Supreme Court of India
State Of Bihar vs Ramesh Singh on 2 August, 1977
Equivalent citations: 1977 AIR 2018, 1978 SCR (1) 257
Author: N Untwalia
Bench: Untwalia, N.L.
           PETITIONER:
STATE OF BIHAR

	Vs.

RESPONDENT:
RAMESH SINGH

DATE OF JUDGMENT02/08/1977

BENCH:
UNTWALIA, N.L.
BENCH:
UNTWALIA, N.L.
SHINGAL, P.N.

CITATION:
 1977 AIR 2018		  1978 SCR  (1) 257
 1977 SCC  (4)	39
 CITATOR INFO :
 R	    1979 SC 366	 (8)
 F	    1980 SC  52	 (18)
 F	    1980 SC1780	 (4)
 RF	    1986 SC2045	 (45)
 RF	    1990 SC 121	 (9)
 RF	    1990 SC1962	 (6)


ACT:
Criminal Procedure Code 1973-Sections 226, 227 and 228.
Tests  for discharging an accused-Presumption of  innocence-
Difference   between  case  for	 conviction  or	  case	 for
proceeding further.



HEADNOTE:
At  3.00 A.M. on the 26th of November 1973 Smt.	 Tara  Devi,
wife  of  respondent, a professor of  Economics,  in  Munshi
Singh College, Motihari in State of Bihar, was found burning
in  the,  Kitchen of their house.  She died as a  result  of
excessive burn injuries on her person.	The brother of	Tara
Devi  rushed to the spot and found that respondent  and	 his
brother were standing near the burning body of Tara Devi but
were not taking any steps to extinguish the fire.  He lodged
the  F.I.R.  at Police Station charging the  respondent	 for
having committed the offences under s. 302 and 201 of  Penal
Code.  Charge sheet was submitted against him by the  police
and  the case was committed to Sessions Court for  trial  of
the respondent u/s. 209 of Cr.	P.C. 1973.
The  Sessions Judge discharged the accused under s.  227  of
Cr.   P.  Code	1973  on  the  ground  that  there  was	 not
sufficient  ground  for proceeding with	 the  trial  against
respondent and he was discharged in accordance with section
227.
The State of Bihar went in revision before Patna High Court,
which was dismissed by the High Court.
Allowing the appeal by special leave,
HELD  :	 (1) Under s. 226 of the Code the  prosecutor  while
opening the case has got to describe the charge against	 the
accused and State by what evidence he proposes to prove	 the
guilt  of  the accused.	 Thereafter, comes  it	the  initial
stage,	the duty of the Court to consider the record of	 the
case  and the documents submitted therewith.  The Judge	 has
then  to pass an order either u/s. 227 or u/s. 228 of  Code.
[259C, D]
If  the Judge considers that there is not sufficient  ground
for  proceeding against the accused, he shall discharge	 the
accused	 and record his reasons for so doing as enjoined  by
s. 227.	 If on the other hand, the Judge 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 s. 228.
Reading	 the two provisions together in juxta a position  at
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.
[259E-F]
The  standard  of test and judgment which is to	 be  finally
applied	 before recording a finding regarding the  guilt  or
otherwise  of accused, is not exactly to be applied  at	 the
stage  of  deciding the matter under s. 227 and 228  of	 the
Code. [259G]
Strong	suspicion against the accused, if it remains in	 the
region of suspicion, cannot' take the place of proof of	 his
guilt at the conclusion of trial.  But at the initial stage,
if  there  is a strong suspicion which leads  the  court  to
think that there is a ground for presuming that the  accused
has committed an offence then it is not open to the court to
say  that  there  is no	 sufficient  ground  for  proceeding
against the accused.  It is only for the purpose of deciding
258
prima facie whether the court should proceed with the  trial
or  no,,.   The evidence which the  Prosecutor	proposes  to
adduce	to  prove  the guilt of the accused  even  if  fully
accepted  before  it is challenged 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.  [259H,
260A-B]
If  the scales 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 other hand, it is so
at  the initial stage of making an order under s. 227 or  s.
228  then in such a situation ordinarily and  generally	 the
order  which will have to be made will be one under  s.	 228
and not under s. 227. [260C-D]
Nirmal Jeet Singh Hoon v. State of West Bengal (1973) 2	 SCR
66  has followed Chandra Deo Singh v. Prakash  Chandra	Bose
(1964)	3 SCR 639 wherein it was laid down that the test  is
whether there is a sufficient ground for proceeding and not,
whether there is a sufficient ground for conviction.
After  setting aside the orders of High Court  and  Sessions
Court, the Court directed that appropriate charge or charges
be  framed  against the respondent and trial to	 proceed  in
accordance with law. [261H]
The  Court observed that nothing stated in the	judgment  is
meant to prejudice in the least the case of either party  at
the trial. [259C]



JUDGMENT:

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 51 of 1977.

Appeal by Special Leave from the Judgment and Order dated 18-2-1976 of the Patna High Court in Crl. Rev. No. 699/75. U. P. Singh and S. N. Jha, for the, Appellant. B. P. Singh and A. K. Srivastava, for the Respondent. The following Judgment of the Court was delivered by UNTWALIA, J.-The respondent in this appeal by special leave is a Professor of Economics in Munshi Singh College, Motihari in the State of Bihar. At about 3.00 A.M. on the 26th of November, 1973, Smt. Tara Devi, wife of the respondent, was found burning in the kitchen of his house. A hulla was raised. Chandreshwar Prasad Singh, brother of Tara Devi, who is a Professor of Botany in the said College and lives nearby came to the scene of occurrence. It is said he found the respondent and his brother standing near the burning body of Tara Devi but not taking any steps to extinguish the fire. Tara Devi died apparently as a result of the extensive burn injuries on her person. A First Information Report was lodged by Chandreshwar Prasad Singh at the Police Station charging the respondent for having committed the offences under sections 302 and 201 of the Penal Code. Eventually Charge-Sheet was submitted against him by the police and the case was committed to the Court of Sessions for trail of the respondent under section 209 of the Code of Criminal Procedure, 1973-hereinafter called the Code.

When the case was opened in the Court of the IIIrd Additional Sessions Judge at Motihari in Sessions Trial No. 66/1975 by the Additional Public Prosecutor in accordance with section 226 of the Code, a plea was raised on behalf of the respondent that there was not any sufficient ground for proceeding with the trial against him and he should be discharged in accordance with section 227. The Additional Sessions Judge accepted the plea and discharged the accused by his order dated April 30, 1975. The State of Bihar the appellant in this appeal went in revision before the Patna High Court to assail the order aforesaid of the Sessions Court. The High Court by its order dated the 18th February, 1976 dismissed the revision. Hence this appeal. It is neither necessary nor advisable for us to mention in any great detail the facts of the prosecution case against the respondent or refer to all the materials and the evidence which may be produced by the prosecutor when a trial proceeds in the Sessions Court. Unnecessary details in that regard have got to be avoided so that it may not prejudice either the prosecution case of the appellant or the defence of the respondent. Since for the brief reasons to be stated hereinafter we are going to set aside the orders of the Courts below and direct the trial to proceed against the respondent, we would like to caution that nothing which may have to be said in support of our order in this judgment is meant and should be understood to prejudice in the least the case of either party at the trial. 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 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 under section 227 or section 228 of the Code. If “the Judge consider that there is not. sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing”, as enjoined bysection 227. If, on the other hand, “the Judge 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 juxta position, 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. 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 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 accused or whether the trial is sure to end in his conviction. Strong suspicion against the accused, if the 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 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 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 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 conclusion or the other is neither possible nor advisable. We may just illustrate the difference of the law by one more example. If the scales 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 other hand, it is so at the initial stage of making an order under section 227 orsection 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 227In Nirmaljit Singh Hoon v. The State of West Bengal and an- other(1)-Shelat, J. delivering the judgment on behalf of the majority for the Court referred at page 79 of the report to the earlier decisions of this Court in Chandra Deo Singh v. Prakash Chandra Bose(2) where this Court was held to have laid down with reference to the similar provisions contained in sections 202 and 203 of the Code of Criminal Procedure, 1898 “that the test was whether there was sufficient ground for proceeding and not whether there was sufficient ground for conviction, and observed that where there was prima facie evidence, even though the person charged of an offence in the complaint might have a defence, the matter had to be left to be decided by the appropriate forum at the appropriate stage and issue of a process could not be refused.” Illustratively, Shelat J, further added “Unless, therefore, the Magistrate finds that the evidence led before him is self-contradictory, or intrinsically untrustworthy, process cannot be refused if that evidence makes out a prima facie case.”

The fact that Tara Devi died an unnatural death and there were burn injuries on her person does not seem to be in doubt or dispute. The question to be decided at the trial would be whether the respondent, as is the prosecution case, had murdered her and set fire to her body or whether she committed suicide by herself setting fire to , it This undoubtedly is a serious matter for decision at the trial. But at the stage of framing the charge, copious reference to Modi’s Medical Jurisprudence and judging the postmortem report of the Doctor who performed the autopsy over the dead body of the lady meticulously was not quite justified as has been done by the Trial Judge (1) [1973] 2 S.C.R. 66.

2. [1964] 3 S.C.R. 629.

According to the persecution case the respondent was in love with one of his girl students, named, Nupur Ghosh and this led to the serious differences between the respondent and his wife, the unfortunate Tara Devi, inducing the former to clear the path of his misadventure in the manner alleged by the prosecution. On the other hand, the defence seems to suggest that the ‘alleged love-affair of the respondent led Tara Devi to commit suicide. Whether the respondent will be able to prove his defence at the final stage of the trial may not be of much consequence. Surely the prosecution will have to prove its case beyond any reasonable doubt. Although at the time of the alleged occurrence were present in the house of the respondent his brother, his brother’s wife, and children the prosecution does not seem to be in possession of any oscular testimony of an eye witness of the occurrence. The case will largely, rather, wholly, depend upon the circumstantial evidence. A stricter proof will have to be applied for judging the guilt of the accused with reference to the various circumstantial evidence against him. The at this stage the Additional Sessions Judge was not right when he said-“it appears that there is neither direct evidence nor any circumstantial evidence to connect the accused with the alleged murder of Tara Devi”.’ He also ought not to have referred to the varying opinions of the Circle Inspector and the Superintendent of Police, Motihari as to the submission of Charge-Sheet against the respondent. Apart from some other circumstances, as it appears, the prosecution proposes to prove in this case, and whether it will succeed in proving them or not is a different matter, the High Court has enumerated three circumstances in its impugned order. We may just add, and that is only for the purpose of a cursory observation for deciding the matter at this stage, that the story of assault on Tara Devi by the respondent a day prior to the occurrence is perhaps sought to be proved by the evidence of Chandreshwar Singh, the informant, and it seems, he would also try to say, rightly or wrongly, that at the time of the said assault the respondent had given her a threat to kill her. The High Court felt persuaded to take the view that the three circumstantial facts, even if proved, would not be incompatible with the innocence of the accused and then added “There may be strong suspicion against the opposite party, but the three circumstances which I have just mentioned above, cannot be said to be incompatible with the defence of the accused.” The said observation of the High Court is not quite apposite in the background of the law which we have enunciated above with reference to the provisions of sections 227 and 228 of the Code. For the reasons stated above, we set aside the impugned orders of the High Court and the Sessions Court and direct that appropriate charge or charges will be framed against the respondent and the trial shall proceed further in accordance with the law.

P. H. P.	    Appeal allowed.



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