    the charge(s).

       From Section 228 it is clear that no separate hearing is
G required to be given for framing the charge if the accused is
  not discharged upon consideration of the record of the case
  and documents and after hearing the submissions under
  Section 227.

H         10. Relative scope of Sections 227 and 228 Cr.P.C. was
  DINESH TIWARI v. STATE OF UTTAR PRADESH &                     213
   ANR. [SUDHANSU JYOTI MUKHOPADHAYA, J.]
, noticed and considered by this Court in Amit Kapoor v.                A
. Ramesh Chander and another, (2012) 9 SCC 460. This Court
 held as follows:

       "17. Framing of a charge is an exercise of jurisdiction by
 the trial court in terms of Section 228 of the Code, unless the        8
 accused is discharged under Section 227 of the Code. Under
 both these provisions, the court is required to consider the
 "record of the case" and documents submitted therewith and,
 after hearing the parties, may either discharge the accused
 or where it appears to the court and in its opinion there is           C
 ground for presuming that the accused has committed an
 offence, it shall frame the charge. Once the facts and
 ingredients of the section exists, then the court would be right
 in presuming that there is ground to proceed against the
 accused and frame the charge accordingly. This presumption
 is not a presumption of law as such. The satisfaction of the           D
 court in relation to the existence of constituents of an offence
 and the facts leading to that offence is a sine qua non for
  exercise of such jurisdiction. It may even be weaker than a
 prima facie case. There is a fine distinction between the
  language of Sections 227 and 228 of the Code. Section 227             E
  is the expression of a definite opinion and judgment of the
  Court while Section 228 is tentative. Thus, to say that at the
  stage of framing of charge, the Court should form an opinion
  that the accused is certainly guilty of committing an offence,
  is an approach which is impermissible in terms of Section 228         F
  of the Code."

      "19. At the initial stage of framing of a charge, the court
      is concerned not with proof but with a strong suspicion
      that the accused has committed an offence, which, if put          G
      to trial, could prove him guilty. All that the court has to
      see is that the material on record and the facts would be
      compatible with the innocence of the accused or not. The
      final test of guilt is not to be applied at that stage. We may
      refer to the well-settle_d Jaw laid down by this Court in State
                                                                        H
    214       SUPREME COURT REPORTS                [2014] 8 S.C.R.


A         of Bihar v. Ramesh Singh: (SCC pp. 41-42, para 4)

          "4. Under Section 226 of the Code while opening the
          case for the prosecution the Prosecutor has got to
          describe the charge against the accused and state by
B         what evidence he proposes to prove the guilt of the
          accused. Thereafter comes at the initial stage the duty
          of the court to consider the record of the case and the
          documents submitted therewith and to hear the
          submissions of the accused and the prosecution in that
          behalf. The Judge has to pass thereafter an order either
c         under Section 227 or Section 228 of the Code. If 'the
          Judge considers that there is no sufficient ground for.
          proceeding against the accused, he shall discharge the
          accused and record his reasons for so doing', as
          enjoined by Section 227. If, on the other hand, 'the Judge
D         is of opinion that there is ground for presuming that the
          accused has committed an offence which- ... (b) is
          exclusively triable by the court, he shall frame in writing
          a charge against the accused', as provided in Section
          228. Reading the two provisions together in juxtaposition,
E         as they have got to be, it would be clear that at the
          beginning and the initial stage of the trial the truth,
          veracity and eff;!ct of the evidence which the Prosecutor
          proposes to adduce are not to be meticulously judged.
          Nor is any weight to be attached to the probable defence
F         of the accused. It is not obligatory for the Judge at that
          stage of the trial to consider in any detail and weigh in a
          sensitive balance whether the facts, if proved, would be
          incompatible with the innocence of the accused or not.
          The standard of test and judgment which is to be finally
G         applied before recording a finding regarding the guilt or
          otherwise of the accused is not exactly to be applied at
          the stage of deciding the matter under Section 227 or
          Section 228 of the Code. At that stage the court is not to
          see whether there is sufficient ground for conviction of the
H         accused or whether the trial is sure to end in his
 DINESH TIWARI v. STATE OF UTTAR PRADESH & 215
  ANR. [SUDHANSU JYOTI MUKHOPADHAYA, J.]
     conviction. Strong suspicion against the accused, if the A
     matter remains in the region of suspicion, cannot take the
     place of proof of his guilt at the conclusion of the trial.
     But at the initial stage if there is a strong suspicion which
     leads the court to think that there is ground for presuming
   · that the accused has committed an offence then it is not B
     open to the court to say that there is no sufficient ground
     for proceeding against the accused. The presumption of
      the guilt of the accused which is to be drawn at the initial
      stage is not in the sense of the law governing the trial of
      criminal cases in France where the accused is presumed          c
      to be guilty unless the contrary is proved. But it is only
      for the purpose of deciding prima facie whether the court
      should proceed with the trial or not. If the evidence which
      the Prosecutor proposes to adduce to prove the guilt of
      the accused even if fully accepted before it is challenged
                                                                   0
      in cross-examination or rebutted by the defence
      evidence, if any, cannot show that the accused
      committed the offence, then there will be no sufficient
    . ground for proceeding with the trial. An exhaustive list of
      the circumstances to indicate as to what will lead to one
                                                                   E
      conclusion or the other is neither possible nor advisable.
      We may just illustrate the difference of the law by one
      more example. If the sea/es of pan as to the guilt or
      innocence of the accused are something like even at the
      conclusion of the trial, then, on the theory of benefit of
      doubt the case is to end in his acquittal. But if, on the F
      other hand, it is so at the initial stage of making an order
      under Section 227 or Section 228, then in such a situation
      ordinarily and generally the order which will have to be
      made will be one under Section 228 and not under
       Section 227."                                               G

11. In this case, it is not alleged that the Sessions Judge has
not followed Sections 226 and 227 Cr.P.C before framing the
charge. Further, it is not the case of the appellant that the court
has not given him hearing at the sta,ge of discharge u/s 227          H
    216       SUPREME COURT REPORTS             [2014] 8 S.C.R.


A Cr.P.C. For framing of charge u/s 228, the judge is not required
  to record detail reasons as to why such charge is framed. On
  perusal of record and hearing the parties at the stage of
  discharge u/s 227 Cr.P.C. if the Judge is of opinion that there
  is ground for presuming that the accused has committed an
B offence, he is competent to frame charge for such offence even.
  if not mentioned in the charge sheet. We find no merit in this
  appeal. The appeal is accordingly dismissed.

    Kalpana K. Tripathy                           Appeal dismissed.