CHANDI PULIYA versus THE STATE OF WEST BENGAL on 12 December 2022

1. Leave granted.

2. Feeling aggrieved and dissatisfied with the impugned judgmentand order dated 27.06.2022 passed by the High Court at Calcutta inRevision Application No. 1328/2022, by which the High Court hasdismissed the said revision application preferred by the appellant –accused and has confirmed the order passed by the learned SpecialCourt, West Bengal (MP & MLA case), Bidharnagar dated 4.3.2022passed in Special Case No. 120 of 2018, the appellant-accused haspreferred the present appeal.

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A3. The facts leading to the present appeal in nutshell are as under:

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A3. The facts leading to the present appeal in nutshell are as under:

That the appellant herein was tried earlier for the offencespunishable under Sections 148, 149, 448, 364 & 506 of the Indian PenalCode (IPC) in FIR No. 61/2002 dated 26.09.2002 of Keshpur PoliceStation. The appellant came to be acquitted by the learned SessionsBCourt vide judgment and order of acquittal dated 21.05.2010. Thatthereafter on 6.6.2011, after a period of nine years from the date ofregistration of the first FIR and one year from the date of acquittal, asecond FIR came to be lodged against the appellant and others alleginginter alia that the appellant and other co-accused had caused the deathof Ajay Acharya, i.e., father of the first informant, the same person thatCthey had alleged to have kidnapped and were acquitted of.

3.1 It appears that the second FIR was registered on the basis ofthe discovery of the skeleton and identification of the clothes and teethof the skeleton, by the son of the deceased, 11 years after the allegedincident.D

3.2 The appellant-accused approached the High Court seekingquashing of the entire criminal proceedings emanating out of the secondFIR vide order dated 29.04.2016. While dismissing the said proceedings,the High Court granted liberty to take up all the points of law at the timeof framing of charge. While dismissing the special leave petitions, thisECourt granted liberty to the accused – appellant to avail the remedy atthe stage of framing of the charge. Accordingly, a discharge applicationunder Section 227 r/w Section 300(1) Cr.P.C. was filed by the appellantbefore the learned trial Court. The learned trial Court dismissed the saidapplication by observing that such an objection can be raised at the stageFof framing of charge and not discharge. The order passed by the learnedtrial Court has been confirmed by the High Court, by the impugnedjudgment and order. Hence, the present appeal.

4. It is vehemently submitted by Shri Siddhartha Dave, learnedsenior counsel appearing on behalf of the appellant – accused that theGcourts below have erred in not considering the application for dischargefiled by the appellant at the stage of discharge. It is submitted that thestage of discharge under Section 227 Cr.P.C. is a stage prior to chargeand it is at this stage alone that the court can consider an applicationunder Section 300 Cr.P.C. It is submitted that once the court rejectsthe discharge application, it would proceed to framing of charge underH

Section 228 Cr.P.C. and the only question before it would be as to thenature of the offence, and not that the appellant has not committed anoffence, or that he cannot be tried on account of the bar under Section300 Cr.P.C.

4.1 It is further submitted that the courts below have failed toappreciate that the present proceedings arise from the dischargeproceedings and that the stage of discharge under Section 227 Cr.P.C.precedes the stage of framing of charge under Section 228 Cr.P.C. It issubmitted that as observed and held by this Court in the case of RatilalBhanji Mithani v. State of Maharashtra, (1979) 2 SCC 179, oncethe charges are framed, the accused is disentitled from praying fordischarge.

4.2 It is further submitted that it is true that the judgment of acquittaldated 21.05.2010 has been challenged by the State before the High Court,but the same has not been admitted by the High Court.

4.3 It is further submitted that the appellant has already beenacquitted of the offence of kidnapping. On the basis of the same facts,the appellant is now being sought to be prosecuted for the offence underSection 302 IPC, without invoking Section 346 IPC, only to circumventthe bar under Section 300(1) Cr.P.C. It is submitted that the bar underSection 300(1) Cr.P.C. also applies to prosecution for same facts forany other offence for which a different charge from the one made againstthe accused might have been made under sub-section (1) of Section221, or for which the accused might have been convicted under sub-section (2) thereof.

4.4 It is further submitted that in the case of State v. Nalini,(1999) 5 SCC 253, this Court while discussing the principle of autrefoisconvict and autrefois acquit held that Section 300 Cr.P.C. has widenedthe protective wings by debarring a second trial against the same accusedon the same facts even for a different offence.

4.5 Making above submissions and relying upon the aforesaiddecisions, it is prayed to allow the present appeal and discharge theappellant from the subsequent second FIR No. 36/2011, in terms of Section300(1) Cr.P.C.

5. While opposing the present appeal, Shri Sunil Fernandes, learnedcounsel appearing on behalf of the respondent – State has vehementlysubmitted that as such the order of acquittal in relation to first FIR is the A

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Asubject matter of appeal before the High Court. It is submitted that evenotherwise in the first FIR the appellant and other co-accused were triedfor the offences under Sections 148, 149, 448, 364 & 506 IPC in FIRNo. 61/2002. It is submitted that at the relevant time, the dead body ofthe deceased was not found. It is submitted that the appellant and otherco-accused were tried and as such acquitted for the offence of kidnappingBetc. and not for the offence under Section 302 IPC, as now to be triedpursuant to the subsequent FIR, which was lodged after the discoveryof the skeleton and identification of the clothes and teeth of the skeleton.It is submitted that therefore, as such, Section 300 Cr.P.C. shall not beattracted at all.C

5.1 It is further submitted that earlier the application submitted bythe appellant under Section 482 Cr.P.C. to quash the subsequent criminalproceedings emanating out of the second FIR came to be dismissed bythe High Court and the appellant was relegated to avail the remedy atthe stage of framing of the charge. It is submitted that the very plea/Ddefence under Section 300 Cr.P.C. was pressed into service but theHigh Court refused to quash the criminal proceedings arising of thesubsequent second FIR. It is submitted that thereafter when the accusedhad filed the discharge application, the learned trial Court rejected thesaid application by observing that the appellant-accused is entitled toraise all the points as mentioned in the petition under Section 300(1)ECr.P.C. at the time of framing of charge. It is submitted that as such thedischarge application under Section 227 Cr.P.C. is yet to be consideredby the learned trial Court.

5.2 Making the above submissions, it is prayed to dismiss thepresent appeal.F6. We have heard learned counsel for the respective parties atlength.

At the outset, it is required to be noted that pursuant to the libertyreserved by the High Court while dismissing the petition under SectionG482 Cr.P.C., the appellant accused filed an application for dischargeunder Section 227 r/w Section 300(1) Cr.P.C. Out of the said application,application under Section 300(1) Cr.P.C. has been dismissed by thelearned trial Court by observing that the appellant-accused shall be entitledto raise all the points including the applicability of Section 300(1) Cr.P.C.at the time of hearing on framing of charge. The application under SectionH227 Cr.P.C. filed by the accused is yet to be considered by the learned trial Court. At this stage, Section 227 Cr.P.C. is required to be referredto, which reads as under:

“227. Discharge – If, upon consideration of the record of thecase and the documents submitted therewith, and after hearingthe submissions of the accused and the prosecution in this behalf,the Judge considers that there is not sufficient ground forproceeding against the accused, he shall discharge the accusedand record his reasons for so doing.”

7. On a fair reading of Section 227 Cr.P.C, if, upon considerationof the record of the case and the documents submitted therewith, andafter hearing the submissions of the accused and the prosecution in thisbehalf, the Judge considers that there is not sufficient ground forproceeding against the accused, he shall discharge the accused and recordhis reasons for doing so. As per Section 228 Cr.P.C. only thereafter andif, after such consideration and hearing as aforesaid, the Judge is of theopinion that there is ground for presuming that the accused has committedan offence, the trial Court shall frame the charge. Therefore, as rightlysubmitted by Shri Siddhartha Dave, learned senior counsel appearing onbehalf of the appellant-accused that the stage of discharge under Section227 Cr.P.C. is a stage prior to framing of the charge (under Section 228Cr.P.C.) and it is at that stage alone that the court can consider theapplication under Section 300 Cr.P.C. Once the court rejects thedischarge application, it would proceed to framing of charge under Section228 Cr.P.C.

8. Under the circumstances, the learned trial Court has erred innot considering the application under Section 300(1) Cr.P.C. at the timeof framing of charge and/or prior to framing of the charge. As observedhereinabove, the trial Court had observed that the appellant-accusedshall be entitled to raise all points as mentioned in his application underSection 300(1) Cr.P.C. at the time of hearing on framing of charge.However, as observed hereinabove, such exercise was required to bedone at a stage prior to framing of charge and if ultimately the courtcomes to the conclusion overruling the objection of Section 300(1) Cr.P.C.and on facts satisfies then it may frame the charge as provided underSection 228 Cr.P.C. The High Court has not at all appreciated and/orconsidered the aforesaid aspect. Therefore, the matter is required to beremanded to the learned trial Court to consider the plea of the accusedon applicability of Section 300(1) Cr.P.C. at the stage of discharge under A

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ASection 227 Cr.P.C., which is a stage prior to framing of the chargeunder Section 228 Cr.P.C.

9. Now so far as the prayer on behalf of the appellant to dischargethe accused in view of the bar under Section 300(1) Cr.P.C. is concerned,the same may not be granted at this stage in view of the earlier orderBpassed by the High Court dismissing the petition under Section 482 Cr.P.C.to quash the criminal proceedings which were sought to be quashed onthe very ground and the accused was relegated to avail remedy at thetime of discharge. It is to be noted that the earlier order passed by theHigh Court had attained finality and even thereafter the appellant-accusedhad filed the discharge application under Section 227 r/w Section 300(1)CCr.P.C.

10. In view of the above and for the reasons stated above, theimpugned judgment and order passed by the High Court is herebyquashed and set aside. The matter is remitted to the learned trial Courtto consider the application under Section 300(1) Cr.P.C. filed by theDappellant – accused along with the application for discharge under Section227 Cr.P.C., which is a stage prior to framing of the charge and thereafterto pass appropriate orders on framing of the charge under Section 228Cr.P.C., in case the objection/defence of the accused under Section 300(1)is overruled and the trial Court is satisfied that there is sufficient groundsEfor framing of charge against the accused. The aforesaid exercise shallbe completed within a period of six weeks from the date of receipt ofthe present order. Needless to say, that the learned trial Court shall decidethe said application in accordance with law and on its own merits, withoutbeing influenced by any of the observations made by the High Court inthe impugned order or by this Court in the present order.F

11. The present appeal stands disposed of with the aforesaidobservations.

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Devika Gujral(Assisted by : Preetam Bharti, LCRA)

Matter remitted to trial court.

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