TMI Blog2013 (10) TMI 1082X X X X Extracts X X X X X X X X Extracts X X X X ..... has been placed on the Apex court judgment in the case of Superintendent and Remembrancer of Legal Affairs v. Anil Kumar Bhunja [1979 (8) TMI 204 - SUPREME COURT] - Relying upon the above decision of Apex court it has been held that even on the basis of a strong suspicion founded on materials before it, the court can form a presumptive opinion regarding the existence of factual ingredients constituting the offence alleged and in that event be justified in framing the charges against the accused in respect of the commission of the offence alleged to have been committed by them. In exercise of its jurisdiction under section 228 and/or under section 482, the court cannot take into consideration external materials given by an accused for reaching the conclusion that no offence was disclosed or that there was possibility of his acquittal. The court has to consider the record and documents annexed therewith by the prosecution. - Crl.R.C.No.1599 of 2007 - - - Dated:- 21-1-2013 - RAJENDRAN B., J. For the Petitioner : Mr. V. V. Sairam and M/s. R. Anhamuthu For the Respondent : Mr. K. Ramasamy and Special Public Prosecutor (Taxes) ORDER B. Rajendran J.- This revisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity to file yet another discharge petition citing the very same reasons and only adding that the assessment order for the year 1984-85 is filed which is nothing but to drag on the matter. 5. In this connection, the learned Special Public Prosecutor (Taxes), would also vehemently point out referring to the various pages in the complaint, namely, paragraph 2.15 in page 5, paragraph 5.1 in page 9, paragraph 5.1 in page 10, paragraph 5.2 in page 10, paragraph 5.3 in page 12, paragraph 14.2 in page 24, paragraph 17.3 in page 28 and paragraph 19 in page 31 which says about A12 the present petitioner and that the petitioner is not only the wife of the first accused but she is also a party to the crime. The house was raided and many documents were seized. Therefore, at the time of framing of the charge what all required is only to have a prima facie evidence to record. There is a charge in this case, the offence has been clearly made out. 6. The learned Special Public Prosecutor (Taxes), would further contend that even by the decision of this court, which is reported in Hema Mohnot v. State by Chief Commissioner of Income-tax (Administration) [2006] 285 ITR 402 (Mad), this court has co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed participated in the crime by getting refund certificate of the income-tax under fictitious name. 10. It is suffice to state that this court in the revision filed by the very same parties which is reported in Hema Mohnot v. State by Chief Commissioner of Income-tax (Administration) [2006] 285 ITR 402 (Mad), has held as follows: "From the judgments of the hon'ble Supreme Court, cited above, it is clear that the question whether a charge should be framed or not when the court is considering under section 245(1) of the Code of Criminal Procedure, the court has to take into account whether any case has been made out against the accused which if unrebutted would warrant his conviction. The hon'ble Supreme Court has gone to the extent of saying that the trial court has to consider the question as to framing of charge on a general consideration of the materials placed before him by the investigating police officer. Even a very strong suspicion founded upon materials before the magistrate, which leads him to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged, may justify the framing of charge against the accused in respec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s are filed by the accused at different forums on the same grounds and the purpose could be only to protract the proceedings. This is a classic example as to how the criminal case could be protracted for several decades. In the judgment in Smt. Om Wati v. State, through Delhi Administration [2001] 4 SCC 333, at page 341, the hon'ble Supreme Court held as follows : 12. We would again remind the High Courts of their statutory obligation to not to interfere at the initial stage of framing the charges merely on hypothesis, imagination and far-fetched reasons which in law amount to interdicting the trial against the accused persons. Unscrupulous litigants should be discouraged from protracting the trial and preventing culmination of the criminal cases by having resort to uncalled for and unjustified litigation under the cloak of technicalities of law.' As far as this case is concerned, the petitioner's earlier petition was dismissed by this court as mentioned earlier and this court has become functus officio and is disentitled to entertain a fresh prayer for the same relief unless the former order of final disposal is set aside by a court of competent jurisdiction in a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ainst the accused persons .. 8. At the stage of passing the orders in terms of section 227 of the Code, the court has merely to peruse the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused. If upon consideration the court is satisfied that a prima facie case is made out against the accused, the Judge must proceed to frame charge in terms of section 228 of the Code. Only in a case where it is shown that the evidence which the prosecution proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged in the cross-examination or rebutted by defence evidence cannot show that the accused committed the crime, then and then alone the court can discharge the accused. The court is not required to enter into meticulous consideration of evidence and material placed before it at this stage 10. A three-judge Bench of this court in Superintendent and Remembrancer of Legal Affairs v. Anil Kumar Bhunja [1979] 4 SCC 274 reminded the courts that at the initial stage of framing of charges, the prosecution evidence does not commence. The court has, therefore, to consider the question of fram ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uments submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the court may interfere. 27.3. The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge. 27.4 Where the exercise of such power is absolutely essential to prevent patent miscarriage of justice and for correcting some grave error that might be committed by the subordinate courts even in such cases, the High Court should be loath to interfere, at the threshold, to throttle the prosecution in exercise of its inherent powers. 27.5. Where there is an express legal bar enacted in any of the provisions of the Code or any specific law in force to the very initiation or institution and continuance of such criminal proceedings, such a bar is intended to provide specific protection to an accused. 27.6. The court has a duty to balance the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egal defects, the court may be well within its jurisdiction to frame a charge. 27.15. Coupled with any or all of the above, where the court finds that it would amount to abuse of process of the Code or that the interest of justice favours, otherwise it may quash the charge. The power is to be exercised ex debito justitiae, i.e., to do real and substantial justice for administration of which alone, the courts exist. 27.16. These are the principles which individually and preferably cumulatively (one or more) be taken into consideration as precepts to exercise of extraordinary and wide plenitude and jurisdiction under section 482 of the Code by the High Court. Where the factual foundation for an offence has been laid down, the courts should be reluctant and should not hasten to quash the proceedings even on the premise that one or two ingredients have not been stated or do not appear to be satisfied if there is substantial compliance with the requirements of the offence." 17. In paragraph 27.12. of the decision cited supra, the contention of the revision petitioner that she has filed the assessment order and it has not been taken into consideration by the lower ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
