Md. Abdul Kader Vs. The State and another 2017 (1) LNJ 371

Case No: Criminal Revision No. 203 of 2006

Judge: Syed Md. Ziaul Karim. J.

Court: High Court Division,

Advocate: Mr. Jafar Alim Khan, Md. Shamsur Rahman,

Citation: 2017 (1) LNJ 371

Case Year: 2014

Appellant: Md. Abdul Kader

Respondent: The State and another

Subject: Criminal Law

Delivery Date: 2017-06-21

HIGH COURT DIVISION

(CRIMINAL REVISIONAL JURISDICTION)

Syed Md. Ziaul Karim, J

And

Ashish Ranjan Das, J

Judgment on

12.06.2014

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Md. Abdul Kader

. . Complainant-Petitioner

-Versus-

The State and another

...Opposite-parties

Code of Criminal Procedure (V of 1898)

Section 265(c)

A charge is an important step in a criminal proceeding. It separates the inquiry stage from trial. The whole object of framing a charge is to enable the defence to concentrate its attention on the case that he has to meet, and if charge is framed in such a vague manner that the necessary ingredients of the offence with which the accused is convicted are not brought out in the charge, then the charge is defective. The framing of a proper charge is vital to a criminal trial and this is a matter on which the Magistrate or Judge should bestow the most careful attention. A charge should be carefully drawn up in accordance with the offence disclosed. The charge should be precise in its scope and particular in its details. A charge is defined as a ‘precise formulation of the specific accusation made against a person who is entitled to know its nature at the very earliest stage. The necessity of a system of written accusation specifying a definite criminal offence is the essence of criminal procedure.      . . .(9)

Code of Criminal Procedure (V of 1898)

Section 265(c)

Penal Code (LXV of 1860)

Sections 406, 409 and 420

On going to the materials on record it transpires that the complainant categorically narrated the manner of crime committed by the accused. In judicial inquiry, all the witnesses categorically stated that the accused is solely responsible for misappropriation of the amount. Therefore, the learned Magistrate after assessing the judicial inquiry report, found prima facie case against the accused and took cognizance of the offence. The learned Sessions Judge after considering the entire materials on record also took cognizance of the offence prescribed in Sections 406, 409, 420 of the Penal Code against the accused. All that is required at the stage of framing charge is to see whether the prima-facie case regarding commission of certain offence is made out. The truth veracity and effect of evidence which prosecution proposes to adduce at the time is not to be meticulously judged at the stage of framing charge. In the instant case the accused stand indicted for offence punishable under Sections 406, 409, 420 of the Penal Code. Cognizance has been taken under the said sections. We have gone through the grounds taken in the application for discharge filed under Section 265C of the Code and we find that such grounds are absolutely the disputed question of facts and the same should be decided at trial. The plea of the accused are nothing but the defence plea. Be that as it may the proposition of law is now well settled that on the basis of defence plea or materials the criminal proceedings should not be stifled before trial; when there is a prima-facie case for going for trial.                                                   . . .(12)

Mr. Jafar Alim Khan, Advocate,

. . . For the Complainant-petitioner

Mrs. Sakila Rowshan,D.A.G. with

Mrs. Sharmina Haque, A.A.G. and

Mr. Md. Shorwardhi, A.A.G.

. . . For the State-opposite party No. 1.

Mr. Md. Shamsur Rahman, Advocate,

...For the accused-opposite party No.2

JUDGMENT

Syed Md. Ziaul Karim, J: By this Rule, complainant-petitioner has challenged the legality and propriety of the order dated 06-09-2005 passed by learned Sessions Judge, Brahmanbaria, allowing an application under Section 265C of the Code of Criminal Procedure (briefly as the Code)filed by the accused opposite party and discharged him in Session Case no. 98 of 2005 arising out of C.R. no. 117 of 2005 under Sections 406,409, 420 of the Penal Code.

2.            Facts in brief are that on 08-02-2005 the petitioner as complainant filed a petition of complaint in the Court of Magistrate, First Class, Brahmmanbaria accusing the accused opposite party alleging that since 05-03-2002 to 11-07-2003, the accused as Chairman of Kuthi Union Parishad collected tax for Tk. 84,158.00 from different persons but without depositing the same in the Government treasury misappropriated it. Thereby committed the offence prescribed under Sections 406, 409, 420 of the Penal Code.

3.            On receipt of the complaint the learned Magistrate held judicial inquiry into the allegations made by the complainant. To that effect the complainant adduced six witnesses and the defence also produced a good number of witnesses. On receipt of the inquiry report the learned Magistrate, after assessing the report came to a finding that prima-facie case of criminal breach of trust had been disclosed against the accused. Thereby he took cognizance of the offence. Later, he referred the case to the Sessions Judge for trial. On receipt of the case record dated 07-06-2005 the learned Sessions Judge took cognizance of the offence under Sections 406, 409, 420 of the Penal Code. Eventually, fixing 27-07-2005 for framing charge.  Subsequently and on the same day on behalf of the accused an application under Section 265C of the Code was filed by the accused stating that the complaint was filed at a belated stage and he was not responsible for collecting tax. Afterwards the learned Sessions Judge by the impugned order dated 06-09-2005 allowed the application under Section 265C of the Code and thereby discharged the accused from the case.

4.            Feeling aggrieved the complainant as petitioner preferred the instant Revision and obtained the present Rule.

5.            The learned Advocate appearing on behalf of the complainant petitioner and the learned Deputy Attorney General appearing on behalf of the State opposite party no.1 oppose the Rule.Their common contentions are that the petitioner by collecting tax misappropriated the whole amount without depositing it in the Government treasury. The grounds taken in the application for discharge are nothing but the defence plea which can be decided at the time of trial. So the learned Sessions Judge without framing charge committed illegality which calls for interference by this Court.

6.            The learned Advocate appearing for the accused –opposite party no.2 opposes the Rule and submits that the accused was not responsible in collecting tax. So he has no liability in respect of misappropriation. Thereby the learned Sessions Judge rightly discharged the accused.

7.            In order to appreciate their submissions we have gone through the record and given our anxious consideration to their submissions.

We should bear in mind, credibility of testimony oral and circumstantial, depends considerably on a judicial evaluation of the totality, not isolated scrutiny. When dealing with the serious question of guilt or innocence of persons charged with crime, the following principles should be taken into consideration.

a)      The onus of proving everything essential to the establishment of the charge against the accused lies on the prosecutor.

b)      The evidence must be such asto exclude to a moral certainty every reasonable doubt of the guilt of the accused.

c)      In matters of doubt it is safer to acquit than to condemn, for it is better that several guilty persons should escape than that one innocent person suffer.

d)      There must be clear and unequivocal proof of the corpus delicit.

e)      The hypothesis of delinquency should be consistent with all the facts proved.

Inspite of the presumption of truth attached to oral evidence under oath if the Court is not satisfied, the evidence inspite of oath is of no avail.

8.            A "Charge" corresponds to an "indictment" in English Law and is very much more than a mere form. It is a precise formulation of specific accusation made against a person. Charge has to be framed on the basis of the material placed before the Trial Court and while doing so the Court is not bound by the inquiry report submitted under section 202 of the Code of Criminal Procedure or in a Police challan case by the report submitted under section 173 of the Code of Criminal Procedure.

9.            A charge is an important step in a criminal proceeding. It separates the inquiry stage from trial. The whole object of framing a charge is to enable the defence to concentrate its attention on the case that he has to meet, and if charge is framed in such a vague manner that the necessary ingredients of the offence with which the accused is convicted are not brought out in the charge, then the charge is defective. The framing of a proper charge is vital to a criminal trial and this is a matter on which the Magistrate or Judge should bestow the most careful attention. A charge should be carefully drawn up in accordance with the offence disclosed. The charge should be precise in its scope and particular in its details. A charge is defined as a ‘precise formulation of the specific accusation made against a person who is entitled to know its nature at the very earliest stage. The necessity of a system of written accusation specifying a definite criminal offence is the essence of criminal procedure.

10.        By taking cognizance the accused is called upon to plead is a very important document. It should be drawn up and considered with extreme care and caution, so that accused may have no doubt whatever as to the offences to which he is called upon to answer and the Judge of the Appellate Court also may have no doubt upon the matter. The word ‘Ground’ means basis, foundation or valid reason. The whole object of framing a charge is to enable the defence to concentrate its attention on the case that he has to meet. Conditions for framing of a charge are (i) presumption of the commission of an offence on the materials before the Court and (ii) offences triable exclusively by a competent Court.

11.        In the case of Mohd. Aqil and another Vs. The State 1988 Crl. L.J. 1484 held:

" Framing of charge- Matters to be considered by Court indicated.

For the purpose of framing a charge the Court is required to consider judicially asto whether on consideration of the materials on record, it can be said that the accused has reasonably connected himself with the offence alleged to have been committed and that on the basis of the said material there is reasonable probability or chance of the accused  being found guilty of the offence alleged. If the answer is in the affirmative, the Court will be at liberty to presume "that the accused has committed the offence” as mentioned in S. 228 for the purpose of framing the charge. In finding out a prima-facie case not only the F.I.R. or complaint but even the statements of the witnesses recorded under S. 161 although the same may have been recorded after some delay during the investigation of the case are to be taken into consideration and if from all other material, a prima facie case is made out against the accused then the Magistrate has no option but to frame a charge against the accused. The Court is not expected to make a roving enquiry in the pros and cons of the matter and weigh the evidence as if he was conducting a trial. However, in a case, if two views are possible and the Judge is satisfied that evidence produced before him while giving rise to some suspicion does not give rise to grave suspicion against the accused, he will  be fully within his right to discharge the accused."

12.        On going to the materials on record it transpires that the complainant categorically narrated the manner of crime committed by the accused. In judicial inquiry, all the witnesses categorically stated that the accused is solely responsible for misappropriation of the amount. Therefore, the learned Magistrate after assessing the judicial inquiry report, found prima facie case against the accused and took cognizance of the offence. The learned Sessions Judge after considering the entire materials on record also took cognizance of the offence prescribed in Sections 406, 409, 420 of the Penal Code against the accused. All that is required at the stage of framing charge is to see whether the prima-facie case regarding commission of certain offence is made out. The truth veracity and effect of evidence which prosecution proposes to adduce at the time is not to be meticulously judged at the stage of framing charge. In the instant case the accused stand indicted for offence punishable under Sections 406, 409, 420 of the Penal Code. Cognizance has been taken under the said sections. We have meticulously examined the allegations made by the complainant and we find that the offences punishable under Sections 406, 409, 420 of the Penal Code have been clearly disclosed in the instant case. We have gone through the grounds taken in the application for discharge filed under Section 265C of the Code and we find that such grounds are absolutely the disputed question of facts and the same should be decided at trial. The plea of the accused are nothing but the defence plea. Be that as it may the proposition of law is now well settled that on the basis of defence plea or materials the criminal proceedings should not be stifled before trial; when there is a prima-facie case for going for trial. In view of such facts the grounds taken for discharge by the learned Judge are not the correct exposition of law. Moreso interruption of the course of Justice will set up a wrong precedent by which the course of justice instead of being advanced readily been stifled inasmuchas the grounds advanced before us by the learned Counsel for the defence are not correct or legal exposition of law. Therefore we hold that there are sufficient grounds for proceeding against the accused for going for trial under sections 406, 409, 420 of the Penal Code. To that end in view we are not at one with the learned Judge of the Court below regarding discharge of the accused. In view of the above we find merit in this revision. Thus the revision having merit succeeds.

13.        In view of foregoing narrative the Rule is made absolute. The impugned order dated 06-09-2005 passed by the learned Sessions Judge, Brahmmanbaria in Session Case no. 98 of 2005 is hereby set-aside. The Session Case No. 98 of 2005 shall proceed in accordance with law and in the light of observations made above.

         Office is directed to send down the record at once.

Ed.