REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.  232  OF 2005   

R.S. Mishra           …Appellant               

Versus

State of Orissa & Ors.                                 …Respondents

J U D G M E N T

Gokhale J.

The appellant in this appeal is a retired Additional Sessions Judge  

of the State of Orissa.   In this appeal by Special Leave, he seeks to challenge  

the judgment and order dated 20.10.2002, rendered by a learned Judge of the  

Orissa High Court in suo-moto Criminal Revision No. 367 of 1997, arising out of  

Session Trial  Case No.  187/55 of  1995, to the extent the learned Judge has  

made certain observations against the appellant who had decided that session  

case.  These remarks were made on account of the appellant not framing the

charge under Section 302 of the Indian Penal Code (IPC) against the accused in  

that case, when the material on record warranted framing of that charge.

2. The facts leading to this appeal are as follows:

Appellant not framing the charge under Section 302 IPC,  

when warranted.   

The appellant joined the Orissa judicial service in November 1971.  

In August 1991, he was promoted to the cadre of District Judges.   During the  

period of his service, the appellant was transferred from place to place, and at  

the  relevant  time  in  March  1996,  was  posted  as  the  Additional  District  and  

Sessions Judge, Rourkela, when the above referred case bearing S.T. No. 187/55  

of 1995 was assigned to him.   

3. The case of the prosecution in that session case was as follows.  

There was a land dispute between one Megha Tirkey (the accused) and one  

Samara  Tirkey,  who  was  alleged  to  have  been  murdered  by  the  accused.  

Jayaram Tirkey is the younger brother of accused.  On 25.06.1995, at about  

11:00 a.m., Samara Tirkey (the deceased) is said to have abused Smt. Mangi the  

wife  of  Jayaram  Tirkey  (PW-1)  on  account  of  the  alleged  encroachment  of  

Samara’s land by the uncle of Jayaram, one Shri Daharu Kujur.   On the next  

day, i.e. on 26.6.1995, Jayaram Tirkey alongwith his brother Megha Tirkey, the  

accused went to the house of Samara Tirkey, the deceased.   Initially, Samara  

Tirkey  was  not  available  and Jayaram and Megha Tirkey  enquired  about  his  

whereabouts  with  his  wife  Hauri  (PW-3).   In  the  meanwhile,  Samara  Tirkey  

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reached over there.  Jayaram Tirkey asked Samara as to why he had scolded  

Jayaram’s wife in his absence.  Samara Tirkey is said to have raised his hand  

towards Jayaram when accused Megha Tirkey dealt a lathi blow on the head of  

Samara Tirkey whereby he fell  down.  Thereafter,  the accused Megha Tirkey  

gave two more lathi blows on his chest.  When Hauri caught hold of the accused,  

he gave a lathi blow to her also and she received a lacerated wound on her  

forehead.  Samara Tirkey was taken to the Raurkela Govt. Hospital, where he  

died on 27.6.1995 at about 2:00 p.m.   

4. Megha Tirkey was charged under Section 302 and 323 IPC.  The  

matter  reached  before  the  appellant  on  21.03.1996  when  he  passed  the  

following order:-

“Order No.8 dt. 21.03.1996

The  accused  is  produced  in  custody  by  the  escort  party.  Learned  Associate  Lawyer  who  represents  the  State  is  present.   Learned Defence counsel is also present.

Learned  Associate  Lawyer  opens  the  prosecution  case  by  describing the charges brought against the accused and stating by  what evidence he proposes to prove the guilt of the accused.  The  learned Defence counsel submits that there is complete absence of   evidence  to  frame  charge  u/s  302  IPC  and  that  the  available   evidence may bring at-best an offence u/s 304 IPC.

After hearing submissions of both sides in this behalf and on   consideration of the materials available in the case diary, I find there   is no sufficient material to frame charge u/s 302 IPC but there are   sufficient materials against the accused for presuming that he has   committed the offence u/s 304 IPC and 323 IPC.

Hence,  charge  u/s  304  IPC  and  u/s  323  IPC  are  framed  against the accused.  The charges being read-over and explained,   the accused pleads not guilty and claimed to be tried.

The  Defence  does  not  admit  the  genuineness  of  the   documents filed by the prosecution.

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Put  up  on  25.4.96  for  fixing  a  date  of  hearing  of  the  Sessions trial.

Sd/- Addl. Sessions Judge,

Rourkela, 21.3.96”

5. Subsequently,  the  appellant  was  transferred  from Rourkela,  and  

the matter proceeded before one Shri  S.K. Mishra, the subsequent Additional  

Sessions Judge at Rourkela.  It so happened that during the trial, some of the  

prosecution witnesses, viz. PW Nos. 2, 4, 5, 6, 7 were declared hostile by the  

prosecution since they did not support the case.  The Judge, however, found the  

evidence of Hauri (PW No. 3) wife of Samara Tirkey, the deceased, as acceptable  

and reliable.  Her testimony was supported by the medical evidence.  The Doctor  

found a lacerated injury on her forehead.  She stated that the accused had given  

a lathi blow on the head of the deceased and then on his chest, in her presence.  

She also stated about the lathi blow given to her.  The post-mortem examination  

revealed that amongst other injuries, the left side mandible of the deceased was  

fractured and there was subdural haematoma over the left parietal region of the  

scalp.  The other vital organs like lungs, liver, kidney were all congested.  Due to  

these injuries, the deceased went into coma and then died.  The learned Judge  

held that the prosecution had established the charges beyond reasonable doubt  

and found the accused guilty of offences under Section 304 and 323 of IPC, and  

convicted  him  accordingly.   He  sentenced  him  to  undergo  Rigorous  

Imprisonment for five years under Section 304 (1) of IPC and for one month for  

offence under Section 323 IPC, with both the punishments running concurrently.  

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6. Note by the Inspecting Judge

It so transpired that later the inspection of the Court of Additional  

& District Sessions Judge, Rourkela was carried out by Hon’ble Mr. Justice P.K.  

Mishra, then a Senior Judge of the High Court of Orissa.  At that stage, while  

going through the file of S.T. No.187/55 of 1995, Mr. Justice P.K. Mishra came  

across the above referred Order No.8 dated 21.3.1996 passed by the appellant  

herein.  Thereupon Mr. Justice P.K. Mishra made the following note on that file:-

“In this case, the only accused Megha Tirkey was charge- sheeted  under  sections-302/323  IPC  for  c lubb ing the  victim  (Samra Tirkey) to death on 26.06.1995 at 3.30 P.M.

The additional  Sessions Judge,  Rourkela while discharging  the accused from the offence under Section – 302 framed charges   under sections 304/323 of the Indian Penal Code without recording  any reason for  discharging the accused from the offence under  Section 302 IPC.  The order of the Additional Sessions Judge only  states  that  material  available  in  the case  diary  is  insufficient  to   frame a charge under Section 302 IPC.

It is the settled principle of law that while framing charge   the  Sessions  Judge under  Section  -228 Cr.P.C.  need not  assign  reasons,  but  he  is  bound  to  record  reasons  while  recording  a   discharge under Section 227 Cr.P.C.

In the present case, the widow of the deceased (P.W.3) has  testified that the accused dealt a forceful lathi blow on the head of   the deceased and two more blows on his chest.  The post-mortem  examination reveals  that  ramus of  the left  side mandible  of the  deceased was fractured on the chin besides left parietal region of   the scalp.

Relying on the ocular testimony of widow of the deceased   and the post-mortem examination report that lends support to her   evidence,  the  Additional  Sessions  Judge  recorded  a  conviction  under Section 304 (1)/323 of the Indian Penal Code and sentenced   the accused to undergo R.I. for five years on the first count and  one month R.I. on the second count with a direction for concurrent   running of sentences.

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It  is  no  body’s  case  that  the  offence  was  committed  on  grave and sudden provocation.  The Addl. Sessions Judge should  not have nipped the case U/s 302 IPC at the bud by discharging  the accused thereof by a non speaking order.  This is a fit case for   suo-moto revision U/s 401 Cr.P.C.”

7. Suo-moto Criminal Revision

In view of the note of Hon’ble Justice Mr. P.K. Mishra, the High Court  

took up a  suo-moto Criminal Revision against the order dated 21.3.1996, which  

was numbered as No.187/55 of 1995.  The learned Single Judge, who heard the  

matter,  went  through  the judgment  rendered  at  the  end of  the trial  in  Case  

No.187/55 of 1995, as well as the order of framing charge dated 21.3.1996.  He  

examined the material  on record and noted that P.W. No. 3 had come to the  

rescue of her husband when he received lathi blows.  She had also received a lathi  

blow.  Her evidence was, therefore, a credible evidence.  He referred to the post-

mortem report which stated that out of the four external injuries, injury No. 4, i.e.,  

fracture of ramus of left side mandible, was grievous.  On dissection, it had been  

found by the Doctor  that the brain  membrane was congested.   There was a  

subdural haematoma over the left parietal lobe and brain was congested.  The  

other vital internal organs like lungs, liver, spleen, kidney were all congested.  The  

Doctor (P.W. No.8) opined that death was due to coma resulting from injury to  

brain  and scalp bones and the injuries  were ante-mortem in nature.   On this  

factual aspect, the learned Single Judge held as follows: -  

“If  the  materials  in  the  case  diary  reveal  two  distinct   offences of the same nature then it is appropriate to frame charge  for more grievous offence or to frame charge for both the offences   distinctly and separately.  That being the settled position of law   and the prosecution case stands in the manner indicated above,  

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therefore, there is no hesitation to record a finding that learned   Additional Sessions Judge, Rourkela went wrong in framing charge   for  the  offence  under  Section  304,  IPC  by  declining  to  frame  charge under Section 302 IPC for no reason explained in the order   passed under Section 228 Cr.P.C.”

8. Impugned observation by the Single Judge

The learned Single Judge, however, noted that by the time he was  

deciding the Criminal Revision, the accused had already served the sentence of  

five years of Rigorous Imprisonment.  Therefore, he did not deem it to be a fit  

case for ordering a retrial under Section 300 (2) of Code of Criminal procedure,  

1973  (‘Cr.P.C.’  for  short).   He  disposed  of  the  suo-moto Criminal  Revision  

accordingly by his order dated 28.10.2002.

9. The learned Single Judge, however, made certain observations in  

para 5 of  his  order which are material  for our purpose.   This  para reads as  

follows: -

“5. A  Judicial  Officer  before  being  posted  as  Addl.   Sessions Judge gets the experience of conducting sessions cases as  Assistant Sessions Judge.  Therefore, in this case, it cannot be said  that the concerned Presiding Officer had no requisite experience to  deal with a matter relating to consideration of charge and to pass   appropriate  legal  order  under  Sections  227  and  228  Cr.  P.C  correctly.   When  the  accused  was  not  charged for  the  offence  under Section 302, IPC and instead he was charged for the offence  u/s 304 IPC, it  was incumbent on the trial  court to explain the   circumstances and to reflect the same in the order as to what was  the reason or lack of evidence not to frame charge for the offence  under Section 302 IPC. This Court finds no reasonable excuse for   the concerned Presiding Officer to commit a blunder in the above  indicated manner…….  If the said Judicial officer has not yet been  confirmed in the cadre of O.S.J.S (S.B.),  then before confirming   him in that cadre his performance be thoroughly verified and in the  event of finding glaring deficiency in his performance, as in this   

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case, then he may be kept on probation for a further period as   would be deemed just and proper by the High court.  If he has  already  been confirmed in  that  cadre,  then  his  performance  be  thoroughly  verified  before  giving  him  promotion  to  the  higher  scale.”

Thus,  in  first  part  of  this  para,  the  learned  Judge  has  held  that  the  

appellant had committed a blunder in not framing the charge under Section 302  

IPC. In the latter part of the para, he has made certain observations about the  

manner in which the appellant had passed the order dated 21.3.1996, and also  

some correctional suggestions about the appellant.

10. Subsequent to these observations in this order dated 28.10.2002,  

the High Court Administration examined the record of the appellant and denied  

him the Selection grade.   The appellant’s representation dated 24.09.2003 in  

that  behalf  was  also  rejected  by  the  High  Court  Administration  as  per  the  

communication  dated  20.11.2003  to  the  appellant  from  the  Special  Officer  

(Administration).   Being  aggrieved  therewith  the  appellant  took  Voluntary  

Retirement on 30.11.2003, and subsequently filed the present Appeal by special  

leave on 13.02.2004 to challenge the above order dated 28.10.2002 and the  

observations made therein.

11. Submissions on behalf of the Appellant

Mr. Uday Gupta, learned Counsel for the appellant, submitted that  

the  order  passed  by the  appellant  on 21.3.1996  was a  judicial  order.   It  is  

possible to say that this order was an erroneous one, but merely for that reason,  

it was not proper for the inspecting judge to direct that a suo-moto Revision be  

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filed against the same.  In any case, it was wrong on the part of the learned  

Single Judge who heard the suo-moto Revision, to make the observations which  

he has made in the above quoted paragraph 5 of his order which has affected  

appellant’s career.  Mr. Gupta submitted that the appellant had otherwise a good  

service record after his promotion in District Judge’s Cadre in August 1991.  He  

had worked initially as an Additional Special Judge (Vigilance) at Bhubaneshwar,  

thereafter for two years as the Presiding Officer of the E.S.I Court at Rourkela,  

then as Additional Sessions Judge at Rourkela in 1996 and then for three years  

as the Presiding Officer of the Central Govt. Industrial Tribunal at Asansol, West  

Bengal.  Subsequently, he became the Additional District Judge and Presiding  

Officer of the Motor Accidents Claims Tribunal in Cuttack, Orissa from July 1999  

to  November  1999.   From November  1999 to  September  2002,  he  was  the  

Director (Law Studies), Gopabandhu Academy of Administration, Bhubaneshwar,  

and subsequently  the Additional  District  Judge,  Talcher,  Orissa,  from October  

2002  to  30.11.2003.   He pointed  out  that  the  appellant  had  participated  in  

various seminars and conferences and presented his papers.  His record was  

otherwise quite good.   

12. Mr.  Gupta  relied  upon the  judgment  ‘In  the  matter  of ‘K’  A  

Judicial Officer [2001 (3) SCC 54]’.  The concerned judicial officer in that  

matter  was  assigned  a  courtroom which  had great  infrastructural  difficulties.  

Complaints  in  that  behalf  were  not  being  attended  in  spite  of  a  number  of  

representations  to  the PWD officials.   Being  dissatisfied  by this  inaction,  the  

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learned Judge issued a notice to the concerned authorities as to why action in  

contempt  should  not  be  taken  against  them.   The  PWD  acted  promptly  

thereafter,  and  carried  out  the  necessary  repairs.   Learned  Judge  therefore  

dropped the contempt proceedings but still held that there was a case to take  

cognizance under Sections 380, 201 and 120-B of IPC and issued process against  

the concerned officers.  Being aggrieved by that order, the matter was carried to  

the High Court where the High Court observed that the learned Magistrate had  

exceeded her jurisdiction defying all judicial norms to pressurize the officers, and  

her order was a gross abuse of the process of Court since there was no occasion  

to invoke the particular sections of IPC. When the Judicial  Officer carried the  

matter to this Court, this Court observed in paragraph 15 of the above judgment  

that  by  the  observations  of  the  High  Court,  the  Judicial  Officer  was  being  

condemned  unheard.   This  Court  observed  in  paragraph  15  that  such  

observations give a sense of victory to the litigant not only over his opponent but  

also over the Judge who had decided the case against him and the same should  

be avoided.  The counsel for the appellant relied upon the report of the First  

National Judicial Pay Commission to submit that at times the Trial Judges are  

really on trial as observed in the report.

13. The  learned  Counsel  for  the  appellant  then  relied  upon  the  

observations in para 13 of the judgment of this Court in  V.K. Jain Vs. High  

Court of Delhi through Registrar General and Others [2008 (17) SCC  

538] and the principles of law laid down in para 58 thereof.  In that matter, the  

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appellant while working as a Judicial Officer in the Higher Judicial Services of  

Delhi, vide his order dated 4.3.2002, permitted an accused in a criminal case to  

go abroad subject to the conditions that the accused would file Fixed Deposit  

Receipts (FDR) of Rs. one lakh and also surrender passports of his mother and  

wife.   When the said  order  dated 4.3.2002,  was  challenged,  the  High Court  

found those conditions unacceptable.  In its order, the High Court made certain  

observations against the petitioner and in paragraph 15 held that:-

“5…..This  is  nothing but a medieval  way of  administering   justice when family members used to be kept as hostages in lieu of   either  release  of  their  detained  kith  and  kin  or  procure  the  surrender of the wanted man.”

Being aggrieved by that order the Judicial Officer carried the matter  

to the Supreme Court, where this Court cautioned against making such strong  

observations, it expunged those remarks from the order of Delhi High Court.  In  

sub-paragraph IX of para 58, this Court laid down the following principle:-

“IX. The superior courts should always keep in mind that   disparaging  and  derogatory  remarks  against  the  judicial  officer   would cause incalculable harm of a permanent character  having  the  potentiality  of  spoiling  the  judicial  career  of  the  officer   concerned.   Even  if  those  remarks  are  expunged,  it  would  not   completely restitute and restore the harmed Judge from the loss of   dignity and honour suffered by him.”

Mr. Gupta emphasized these observations and submitted that the  

High  Court  should  not  have  made  the  above  observations  in  para  5  of  the  

impugned order which have caused an incalculable harm to the career of the  

appellant.

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14. He  then  relied  upon  paragraphs  16  to  20  of  the  judgment  in  

Prakash  Singh  Teji  Vs.  Northern  India  Goods  Transport  Company  

Private Limited and Anr. [2009 (12) SCC 577].  In that matter, in the facts  

of the case the High Court had described the approach of the Judicial Officer  

concerned as hasty, slipshod and perfunctory.  The adverse remarks against the  

appellant were removed in paragraph 20 of the judgment in the light of the  

principles laid down in ‘K’ A Judicial Officer (Supra).   This Court held that harsh  

or  disparaging  remarks  are  not  to  be  made  against  persons  and  authorities  

whose conduct comes into consideration before courts of law, unless it is really  

necessary for the decision of the case as an integral part thereof.

15. Reply by the Respondents

The arguments of the appellant were countered by Mr. Janaranjan  

Das and Mr. Suresh Chandra Tripathy appearing for the respondents.  Affidavits  

in  reply  have  been  filed  by  the  State  Government  and  also  on  behalf  of  

Respondent  Nos.  3  and  4  to  the  appeal,  i.e.  Registrar  (Administration)  and  

Registrar (Judicial) of High Court of Orissa.  It is pointed out in the affidavit on  

behalf  of  the High Court  that this  was not a solitary  incident concerning the  

appellant.   Adverse remarks were entered into his confidential  record for the  

years 1973-79 continuously, and again for 1981, 1983, 1987 to 1989, and 1991.  

It was also pointed out that in a case under Narcotic Drugs and Psychotropic  

Substances Act, 1985 (N.D.P.S. Act), the appellant had granted bail in the teeth  

of the prohibition under Section 37 of that Act.  He was, therefore, placed under  

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suspension from 19.12.1992.  An inquiry was initiated, though after considering  

the report of the inquiry, the proceeding was dropped and the appellant was  

allowed to resume from 15.8.1994.  He was then posted as Additional District  

Judge, Rourkela where he heard the matter concerning the murder of Samara  

Tirkey.  With respect to this submission of the respondents, the counsel for the  

appellant pointed out that after the revocation of suspension, his service record  

was good, and in fact thereafter the remark of being ‘outstanding’ was recorded  

in his service book for a few years.  The counsel for the respondents countered  

this submission by pointing out that subsequent to the revocation of suspension  

also  there  were  representations  against  appellant’s  honesty  and  integrity,  

particularly while working as the Industrial Tribunal cum Labour Court in Asansol,  

West Bengal.  In fact because of that, he was transferred back to Malkanagiri,  

Orissa where he opted for voluntary retirement.

16. It was submitted on behalf of the respondents that the case No.  

187/55 of 1955 was a serious one concerning the death of a young person aged  

about 40 years.  The deceased was given a lathi blow on his head because of  

which he fell down, whereafter also two lathi blows were given on his chest.  His  

wife also received a lathi blow and she was an eye witness.  Medical Evidence  

showed that because of these blows the deceased had died.  None of these  

aspects has been considered by the appellant in his order dated 21.03.1996,  

extracted above.  All that the appellant has stated in this order is that he had  

heard the submissions of both sides, and on the consideration of the material  

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available in the case diary, he found that there was no sufficient material  to  

frame the charge under  Section 302 IPC.   As against  that,  according to  the  

respondents there was sufficient material on record to justify the framing of the  

charge under Section 302 IPC, and in any case while declining to frame the  

charge under Section 302 IPC, the appellant ought to have discussed as to why  

according to him the material on record was not sufficient.  Absence of reasons  

in such a case amounts to a dereliction of duty.  The order in such a matter has  

to be a self-explanatory one.  Since it is not so, all that the learned Single Judge  

deciding the Revision has done, is to suggest to the High Court Administration to  

take corrective steps with respect to the appellant, and the same was justified.  

17. Consideration

We have  noted  the  submissions  of  both  the  counsel.   We  are  

concerned with the role of the Judge at the stage of framing of a charge.  The  

provision concerning the framing of a charge is to be found in Section 228 of  

Cr.P.C.   This  Section  is  however,  connected  with  the  previous  section,  i.e.  

Section  227  which  is  concerning  ‘Discharge’.   These  two  sections  read  as  

follows:-

Section 227 - Discharge  -  If, upon consideration of the  record of the case and the documents submitted therewith, and after   hearing the submissions of the accused and the prosecution in this   behalf,  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.   

Section 228 - Framing of charge  (1) If, after such  consideration and hearing as aforesaid, the Judge is of opinion that   

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there  is  ground for  presuming that  the  accused has  committed  an   offence which-

(a) is not exclusively triable by the Court of Session, he may, frame a   charge against the accused and, by order, transfer the case for trial   to the Chief Judicial Magistrate3[or any other Judicial Magistrate of   the first  class and direct  the accused to appear before  the Chief  Judicial Magistrate, or, as the case may be, the Judicial Magistrate of   the first class, on such date as he deems fit, and thereupon such   Magistrate] shall try the offence in accordance with the procedure   for the trial of warrant-cases instituted on a police report;

(b) is exclusively triable by the Court,  he shall  frame in writing a  charge against the accused.

(2) Where the Judge frames any charge under clause (b) of sub- section (1), the charge shall be read and explained to the accused  and the  accused  shall  be  asked  whether  he  pleads guilty  of  the  offence charged or claims to be tried.

18. As seen from Section 227 above, while discharging an accused, the  

Judge concerned has to consider  the record of  the case and the documents  

placed therewith, and if he is so convinced after hearing both the parties that  

there is no sufficient ground to proceed against the accused, he shall discharge  

the accused, but he has to record his reasons for doing the same.  Section 228  

which deals with framing of the charge, begins with the words “If after such  

consideration”.   Thus, these words in Section 228 refer to the ‘consideration’  

under Section 227 which has to be after taking into account the record of the  

case and the documents submitted therewith.  These words provide an inter-

connection between Sections 227 and 228.   That being so, while Section 227  

provides for recording the reasons for discharging an accused, although it is not  

so specifically stated in Section 228, it can certainly be said that when the charge  

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under a particular section is dropped or diluted, (although the accused is not  

discharged),  some minimum reasons in nutshell  are expected to be recorded  

disclosing  the  consideration  of  the  material  on  record.   This  is  because  the  

charge  is  to  be  framed  ‘after  such  consideration’  and  therefore,  that  

consideration must be reflected in the order.   

19.   It  is  also to be noted that a discharge order is passed on an  

application by the accused on which the accused and the prosecution are heard.  

At the stage of discharging an accused or framing of the charge, the victim does  

not participate in the proceeding.  While framing the charge, the rights of the  

victim  are  also  to  be  taken  care  of  as  also  that  of  the  accused.   That  

responsibility lies on the shoulders of the Judge.  Therefore, on the analogy of a  

discharge order, the Judge must give his reasons  atleast in a nutshell, if he is  

dropping or diluting any charge, particularly a serious one as in the present case.  

It is also necessary for the reason that the order should inform the prosecution  

as to what went wrong with the investigation.  Besides, if the matter is carried to  

the higher Court, it will be able to know as to why a charge was dropped or  

diluted.

20.   The observations of this Court in the case of State of Bihar Vs.  

Ramesh Singh [AIR 1977 SC 2018] / [1977 (4) SCC 39] are very apt in  

this behalf.  A bench of two Judges of this Court has observed in that matter that  

at  the  initial  stage  of  the  framing  of  a  charge,  if  there  is  a  strong  

suspicion/evidence  which  leads  the  Court  to  think  that  there  is  ground  for  

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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 Court referred to the judgment of a bench of three Judges in  

Nirmaljit  Singh Hoon Vs.  State of  West Bengal [1973 (3) SCC 753],  

which  in  turn  referred  to  an  earlier  judgment  of  a  bench  of  four  Judges  in  

Chandra Deo Singh Vs. Prokash Chandra Bose [AIR 1963 SC 1430], and  

observed as follows in para 5:-

“5. In Nirmaljit  Singh Hoon v.  State of  West Bengal  –   Shelat, J. delivering the judgment on behalf of the majority of the   Court referred at page 79 of the report to the earlier decisions of  this Court in Chandra Deo Singh v. Prokash Chandra Bose – 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”.(emphasis   supplied)

Further,  as  observed  later  in  paragraph  6  of  a  subsequent  

judgment of this Court in  Niranjan Singh Vs. Jitendra Bhimraj [1990 (4)  

SCC 76], at the stage of the framing of the charge, the Judge is expected to sift  

the evidence for the limited purpose to decide if the facts emerging from the  

record and documents constitute the offence with which the accused is charged.  

This must be reflected in the order of the judge.    

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21.  Thus it cannot be disputed that in this process the minimum that is  

expected from the Judge is to look into the material placed before him and if he  

is of the view that no case was made out for framing of a charge, the order  

ought to be clear and self-explanatory with respect to the material placed before  

him.   In  the  present  case,  all  that  the  appellant  stated  in  his  order  dated  

21.03.1996 was, that on consideration of the material available in the case diary,  

he had found that there was no sufficient material to frame the charge under  

Section 302 of IPC. This is nothing but a bald statement and was clearly against  

the statement  of  the injured eye witness,  and supporting  medical  papers  on  

record.  The appellant has not even referred to the same.  He has also not stated  

in his order as to why he was of the opinion that the material available in the  

case diary was insufficient.  Such a bald order raises a serious doubt about the  

bona fides of the decision rendered by the Judge concerned.   

22. In the instant case, a young person had been killed.  It was not a  

case of grave and sudden provocation.  The material  on record showed that  

there was an injured eye witness and there was the supporting medical report.  

The material on record could not be said to be self-contradictory or intrinsically  

unreliable.  Thus, there was a prima facie case to proceed to frame the charge  

under Section 302 IPC. The reason given for dropping the charge under Section  

302 was  totally  inadequate  and untenable,  and showed a  non-application  of  

mind by the appellant to the statements in the charge-sheet and the medical  

record.  The order does not explain as to why a charge under Section 304 was  

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being preferred to one under Section 302 IPC.  In fact, since the material on  

record revealed a higher offence, it was expected of the appellant to frame the  

charge for more grievous offence and not to dilute the same.      

23. The impugned order of the learned Single Judge deciding Revision  

notes that the appellant had been functioning in the rank of the District Judge  

from August  1991  onwards,  i.e.  for  nearly  5  years  prior  to  his  order  dated  

21.3.1996.  The impugned order further states in para 5, that a Judicial Officer,  

before being posted as an Additional Session Judge, gets an experience of taking  

the sessions cases as Assistant Session Judge.  It cannot, therefore, be said that  

the appellant  did not have requisite experience to pass  a correct legal  order  

under Section 228 of Cr.P.C.   

24. That apart, all that the impugned order in Revision has done is to  

suggest  to  the  High  Court  Administration,  that  if  the  appellant  is  not  yet  

confirmed, his probation should wait and if he has already been confirmed, his  

performance be verified before giving him the higher scale.  Since the appellant,  

was  already  confirmed  in  service,  all  that  the  High  Court  has  done  on  the  

administrative  side  is  to  check  his  record,  and  thereafter  to  deny  him  the  

selection grade.  The above observation in the impugned order in Revision is a  

suggestion to the Administration of the High Court.  It is not a case of making  

any adverse or disparaging remarks as in the three cases cited on behalf of the  

appellant.  In fact, in the first judgment cited by the appellant, in the case of  

V.K. Jain (supra), the observation of this Court in clause No. I of para 58 is very  

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significant, namely that the erosion of the credibility of the judiciary in the public  

mind,  for  whatever  reason,  is  the  greatest  threat  to  the  independence  of  

judiciary.  Having noted that the appellant had failed in discharging his duty in  

framing the correct charge, and having also noted that his record was not good,  

the High Court could not have granted him the selection grade.  The selection  

grade is not to be conferred as a matter of right.  The record of the concerned  

Judge has to seen, and that having been done in the present case (in pursuance  

to the observations of the learned Single Judge), and having noted the serious  

deficiencies,  the High Court  has  denied the selection grade to the appellant.  

Interestingly enough, in this Appeal by Special leave, the appellant is not directly  

seeking  to  challenge  the  denial  of  selection  grade.   He  is  challenging  the  

observations in the impugned order which led to denial of the selection grade.  

In our view, the impugned order contained nothing but a correctional suggestion  

to the High Court Administration which the Administration has accepted.      

25. It is only because of the note made by inspecting Judge that the  

cursory order passed by the appellant in the Sessions case diluting the charge  

against the accused came to the notice of the High Court Administration.  It is  

contended on behalf of the appellant that in any case the suo-moto Revision has  

not led to the reopening of the case under Section 401 of the Code of Criminal  

Procedure.  In this connection, we must note that by the time the  suo-moto  

Revision was decided, the accused had already undergone the punishment of  

rigorous imprisonment of 5 years.  Therefore, the Revisional Court did not deem  

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it  fit  to reopen it.   The appellant  cannot  take advantage  of  this  part  of  the  

judgment of the Revisional Court, to challenge the observations of the learned  

Revisional Judge making a suggestion to the High Court to scrutinize appellant’s  

record for the dereliction of duty on his part.  The appellant was responsible for  

an unjustified dilution of the charge and, therefore, the thorough checking of his  

service record was necessary which is, what is directed in the impugned order.

26. For the reasons stated above, we find no reason to interfere in the  

impugned  order  making  certain  observations  and  suggestions  which  were  

necessary in the facts and circumstances of the case.  The appeal is therefore,  

dismissed, though there will be no order as to the costs.

…………..……………………..J.  ( J.M. Panchal )   

                    …………………………………..J.  

( H.L. Gokhale )

New Delhi Dated:  February 1, 2011.

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