Holding

The sanction order signed by the Secretary on behalf of the Governor is invalid, and the appeals are dismissed.

Summary

The appeals concerned the validity of a sanction to prosecute Lalu Prasad Yadav under Sections 13(1)(e) and 13(2) of the Prevention of Corruption Act, 1988. The sanction had been issued under Section 19(1)(b) of the Act and Section 197 of the Code of Criminal Procedure, but was signed by the Secretary to the Government on the Governor’s instructions. The appellants argued that sanction was still required even though the public servant no longer held the same office, that the Governor’s sanction should be deemed valid, and that the courts erred in not recording reasons for framing charges. The Supreme Court held that the Governor’s sanction lacked legal sanctity because the Secretary did not have authority to sign it, that a speaking order is required when rejecting a plea of lack of sanction, and that the plea of causus omissus was untenable. It also clarified the distinction between Section 197 CrPC and Section 19 PC Act and affirmed that reasons must be recorded when jurisdiction is in issue. The appeals were dismissed.

Issues considered

Whether a sanction under Section 19 of the Prevention of Corruption Act is required when the public servant does not hold the same office at the time of cognizance.
Whether the Governor’s sanction, signed by the Secretary, is legally valid.
Whether the order rejecting a plea of lack of sanction must be a speaking order.
Whether the plea of causus omissus based on Law Commission and Bakshi‑Tekchand reports is maintainable.
Whether reasons must be recorded when jurisdiction is raised in framing charge or discharge.
Distinction between the scope of Section 197 of the CrPC and Section 19 of the Prevention of Corruption Act.

Legislation cited

Code of Criminal Procedure, 1973s. 197
Indian Penal Code, 1860s. 107, s. 109
Prevention of Corruption Act, 1947s. 6(1), s. 6(2)
Prevention of Corruption Act, 1988s. 13(1)(e), s. 13(2), s. 19(1)(b)

Subjects

sanctionPrevention of Corruption ActSection 19Section 197causus omissusjurisdictionspeaking orderpublic servantGovernor sanctioncriminal procedurecharge framingdischarge

Judgment

LALU PRASAD@ LALU PRASAD YADAV A
v.
STATE OF BIHAR THROUGH CBI (AHD) PATNA

DECEMBER 6, 2006

[DR. ARIJIT PASAVAT AND S.H. KAPADIA, JJ.] B

Prevention of Corruption Act, 1988; s.13(J)(e) rlw s.13(2) and
s.19(l)(b)/Code of Criminal Procedure, 1973; ss. 197, 227, 228, 239, 240
and 245:
c
Prosecution ofpublic servant-When not ho/ding the same office which
he allegedly abused-Sanction to prosecute-Requirements of-Held: Order
rejecting plea of lack of sanction and jurisdiction required to be passed by
a speaking order-Sanction of Governor had no sanctity in the eye of law-
Sanction so granted earlier has no validity-It cannot be construed as a case D
ofcausus omissus-Cases in which question raised as to recording ofreasons
at the time offraming of charge differs from cases of opinion on the basis of
which accused discharged-In case ofquestion relating to jurisdiction, reasons
dealing with jurisdiction required to be recorded-In the facts and
circumstances of the case, appeals are without merit-Hence dismissed
E
Interpretation of Statutes:

Principles of construction:--8tatute-Casus omissus-Discussed

Corruption case-Prosecution-Requirement of sanction before
prosecution-Applicability of s.197 Cr.P. C./s. 19 of Prevention of Corruption F
Ai:t-Distinction between-Discussed

In these appeals the basic question raised for determination by this
Court related to the validity of sanction to prosecute the accused-appellants
for offence punishable under Section 13(l)(e) read with Section 13(2) of the
Prevention of Corruption Act, 1988. Sanction has been accorded both under G
the provisions of Section 19(1 )(b) of the Act and Section 197 of the Code of
Criminal Procedure, 1973.

Appellants contended that even though a public servant does not hold

251 H
252 SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R.

A the same office and holds some other office, then also sanction is necessary;
that the effect of the recommendations made by the Law Commission in its
4lst report which necessitated sanction in terms of Section 197 of the Code
extending the protection of sanction for a retired public servant as well should
have been also extended under Section 6(1) of the Prevention of Corruption
B Act, 1947 corresponding to Section 19(1) of the Act; that the courts below
had erroneously come to the conclusion that both in the case of discharge
and for framing of charge no reasons are necessarily to be recorded; and
that report of Dr. Bakshi Tekchand Committee which formed the basis of
inserting Sub-section (2) of Section 6of1947 Act admits of no doubt and the
same envisages two offices being held by the public servants one at the time
C of alleged offence and other at the time of taking cognizance.

Dismissing the appeals, the Court

HELD: 1.1. The decision in R.S. Nayak case cannot be regarded as a
binding precedent in respect of the issues which did not relate to the three
D questions which were required to be decided in that case. The order rejecting
the plea of lack of sanction and the jurisdiction is required to be passed by a
speaking order. The Secretary to the Government had no jurisdiction to sign
the sanction order on the instructions of the Governor.. Therefore, the so-
called sanction of the Governor has no sanctity in the eye of law. There is no
material to show that the alleged dis-proportionate assets were relatable to a
E period when wife of the appellant was the Chief Minister. At that time she
was also either holding the office of MLC or MLA and, therefore, the sanction
granted has no validity. [255-C, D, E]

R.S. Nayak v. A.R. Antulay, [1984) 2 SCC 183, held not applicable.
F 1.2.The sanctio!'. had been given by the Governor. The prosecution did
not obtain the sanction separately so far as wife of the appellant is concerned
as she was only a house wife and not a public servant during the relevant
period. In the sanction accorded in respect of the appellant, it has been
expressly mentioned that the acts of his wife amounted to aiding and abetting
G of commission of offence under Section 13(1)(e) by her husband and she was
thus liable to be prosecuted for offence punishable under Sections 107 and
109 of the Indian Penal Code, 1860. [255-E, F) ...I
2.1. Two principles of construction - one relating to causus omissus
and the other in regard to reading the statute as a whole - appear to be well
H settled. Under the first principle a causus omissus cannot be supplied by the
LALUPRASAD@LALU PRASAD YADAVv. STATE OF BIHAR THROUGHCBI(AHD) PATNA 253

Court except in the case of clear necessity and when reason for it is found in A
the four corners of the statute itself but at the same time a causus omissus
should not be readily inferred and for that purpose all the parts of a statute
or section must be construed together and every clause of a section should be
construed with reference to the context and other clauses thereof so that the
construction to be put on a particular provision makes a consistent enactment B
of the whole statute. This would be more so if literal construction of a
particular clause leads to manifestly absurd or anomalous results which could
not have been intended by the Legislature. [256-C, DJ

Maulavi Hussein Haji Abraham Umarji v. State of Gujarat and Anr., JT
(2004) 6 SC 227, referred to. C
Artemiou v. Procopiou, (1966) 1QB878; Luke v. /RC (1963) AC 557;
Fenton v. Hampton, (1858) XI, P.C. 347 and Jones v. Smart (1T.R52), referred
to.

2.2. Golden rule for construing all written instruments is that the D
grammatical and ordinary sense of the words is to be adhered to unless that
would lead to some absurdity or some repugnance or inconsistency with the
rest of the instrument, in which case the grammatical and ordinary sense of
the words may be modified, so as to avoid that absurdity and inconsistency,
but no further. (257-CI
E
Grey v. Pearson, (1857) 6 H.L. Cas. 61 and Abley v. Dale 11, C.B. 378,
referred to.

3. Plea that the effect of Law Commission's report and Dr. Baks)li ,
Tekchand report has not been considered by the Legislature and therefore'
this is a case of "causus omissus" is clearly without any substance. [257-E) F

Kalicharan Mahapatra v. State of Orissa, [1998) 6 SCC 411, referred
to.

4. Section 197 of the Code of Criminal Procedure and Section 19 of the
Prevention of Corruption Act operate in conceptually different fields. In cases G
covered under the Act, in respect of public servants the sanction is of
automatic nature and thus factual aspects are of little or no consequence.
Conversely, in a case relatable to Section 197 of the Code, the substratum
l\nd bM\~ features of the case have to be considered to find out whether the
alleged act has any nexus to the discharge of duties. Position is not so in H
254 SUPREME COURT REPORTS (2006] SUPP. 10 S.C.R.

A case of Section 19 of the Act. (258-B, CJ
Shivendra Kumarv. State ofMaharashtra, (2001) 9 SCC 303, referred
to.

5.1. The question raised relating to recording of reasons at the time of
B framing of charge is different from a case of opinion on the basis of which an
order of discharge of the accused is passed. (260-DJ

State ofBihar v. Ramesh Singh AIR (1977) SC 2018 and Kanti Bhadra
Shah and Anr. v. State of West Bengal, (2000) 1 SCC 722, referred to.

C 5.2. Where the question of jurisdiction is raised and the trial Court is
required to adjudicate that issue, it cannot be said that reasons are not to be
recorded. In such a case reasons relate to question of jurisdiction and not
necessarily to the issue relating to framing of charge. In such a case reasons
dealing with a p'ea relating to jurisdiction have to be recorded. (263-D)

D CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 1276 of
2006. .

From the Final Judgment and Order da~ed 21-6-2005 of the High Court
of Judicature at Patna in.Criminal Misc. No. 14894 of2000.

E P.P. Rao, P.H. Parekh, E.R. Kumar and Shakun Sharma (for Ms. P.H.
Parekh & Co.) for the Appellant.

Mohan Parasaran, A.S.G., Amarjit Singh, A.S.G., P. Parmeswaran,
Chidananda D.L., K.~. Senthilvelan, Gaurav Dhingra, Gopal Singh and
F Nishakant Pandey for the Respondent.

The Judgment of the Court was delivered by

DR. ARIJIT PASAYAT, J. Leave granted.

In both .these appeals the basic question raised relates to the validity
G of sanction to prosecute the appellants for offence punishable under Section
13(I)(e) read with Section 13(2) of the Prevention of Corruption Act, 1988 (in
short the 'Act'). Sanction has been accorded both under the provisions of
Section 19(l)(b) of the Act and Section 197 of the Code of Criminal Procedure,
1973 (in short the 'Code').

H
LALU PRASAO@LALUPRASAOYADAV v. STATEOFBIHAR THROUGH CBI (AHO) PATNA[PASAYAT, J.) 255

Plea relating to cognizance of the offence is that previous sanction is A
necessary under the Act if the public servant does not hold the same office
which he allegedly abused on the date when the cognizance was taken by the
Court. Stand of the appellants is that even though a public servant does not
hold the same office and holds some other office, then also sanction is
necessary. It is stated in that context that the decision in R.S. Nayak v. A.R. B
Antulay, [1984] 2 SCC 183 is per incuriam because the effect of Section 19(2)
of the Act had not been considered. It is also submitted that the effect of the
(
recommendations made by the Law Commission in its 41 st report which
necessitated sanction in terms of Section 197 of the Code extending the
protection of sanction for a retired public servant as well should have been
also extended under Section 6(1) of the Prevention of Corruption Act, 1947 C
(in short the '1947 Act') corresponding to Section 19(1) of the Act. This
according to us is a case of causus omissus. The decision in R. S. Nayak 's
case (supra) cannot be regarded as a binding precedent in respect of the
issues which did not relate to the three questions which were required to be
decided in that case. The order rejecting the plea of lack of sanction and the
jurisdiction is required to be passed by a speaking order. The Secretary to the D
Government had no jurisdiction to sign the sanction order on the instructions
of the Governor. Therefore, the so-called sanction of the Governor has no
sanctity in the eye of law. There is no material to show that the alleged dis-
proportionate assets were relatable to a period when Smt. Rabri Devi was the
Chief Minister. At that time she was also either holding the office of MLC or E
MLA and, therefore, the sanction granted has no validity.

It is to be noted that in Lalu Prasad Yadav 's case the sanction had been
given by the Governor. The prosecution did not obtain the sanction separately
so far as the appellant Rabri Devi is concerned as she was only a hou·se wife
and not a public servant during the relevant period. In the sanction accorded F
in respect of the appellant- Lalu Prasad Yadav, it has been expressly mentioned
that the acts of Smt. Rabri Devi amounted to aiding and abetting of commission
of offence under Section 13( I)(e) by her husband Lalu Prasad Yadav and she
was thus liable to be prosecuted for offence punishable under Sections I 07
and 109 of the Indian Penal Code, 1860 (in short the 'lPC').
G
One of the submissions made by Shri P.P. Rao, learned senior counsel
appearing for the appellants is that the courts below had erroneously come
to the conclusion that both in the case of discharge and for framing of charge
no reasons are necessarily to be recorded. It is submitted that report of Dr.
Bakshi Tekchand Committee which formed the basis of inserting Sub-section H
256 SUPREME COURT REPORTS [2006) SUPP. 10 S.C.R.

A (2) of Section 6 of 1947 Act admits of no doubt and the same envisages two
offices being held by the public servants one at the time of alleged offence
and other at the time of taking cognizance.

Learned counsel for the respondent-State submitted that none of the
pleas raised have any substance in law.
B
So far as the plea relating to causus omissus is concerned the position
in law is as follows:

Two principles of construction one relating to causus omissus and the
other in regard to reading the statute as a whole appear to be well settled.
C Under the first principle a causus omissus cannot be supplied by the Court
except in the case of clear necessity and when reason for it is found in the
four corners of the statute itself but at the same time a causus omissus should
not be readily inferred and for that purpose all the parts of a statute or section
must be construed together and every clause of a section should be construed
D with reference to the context and other clauses thereof so that the construction
to be put on a particular provision makes a consistent enactment of the whole
statute. This would be more so if literal construction of a. particular clause
leads to manifestly absurd or anomalous results which could not have been
intended by the Legislature. "An intention to produce an unreasonable result'',
said Danackwerts, L.J in Artemiou v. Procopiou, (1966) 1 QB 878, "is not to
E be imputed to a statute if there is some other construction available". Where
to apply words literally would "defeat the obvious intention of the legislature
and produce a wholly unreasonable result" we must "do some violence to the
words" and so achieve that obvious intention and produce a rational
construction. (Per Lord Reid in Luke v. /RC, (1963) AC 557 where at p. 577
F he also observed: "this is not a new problem, though our standard of drafting
is such that it rarely emerges".

It is then true that, "when the words of a law extend not to an
inconvenience rarely happening, but due to those which often happen, it is
good reason not to strain the words further than they reach, by saying it is
G causus omissus, and that the law intended quae frequentius accidl.lnt." "But,"
on the other hand, "it is no reason, when the words of a law do enough
extend to an inconvenience seldom happening, that they should not extend
to it as well as if it happened more frequently, because it happens but seldom"
(See Fenton v. Hampton, (1858) XI Moore, P.C. 347. A causus omissus ought
not to be created by interpretation, save in some case of strong necessity.
H Where, however, a causus omissus does really occur, either through the
LALUPRASAD@LALUPRASADYADAV v. STATEOFBlHAR THROUGH CB!(AHD) PATNA [PASAYAT,J.J 257

inadvertence of the legislature, or on the principle quad semel aut bis existit A
proetereunt legislators, the rule is that the particular case, thus left unprovided
for, must be disposed of according to the law as it existed before such statute
- Causus omissus et oblivioni datus dispositioni communis Juris relinquitur;
"a causus omissus," observed Buller, J. in Jones v. Smart, (1 T.R. 52), "can
in no case be supplied by a court of law, for that would be to make laws." B
The principles were examined in detail in Maulavi Hussein Haji Abraham
Umarji v. State of Gujarat and Anr., JT (2004) 6 SC 227.

The golden rule for construing all written instruments has been thus
stated: "The grammatical and ordinary sense of the words is to be adhered
to unless that would iead to some absurdity or some repugnance or C
inconsistency with the rest of the instrument, in which case the grammatical
and ordinary sense of the words may be modified, so as to avoid that
absurdity and inconsistency, but no further" (See Grey v. Pearson, (1857) 6
H.L. Cas. 61. The latter part of this "golden rule" must, however, be applied
with much caution. "if," remarked Jervis, C.J., "the precise words used are
plain and unambiguous in our judgment, we are bound to construe them in D
their ordinary sense, even though it lead, in our view of the case, to an
absurdity or manifest injustice. Words may be modified or varied where their
import is doubtful or obscure. But we assume the functions of legislators
when we depart from the ordinary meaning of the precise words used, merely ,..
because we see, or fancy we see, an absurdity or manifest injustice from an E
adherence to their literal meaning" (See Abley v. Dale I I, C.B. 378).

The plea thaf the effect of Law Commission's report and Dr. Bakshi
Tekchand report has not been considered by the Legislature and therefore
this is a case of "causus omissus" is clearly without any substance. This
Court had occasion to deal with a similar plea in Kalicharan Mahapatra v. F
State of Orissa, [1998] 6 SCC 41 l. It has been noted as follows:

"13. It must be remembered that in spite of bringing such a significant
change to Section 197 of the Code in 1973, Parliament was circumspect
enough not to change the wording in Section 19 of the Act which
deals with sanction. The reason is obvious. The sanction contemplated G
in Section 197 of the Code concerns a public servant who "is accused
of any offence alleged to have been committed by him while acting
or purporting to act in the discharge of his official duty", whereas the
offences contemplated in the PC Act are those which cannot be
treated as acts either directly or even purportedly done in the discharge H
258 SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R.

·A of his official duties. Parliament must have desired to maintain the
distinction and hence the wording in the corresponding provision in
the fonner PC Act was materially imported in the new PC Act, 1988
without any change in spite of the change made in Section 197 of the
Code."

B It may be noted that Section 197 of the Code and Section 19 of the Act
operate in conceptually different fields. In cases covered under the Act, in
respect of public servants the sanction is of automatic nature and thus factual
aspects are of little or no consequence. Conversely, in a case relatable to
Section 197 of the Code, the substratum and basic features of the case have
C to be considered to find out whether the alleged act has any nexus to the
discharge of duties. Position is not so in case of Section 19 of the Act.

The plea of causus omissus as raised by learned counsel is at variance
with the stand taken in respect of a similar plea in Parkash Singh Bada/'s
case. In that case the stand of learned counsel for the appeilant was that the
D provision does not exist and has to be read into the statute and since the
effect of Section 19(2) of the Act has not been considered in R.S. Nayak's
case (supra) therefore it is a case of per incuriam. We have examined the issue
in the said case and have turned out the plea.

In Shivendra Kumar v. State of Maharashtra, (2001] 9 SCC 303 it was
E inter alia observed as follows:

"11. On a perusal of Section 6 of the Act, it is clear that previous
sanction is mandatorily required for launching prosecution against a
public servant who is alleged to have committed an offence punishable
under Section 161 or 164 or 165 IPC or under sub-section (2) or sub-
F section (3-A) of Section 5 of the Act. Indeed the language of the
section is in the fonn of a prohibition against any court taking
cognizance of such offences except with previous sanction. The
authority/authorities to grant such sanction are specified in clauses
(a), (b) and (c) of sub-section (I). Under clause (a) it is laid down that
in the case of a person who is employed in connection with the affairs
G
of the Union and is not removable from his office save by or with
sanction of the Central Government, of the Central Government. Under
clause (b ), it is provided that in the case of a person who is employed
in connection with the affairs of a State and is not removable from his .-
office save by or with the sanction of the State Government, of the
H State Government; and under clause (c) in the case of any other
LALU PRASAD@ LALU PRASAD YADAV v. STATE OF BIHAR THROUGH CBI (AHO) PATNA [PASA VAT, J.J 25 9
person, of the authority competent to remove him from his office. The A
...-·.
difference in the language used in clauses (a) and (b) on the one hand
and clause (c) on the other, cannot be lost sight of. While in the
former, the Central Government or the State Government, as the case
may be, is to grant the sanction, under clause (c) it is specifically
provided that the authority competent to remove the delinquent public
servant from office is one who is competent to grant the sanction. As B
noted earlier, Section 6(l)(b) is applicable in the present case. The said
provision does not specify any particular officer as the competent
authority to grant sanction. It only states that the State Government,
I without whose sanction the delinquent officer cannot be removed
from office/post, is the competent authority to pass the order of c
sanction. From the sanction order, which is available on the record,
it is clear that the Secretary, Medical Education Department passed/
signed the order of sanction of prosecution against the appellant on
behalf of the Governor. It is not the case of the appellant that the
Secretary had no authority to act on behalf of the State Government.
It follows that the order of sanction in the present case was passed D
by the Secretary of the Medical Education Department with the
authority of the Governor of the State Government. No material on
record has been brought to our notice to show that the Governor had
issued any order authorising an officer other than the Secretary of the
Department to pass order of sanction in the case. If that was the case, E
then the appellant should have produced the order or at least raised
the contention that an officer other than the Secretary had been
authorised for that purpose. No such material appears to have been
produced. When the Secretary was being examined in support of the
sanction order passed by him such question was also put to him.
Reliance is placed on a sentence in his deposition that he is not the F
authority to remove the appellant. This statement, without further
material, cannot form the basis of the contention that the Secretary,
Medical Education Department was not competent to pass the order
of sanction on behalf of the State Government. The Government
functions through its officers. The Secretary is the Head of the
G
' Department and the principal officer representing the State Government
in the Department concerned. Unless specific material is produced to
show that some other officer was competent to deal with the matter
of sanction of prosecution against the appellant it can be reasonably
assumed that the Secretary of the Department is the competent
authority to pass the order of sanction. The object of Section 6 or for H
260 SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R. -.
A that matter Section 197 of the Criminal Procedure Code, which is r
I
a pari materia provision, is that there should be no unnecessary
harassment of a public servant; the idea is to save the public servant
from the harassment which may be caused to him if each and eve1y
aggrieved or disgruntled person is allowed to institute a criminal
complaint against him. The ·protection is not intended to be an
B absolute and unqualified immunity against criminal prosecution. In
a case where it is seen that a sanction order has been passed by an
authority who is competent under the law to represent the State
Government, the burden is heavy on the party who challenges the
authority of such order to show that the authority competent to pass
c the order of sanction is somebody else and not the officer who has
passed the sanction order in question.''

(underlined for emphasis)

That brings us to another question which though may not have any relevance
D after the rejection of the principal plea, has to be considered because such
issues frequently coine up for consideration.

The question raised relating to recording of reasons at the time of
framing of charge is different from a case of opinion on the basis of which
an order of discharge of the accused is passed. Sections 227 and 228 of the
E Code with regard to discharge of accused and framing of charges against the
accused respectively in a case triable by Court of Session; Sections 239 and
240 concern discharge and framing of charge in case of warrant, triable by
the Magistrate whereas Section 245 deals with discharge and framing of
charges in cases instit4ted other than on the police report, indicates the
F difference. The relevant provisions read as follows:

"227-Discharge: If 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 no sufficient ground for proceeding against the accused,
he shall discharge the accused and record his reasons for so doing."
G
"228.-Framing of Charge-( I) 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-

(a) is not exclusively triable by the Court of Session, he may, frame
H
LALU PRASAD@LALUPRASADYADAV v. STATE OF BIHAR THROUGH CBI (AHD) PATNA [PASAYAT, I] 26J

a charge against the accused and, by order, transfer the case for A
trial to the Chief Judicial Magistrate or any other Judicial
Magistrate of the first class and 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-cases B
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 under clause (b) of sub- C
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."

"239. When accused shall be discharged---(1) If, upon considering the
police report and the documents sent with it under Section 173 and D
making such examination, if any, of the accused as the Magistrate
thinks necessary and after giving the prosecution and the accused an
opportunity of being heard, the Magistrate considers the charge
against the accused to be groundless, he shall discharge the accused,
and record his reasons for so doing."
E
"240. Framing ofcharge.---(1) If, upon such consideration examination,
if any, and hearing, the Magistrate is of opinion that there is ground
for presuming that the accused has committed an offence triable under
this Chapter, which such Magistrate is competent to try and which,
in his opinion, could be adequately punished by him, he shall frame
in writing a charge against the accused. F

(2) The charge shall then be read and explained to the accused, and
he shall be asked whether he pleads guilty of the offence charged or
claims to be tried."

"245: When accused shall be discharged-( I) If upon taking all the G
evidence referred to in Section 244 the Magistrate considers, for
reasons to be recorded, that no case against the accused has been
made out which, if unrebutted, would warrant his conviction, the
Magistrate shall discharge him.

(2) Nothing in this section shall be deemed to prevent a Magistrate H
262 SUPREME COURT REPORTS [2006) SUPP. IO S.C.R.

A from discharging the accused at any previous stage of the case if, for
reasons to be recorded by such Magistrate, he considers the charge
to be groundless."

This Cc.urt in State of Bihar v. Ramesh Singh, AIR (1977) SC 2018 observed
as follows:
B
"Reading the two provisions together in juxtaposition, 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 effect 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 of the accused.
c It is not obligatory for tlie 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 und judgment, which is to be finally applied
before recording a finding regarding the guilt or otherwise of the
accused not exactly to be applied at the stage of deciding the matter
D
under Sections 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 accused or whether the trial is sure to end in his conviction."

E In Kanti Bhadra Shah and Anr. v. State of West Bengal, (2000] I SCC
722 again the question was examined. It was held that the moment the order
of discharge is passed it is imperative to record the reasons. But for framing
of charge the Court is required to form an opinion that there is ground for
presuming that the accused has committed the offence. In case of discharge
of the accused the use of the expression "reasons" has been inserted in
F Sections 227, 239 and 245 of the Code. At the stage of framing of a charge
the expression used is "opinion". The reason is obvious. If the reasons are
recorded in case of framing of charge, there is likelihood of prejudicing the
case of the accused put on trial. It was inter alia held as follows:

"It is pertinent to note that this section required a Magistrate to
G record his reasons for discharging the accused but there is no such
requirement ifhe forms the opinion that there is ground for presuming
that the accused had committed the offence which he is competent to
try. In such a situation he is only required to frame a charge in writing
against the accused.
H
LALUPRASAD@LALUPR.\SADYADAVv. STATEOFBIHAR THROUGH CBI (AHD)PATNA [PASAYAT,J.] 263

Even in cases instituted otherwise than on a police report the A
Magistrate is required to write an order showing the reasons only if
he is to discharge the accused. This is clear from Section 245. As per
the first sub-section of Section 245, if a Magistrate, after taking all the
evidence considers that no case against the accused has been made
out which if unrebutted would warrant his conviction, he shall
discharge the accused. As per sub-section (2) the Magistrate is B
empowered to discharge the accused at any previous stage of the
case if he considers the charge to be groundless. Under both sub-
sections he is obliged to record his reasons for doing so. In this
\context, it is pertinent to point out that even in a trial before a Court
of Session, the Judge is required to record reasons only if he decides C
to discharge the accused (vide Section 227 of the Code). But if he is
to frame the charge he may do so without recording his reasons for
showing why he framed the charge."

But where the question of jurisdiction is raised and the trial Court is
required to adjudicate that issue, it cannot be said that reasons are not to D
be recorded. In such a case reasons relate to question of jurisdiction and not
necessarily to the issue relating to framing of charge. In such a case reasons
dealing with a plea relating to jurisdiction have to be recorded.

In the ultimate, analysis in these appeals is that they are without merit
and are dismissed. E
S.K.S. Appeals dismissed.