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Madan Mohan Jagga Vs. the State and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtHimachal Pradesh High Court
Decided On
Judge
Reported in1984CriLJ681
AppellantMadan Mohan Jagga
RespondentThe State and ors.
Excerpt:
- .....prosecution evidence and recording the statement of the accused under section 313. cr. p. c. the learned trial court heard the parties under section 232. cr. p. c. and thereafter passed an order on 6-8-1983 observing that in its opinion the accused could not be acquitted at that stage and calling upon them to enter upon their defence and to file the list of defence witnesses within three days and to produce the same or summon them for 18-8-1983.2. the petitioner has approached this court with the prayer that the aforesaid order dated 6-8-1983 passed by the learned trial court be quashed by this court in exercise of its jurisdiction vested in it under sections 397. 401 and 482 of the code of criminal procedure read with article 227 of the constitution and that the petitioner be.....
Judgment:
ORDER

T.R. Handa, J.

1. The petitioner along with two others is farina trial for the offences under Sections 452, 458. 459. 394. 397 and 323. I.P.C. in the Court of the Additional Sessions Judge. Mandi. After the close of the prosecution evidence and recording the statement of the accused under Section 313. Cr. P. C. the learned trial Court heard the parties under Section 232. Cr. P. C. and thereafter passed an order on 6-8-1983 observing that in its opinion the accused could not be acquitted at that stage and calling upon them to enter upon their defence and to file the list of defence witnesses within three days and to produce the same or summon them for 18-8-1983.

2. The petitioner has approached this Court with the prayer that the aforesaid order dated 6-8-1983 passed by the learned trial Court be quashed by this Court in exercise of its jurisdiction vested in it under Sections 397. 401 and 482 of the Code of Criminal Procedure read with Article 227 of the Constitution and that the petitioner be acquitted of the offences for which he is being tried.

3. According to the learned Counsel appearing for the petitioner it was a case of 'no evidence' and the learned trial Court was therefore duty bound to acquit the petitioner. According to the learned Counsel it will cause unnecessary harassment to the petitioner if he is called upon to enter defence and the very object of Section 232. Cr. P. C. which is to avoid such unnecessary harassment to the accused would be frustrated. In the alternative the prayer made in the petition is that inasmuch as the learned trial Court has already expressed its mind against the petitioner, the case be transferred from that Court to some other Court of competent jurisdiction.

4. I have heard the learned Counsel for the petitioner at length and have also perused the impugned order. It may be observed at the very outset that in case the learned trial Court was of the view that it was not a case of 'no evidence' within the meaning of Section 232. Cr. P. C. it was not necessary on its part to have recorded such a lengthy and reasoned order. At the same time, however simply because the trial Court proceeded to record an unnecessarily lengthy order the same cannot be said to suffer from any illegality so as to call for interference by this Court.

232. If after taking the evidence for the prosecution. examining the accused and hearing the prosecution and the defence on the point. the Judge considers that there is no evidence that the accused committed the offence. the Judge shall record an order of acquittal.

This section obviously comes into play only after the prosecution has closed its evidence and the examination of the accused under Section 313. Cr. P. C. is over. At this stage it enjoins upon the Court to take an overall assessment of the record after hearing the prosecution and 'the defence with a view to forming its opinion on the point whether there is no evidence on the record which could suggest that the accused had committed the offence. Once the Court forms such an opinion it must terminate the trial there and then and record an order of acquittal in favour of the accused without calling upon him to enter his defence. This section is under the caption 'Acquittal' and is to be invoked only where the accused deserves acquittal for want of any inculpatory evidence. Such an order being the final order with respect to the merits of the trial has to be a reasoned one like any other judgment of acquittal or conviction recorded at the conclusion of a criminal trial. In case however the Court is of the opinion that it cannot be said to be a case of no evidence within the meaning of Section 232. Cr. P. C. it must proceed under the subsequent section namely. Section 233 which reads:

233. (1) Where the accused is not acquitted under Section 232 he shall be called upon to enter on his defence and adduce any evidence he may have in support thereof.

(2) If the accused puts in any written statement the Judge shall file it with the record.

(3) If the accused applies for the issue of any process for compelling the attendance of any witness or the production of any document or thing the Judge shall issue such process unless he considers for reasons to be recorded that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice.

In such a case no formal or reasoned order need to be passed under Section 232, Cr. P. C. inasmuch as the only order within the contemplation of that provision is one of acquittal to be recorded only when it is a case of no evidence.

6. Here it may be observed that the term 'no evidence' appearing in Section 232, Cr. P. C. neither means total absence of evidence nor does it mean absence of cogent. convincing. reliable and trustworthy evidence. All that it means is that there is no inculpatory evidence against the accused in the sense than even if the prosecution evidence adduced is accepted at its face value it would not amount to legal proof of the offence charged against the accused. In such a case the Court is not required to marshal the evidence with a view to find out if it would be safe to act upon it or not. Where the evidence calls for such an appreciation before coming to the conclusion whether the accused is guilty or not it would not be a case of no evidence within the meaning of Section 232, Cr. P. C. In such a case the Court must proceed with the trial in accordance with the provisions which follow Section 232. Cr. P. C.

7. In the instant case when the trial reached the stage of Section 232. Cr. P. C the learned trial Court did take an overall assessment of the prosecution evidence in the light of the statement made by the accused under Section 313. Cr. P. C. and after hearing the prosecution and the defence. Ultimately it formed the view that it was not a case of no evidence and hence called upon the accused to enter defence. As already observed I see no infirmity in this order except it has been made unnecessarily Ions.

8. With respect to the alternative prayer of the petitioner that the case be transferred to some other Court inasmuch as the learned trial Court has already expressed its mind against the petitioner I have only to say that the apprehension of the petitioner if any is more illusory than real. The learned trial Court has nowhere recorded any positive finding against the petitioner. All that it has observed is:

As I have discussed above to my mind this is not a case of no evidence or of where from the evidence on record it could be patently said that the accused cannot be charged for either of any of the offences and the prosecution had not proved its case at all. It is not to my mind a mere case of suspicion, but there is a cogent and reliable evidence against the accused which of course if stands rebutted or due explanation is given by the accused may entitle them for the benefit available to them under law.

Therefore. I do not think that the accused can be acquitted at this stage and I hereby direct the accused if they wish, to enter upon their defence and to file the list of defence witnesses within 3 days....

The learned trial Court was certainly aware of the fact that it was dealing with the provisions of Section 232. Cr. P. C. and was not recording a final order in the trial. All that the learned trial Court has observed is that it was not a case of acquittal at the stage of Section 232. Cr. P. C. and these observations should not justify the apprehension of the petitioner that he would not get justice from the hands of the learned trial Court or that the learned trial Court has expressed any prejudice against him.

9. With these observations I dismiss this revision petition.


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