 We have a very special resource person with us. Honorable Mr. Justice, B. Boudi Har, former judge High Court of Karnataka and the judicial member of Karnataka administrative tribunal. It's a pleasure to have you with us today. Welcome to the webinar. Good evening to all the brothers and sisters. Sir has about more than two decades of experience as a judge. Sir initially started his practice in the course of Bittapur. And later, sir joined Karnataka State Judiciary in the year 1996. Later, sir got elevated as a judge of High Court of Karnataka. And presently, sir is serving as a judicial member of the Karnataka administrative tribunal. In the last two decades of his experience, sir has gained tremendous knowledge on both civil law and criminal law. And sir will be enlightening us on section 227 of the criminal procedure court which deals with discharge. Sir, over to you sir. Thank you sir. Good evening to all the brothers and sisters. Sir, whether I am audible clearly? Please sir, you are audible sir. Yes. Today, the topic that is assigned to me is section 227 of the criminal procedure court with regard to discharge of the accuser from the proceedings. The first we have to see what are the wordings of the section 227 of the criminal procedure court. So what it says, if upon consideration of the record of the case and the documents produced therewith and after hearing the accuser and also the prosecution, if the judge feels that there is no material to proceed with the accuser person, he can discharge the accused after recording the reasons. These are the exact words of section 227 of the criminal procedure court. So according to this, as you all know, after the charge sheet is filed, before the charge is framed invoking section 228 of the criminal procedure court, but natural for the accuser persons to make the application under section 227 seeking their discharge from the proceedings. If such an application is made, then what is the scope? What are the test to be determined by the court's supply before passing an order on such application? Whether the accused is to be discharged from the proceedings or the court can pass the order that there is a sufficient primacy material to proceed against the accuser person, therefore court can frame the charge under 228 and it can proceed to conducting the trial of the case. This is all in brief with regard to section 227. But the difficulty for our discussion is that you have seen number of the decisions of the high courts as well as the honorable Supreme Court. Question comes, whenever the discharge application is filed, what are the materials that is to be considered by the court is the corrects of today's discussion. Whether at that stage the accused is permitted to produce the documents or any other material by way of defense and whether such a material is produced before the court, whether the court or the judge can consider all these materials before passing an order is the discussion for the today's seminar is concerned. Now for this we have to go through the decisions of the honorable apex court in this regard so that the interpretation and every word in section 227 that will be made clear by the honorable apex court in series of the decisions. One of the decision you please note that the name of the parties and also the citation wherein it is a full bench judgment of the honorable apex court. The name of the parties is State of Orissa versus Devendra Nath Padi. State of Orissa versus Devendra Nath Padi is the case. It was decided by the honorable apex court on 29th November 2004. Here before this matter come up before the full bench of the honorable apex court earlier it was before the division bench of the honorable Supreme Court. And the honorable Supreme Court, the division bench after considering that there are decisions on both the sides. For example, in one case Satish Mehra versus daily administration and another Satish Mehra versus the daily administration and another wherein in this decision the division bench of the honorable Supreme Court ruled in that particular case is that when they accused at the very first instance at the initial stage itself while considering this the discharge application it is succeeded in producing such a reliable material which is of a impeachable, unimpeachable material and having a sterling quality and it also goes to clinch the very issue on which the court is hearing the matter and it wanted to pass the order. In that case why such material should not be considered by the courts of law. Therefore the honorable division bench of the Supreme Court in that particular case ruled that their material produced by the accused if it is of such a nature and considering that material if it goes to the very root and very sustainability of the case itself against the accused person if that is the nature which is unimpeachable and which is of a sterling quality there is nothing wrong for the court to rely upon such material produced by the accused person while passing the order in section 227. And if really this is the nature of the evidence or the material then the court can pass accept that material and pass the order discharging the accused person is the decision in that particular case is considered. If it comes to some other decisions of the honorable apex court, a three judge bench decision is also there and another two bench decision is also there in the state of Bihar versus Ramasimh it is a division bench decision state of Bihar versus Ramasimh and in the full bench judgment of the honorable apex court in one case that is a Supreme Tendent and Remembrancer of Legal Affairs West Bengal versus Anil Kumar this is another case wherein in these two cases which are referred state of Bihar and Ramasimh and this Supreme Tendent and Remembrancer of Legal Affairs West Bengal in this full bench judgment the honorable Supreme Court ruled that no no it is only the material produced by the prosecution that is to be looked into by the court but the accused is not permitted to produce any material at the time of hearing the application under section 227 these are the decisions ruled by the honorable apex court. So because of this reason that there are some set of decisions which say that material produced by the accused is to be permitted. So the accused is not permitted to produce any material by way of defense it is only the prosecution material is to be looked into by the court while passing the order because of this reason and to have the correct position of law. The division bench of the honorable Supreme Court referred to this matter that I have already referred to state of Orissa versus that is Dave in the North party. This is how the matter come up before the full bench of the honorable Supreme Court of India. And the honorable judge who delivered the judgment in this full bench is Justice VK Sabarwal who delivered the judgment of the full bench and the honorable judge took a view after consideration of this matter elaborately we can come to all those aspects little later. Ultimately the full bench ruled that no no the position of law is filed dealing with application under section 227 of the CRTC the judge has to look into only the material produced by the prosecution by way of statements recorded by the police officer and also the documents which are annexed therewith. These are the materials to be looked into and whatever the material the accused if he wanted to produce he is not permitted to produce even if he produce court need not look into such material produced by way of defense. This is ultimately the position of law in the full bench and up till now I am referring to other the recent judgment of the honorable apex court in the year 2020 also I will come to that decision also. Now the present position of the law is which holds the field is that decision in 2004 of the full bench that it is only the prosecution material is to be looked into but not the accused is not permitted to produce any documents by way of defense while hearing the application under section 227 is the aspect. Now we can see what are the contentions of both the sides in this particular matter before the honorable apex court. The beloved senior counsels who appeared on behalf of the accused. What is their contention that accused is to be permitted to produce the document and there is nothing wrong because it is basing upon justice, equity and fairness and also the fetchstone of article 21 of the constitution of India. Life and liberty of a person. Therefore the counsels made an argument that if such a right which is justice, equity, fairness and the fetchstone of the article 21 of the constitution if at all this is a negative or it is not allowed to be produced by the accused person. Then in that case what happens now it is nothing but while it was article 21 of the constitution that is one of the line of argument made by learned senior counsels before the honorable Supreme Court is concerned. They say that when the material produced by the accused person, if it is of such a quality, the sterling quality why unnecessarily that it is to be refused even if it is relied upon there is nothing wrong. It is perfectly within the four corners of the law itself. Therefore, the denial of the opportunity to this accused person after all the section says 227 that you have to hear the submission of the accused person. The wordings in section 227 is you have to hear the submission the world starts after considering the record of the case and the documents therewith and after hearing the accused as well as the prosecution. Then what do you mean by hearing? Hearing means giving an opportunity to the accused person to make a submission. Therefore, the object is that it is to be in assistance to the judge to take a decision whether he has to proceed with the conducting the trial of a case or the accused is going to be discharged. This is the object of the giving an opportunity. It is also the line of argument that if you say that he is permitted to canvas his argument but if he is not permitted in support of his argument if he is not permitted to produce the material by way of defense then it becomes empty formality. What is meaning? What is the meaning of giving the hearing to the accused person? It becomes empty formality but these contentions were not accepted by the honourable full bench of the honourable supreme court in that particular case in that the Rajesh, the Devendranath party's case is concerned. They learned the their lordships have discussed this aspect in detail. What the lordships have said? No doubt he is having an opportunity to submit his arguments. But his argument must be confined to the material which is produced by the prosecution by way of the statement recorded by the police as well as any other documents produced or any articles are produced. That is to be looked into and he can make use of that material. Out of that material produced by the prosecution he can make out a case that even if this entire material is considered on its face value, take it for granted that accept the entire charge it material. Even if even without a cross examination of those materials if there is no material proving that the involvement of the accused is concerned and there is no prima facie case in that case what happens now the accused will have to be discharged from the proceedings. This is one of the contentions taken before the honourable supreme court. But as I have already told the supreme court say your right is no doubt you can argue the matter. You can make use of the material. What material not yours by way of defense. You are not permitted to produce any material. And in the CRPC there is no provision that having the right to the accused person that he can at that stage he can produce some material by way of defense. This is the law. Therefore the supreme court made it clear. You can make use of the material produced by the prosecution collected during investigation by way of recording the statement of witnesses and also the documents produced therein and also the articles which have been produced. What do you mean by these articles? Yes anybody? What do you mean by these articles? We can understand that if the investigation officer collected the materials by way of recording the statement or statement of witnesses. Alright we understand. And the documents which were produced we also understand what is this additional word even the articles produced. What is this article? Have you seen in the criminal proceedings take any cases before the magistrate court or before the sessions court that during the course of the trial what are the materials they are going to be produced before the court is that some material objects are going to be produced. Take for example a murder committed with an axe. The axes becomes a material object. So material object if we look into the definition part in our Indian evidence act under section three what is the evidence part as defined under the Indian evidence act is only two kinds. First one class one section three subclass one what it says evidence means and includes. Evidence means and includes meaning thereby when you say that it includes it is not you can very well say that it is not an exhaustive definition because there are some other aspect to be included in the definition of the evidence. And section three subclass one it says that all statements made by the witnesses. All statements made by the witnesses are which the court permits to be made before it in relation to the fact in issue to be determined such statements are called as oral evidence we are calling it. And class number two all documents produced for the inspection of the court it is called as that is the documentary evidence. When I say that material the articles are also to be considered by the judge while considering this application under 227. We can see that the articles means it is a separate kind that as per the English law they are calling it as a real evidence. It is classified as a real evidence. The material objects are classified as the real evidence under the English law. But in our law what happens now even if they are the articles are they the material objects they will come within the definition of either oral or the documentary evidence any one of the class. Here we can say material objects comes under documentary evidence. What do you mean by document? A document is a permanent record of happening of a fact. Suppose a blood stain clothes are produced. The clothes it show happening of some incident because they are blood stained. Some axis producer which is the blade is with a full of the blood. This comes within the definition of the term document because it is a permanent record of happening of one particular event that fact. Therefore the court while considering this discharge application it has to look into even this materials which has been produced and which has been committed by the court the the committal court before the session court is concerned. Therefore these are all the aspect to which the judge has to take into consideration and then he has to pass the order under discharge application. Now the next aspect is when you say that accuser is not permitted to produce the material by way of defense and it is only the the prosecution side material only is to be looked into by the court if that is the proposition. What is there regarding section 91 of the CRPC section 91 of the CRPC what it says yes section 91 what it says. You are seeking a summons before the criminal courts isn't it you are seeking a summons before the criminal court by filing a petition that such a person be summoned to produce the documents. You are taking such summons by filing the petitions under section 91 of the CRPC is concerned. Therefore one of the line of argument by on the side of the accuser person before the honorable Supreme Court because this was also considered by the honorable Supreme Court in that full bench judgment. Therefore we have to make our reference in what way the Supreme Court dealt with this section 91 and even after considering this 91 whether the materials produced by the accuser by way of defense are to be considered or they should not be considered at all. Supreme Court say looking to the wordings in section 91 this power is you please read the wordings of section 91 the power is vested into the court or the any police officer they can make a request before the court. You can see section 91 of the CRPC it is only the power of the court or the police officer that if he is in need of any particular document for the purpose of facilitating investigation inquiry trial or other proceeding four words are used. If any document is necessary before the court for what purpose for the purpose of the investigation for the purpose of inquiry for the purpose of trial or other proceeding then such persons can approach under section 91 and sort the summons against a particular person that that person be directed to produce the particular document. Therefore a line of argument basing upon this particular section 91 the advocates on the side of the accuser they made the submission that this provision also clearly goes to show and it mandates that the material on the side of the accuser can be produced and even if such material by way of defense is produced then it is the duty of the court to consider such material is another line of argument. But what the Honorable Supreme Court said in that full event statement the Honorable Supreme Court said no doubt the application can be filed before the court seeking the summons seeking the production of any document in the custody of any particular person during investigation inquiry trial or other proceeding but Supreme Court said the point of time and the stage of the proceeding is very very important. The words interpreted by the Honorable Supreme Court referring to section 91 necessarily necessary then Supreme Court said at the stage of considering this application under section 227 of the CRPC what is the necessity for this accuser? His necessity comes only when during the course of the trial not at the time of considering the application under section 227 of the CRPC where is the question of accused seeking the summons from the Supreme Court and that he wanted to produce some material by way of defense that stage will not arise at all for the so far as accused is concerned. This power is mainly given to the court if the court feels if the court feels that it is necessary that any such document is required. And if the police officer who is conducting the investigation feels that such documents are necessary without which he can't complete the investigation then in that case they can approach the courts under section 91 of the criminal procedure court and they can seek a summons against a particular person and then the material whatever collected by the court or the investigation officer on the side of the prosecution that material can be considered this is the view expressed by the full bench of the Honorable Supreme Court while dealing with that full bench decision. Supreme Court also gave some of the examples what they said Supreme Court said if your contention is the defense contention is to be accepted what is the contention? No, no whatever the material I am going to produce by way of defense those materials will auto be considered by the Honorable Court while considering my application under 227 CRPC Supreme Court said then it is nothing but conducting a roving inquiry it is nothing but a minute trial at that stage. It is a minute trial court is conducting then unnecessarily it will delay the proceedings and two trials comes into operation one is while considering this application under 227 another one is at the final trial when the charge is framed this will happen it will delay the process. Therefore that is not the scope of the section 227 while considering that application that roving inquiry should not be conducted by the court. Court has to see only the prime officer material whether it is a case to proceed with the trial of the accused person or it is a case that they have to allow the application and to discharge the accused person at that stage. This is the scope of the Supreme Court said one example has been given by the Honorable Supreme Court while repelling the contentions of the senior counsels appeared on behalf of the accused before the Supreme Court. One example Supreme Court said suppose the accused has taken a plea of L.E.B. plea of L.E.B. has taken you know plea of L.E.B. what do you mean by plea of L.E.B. Suppose if there is a murder charge as against the accused person it is on a particular day particular time at a particular place but his contention when this alleged incident took place I was elsewhere. I was not at all the spot I was elsewhere very alone on Jagad Ali with them I was elsewhere that is his defense that is called plea of L.E.B. Supreme Court said suppose the accused person taken such a plea while hearing the application under 227. Is it correct that the court has to consider that plea at the time of considering 227 itself? It cannot be why because the burden this refers to whenever you say that plea of L.E.B. there is a particular section under the Indian evidence act section 103 of the evidence act. Section 103 of the evidence act what it says if a person took a specific plea then the burden is upon that particular person to establish because it is his assertion that I was elsewhere. I was if the offence has taken place at Bangalore on that night or on that day when the offence has taken place I was in Vizagore I was at Beaver. If such a contention is taken by the accused person then what happens now it requires a recording of evidence. Matter is to be dealt with in detail before the court that will possible only during the course of the final trial but not at this to criminal stage of considering the application at the time 227 of the criminal procedure court. Because you see in order to say that he was elsewhere perhaps he wanted to write upon some of the documents. You know that some accused persons they are producing the lodging receipts to show that on that particular night he was staying in a particular lodging in Vizapur or at some other place and he is having a document evidence. Or he is producing some other material that he was working under a particular employer. The employer certified and he issued the certificate that this person accused on that night or on that particular date he was working under me he was very much present here. He wanted to rely upon such these certificates by way of document evidence or he wanted to examine those persons before the court. Then in that case what happens now after his examination the prosecution must have an opportunity to cross examine the witnesses. Because it is to be whatever a contention regarding the plea of LVD I choose that is taken before the court that is to be verified and testified before the court by the prosecution. So this requires normally that this is possible only during the course of final trial and such a serious contentions they cannot be taken into consideration only during the period while hearing the application at the initial stage that is the considering application under section 227. There is one decision it is the case of the state of Bihar that is the remission I have already told the division decision. A case from state of Bihar versus remission. It is a case and justice the case is dealt with by the division bench of the honorable Supreme Court. The learned judge who delivered the judgment in this particular case is justice Antwalia. Antwalia he delivered the judgment in that particular case. What are the factual matrix involved in that particular case is the husband of the deceased. The husband of the deceased he was working in a college as a professor. He was working in a college as a professor and one day what happens now in the house. This is the death taken place in the house itself of the couples the professor and his wife they were residing in the house. And what happens on a particular date at 3 a.m. I am referring to 3 a.m. means during the night the incident has taken place. What is the incident that the wife she was she sustained the burn injuries on her body. She was making you and cry and the brother of the deceased one Chandreswar the name used Chandreswar who was the brother of the deceased. He was he was also the lecturer in another college and he was residing in nearby this place of the house of this particular person. Therefore after hearing the hue and cry this Chandreswar along with another his brother both they came to the house and rushed to the house of this particular person. What they have seen at the first instance they have seen that the wife is struggling with the burn injuries. And these fellows the husband and his brother they were simply watching this scene they have not taken any steps to extinguish the fire. These are on the facts approved and what is discussed by the under the supreme court in that particular case. Then ultimately she died and it is unnatural death. The case is booked against this husband under section 302 and 201 of the IPC is concerned. Then in that is what happens now during the course of the hearing. What happens now the after considering the prosecution material because the professor who was working that the husband of this deceased lady. He made an application before the court trial judge allowed the application and he was a despair from the proceedings. What is the observation made by the trial guys. There are no direct witnesses even there is no circumstantial evidence also. Therefore holding that it is a quick case that there is no primacy material produced by the prosecution. Hence accuser is entitled creating like this the accuser was ordered to be discharged on the proceedings under section. Then the matter was taken up before the Patna High Court Patna High Court also confirmed the same. It also confirmed the same. Ultimately when the matter was taken before the honorable Supreme Court Supreme Court reversed the judgment of both the courts below. Supreme Court said that whenever such materials are going to be considered. It is a serious allegation. Now the question before the trial court which is going to be conducted during the course of the trial. What is the fact in issue whether it is a murder committed by her husband. Or whether it is a suicide committed by her powering some oil on her body. Myself. This is the fact in issue. This is to be established Supreme Court said such a serious issue involved in that particular case. How at the interim stage that were at the beginning stage that though without giving the opportunity to the prosecution to explain about all these. Only on the basis of this material at that is how the judge comes to the conclusion that there is no primacy material direct evidence is not there. Circumstantial evidence is not there. Therefore it is patently and illegal the judgment. It is not sustainable Supreme Court set aside that statement. And the materials on the side of the prosecution. What is the statement recorded during the investigation which they go to show that this professor he was having a fair with one student of that particular college. He was having a fair with one student of that college and it was known by the wife. Therefore what happens now in order to make his route very clear that there should not be any hurdle in his affairs with the student. He wanted to eliminate his wife. Therefore this incident has taken place is the one version of the prosecution. For that there are statements recorded during the investigation. But what is the defense and argument on the side of the accused before the courts are concerned is that. No no this affairs he came to know. Therefore she was frustrated. She committed suicide by herself. It is not a murder. This was the stand taken by the accused during the course of hearing the application under section 227 of the CRPC. Now let us see what is the law regarding the house murders. What is the law on the house murders because you have to see. You cannot frame the law or the rules in a particular set that it is applicable to all the situations. You cannot say that the straight jacket formula or the rules are the evidence act. It cannot be made such a rule because every aspect is to be considered what are the facts and circumstances involved in that particular case. So the standard of proof it differs from suppose if the murder has taken place on the public road in the broad daylight. The consideration is entirely different. If the murder has taken place in four corners of the house during the night back to you cannot expect any independent witnesses to witness that incident. Therefore these are the aspects which have to be looked into and this will be only considered during the course of the trial. And regarding the house murders are concerned. What is the relevant provision under the Indian Evidence Act? Yes anybody. What is the relevant provision so far as the house murders are concerned when only the two couples are staying in the house. Section 106 of the Indian Evidence Act is the relevant provision. Section 106 of the Evidence Act is the relevant provision and on that provision there is one division between the decision of the honorable Supreme Court. And the honorable judges consisting in the bench just is Ravindran our own judge from Karnataka in the Supreme Court. And another judge in the bench is Justice Matthew. And they dealt with the matter in one criminal appeal appeal bracket criminal 1341 by 2005 criminal appeal before the honorable Supreme Court. The number of the cases appeal into bracket criminal 1341 by 2005 and the date of the judgment of this particular case is by the honorable Supreme Court 1110 2006. 1110 2006 is the date of the judgment and who are the parties? Who are the parties in this particular case? Parties name is Trimukha Maruti Kirkan. Trimukha Maruti Kirkan versus state of Maharashtra versus state of Maharashtra. This is the decision. Now we can see what is the law laid down by their lordships referring to section 106 of the Indian Evidence Act is concerned. Whenever such a thing happens in a dwelling house when the only two couples are staying in that particular house. Burden is upon home. It is the burden is upon another couple under the spouse. He has to explain under what circumstances because they are only the two persons in the residential house during night. And when this incident has taken place there is a death in that house. It is for the another spouse either wife or husband they have to explain the circumstances under which this incident has taken place. So this is one of the important serious circumstance to be considered in the case that too during the course of the main trial. During the course of the main trial this aspect is to be dealt with by the honorable Supreme Court. If this is the law then how the trial code we proceeded to pass the order that no, no, there is no direct evidence. There is no circumstantial evidence. Therefore they actually entitled for discharge from the proceedings accordingly he passed the order which is confirmed by the Patna High Court. But I have already told before you the honorable Supreme Court reverse the judgments of the courts below and directed that trial is to be conducted. The trial court has to proceed with the trial of the case. This is one of the judgment how the things that will take place whenever you are considering a particular the application is concerned. Now comes to the other the such the instances one of the import the recent treatment of the honorable effects court. I can cite that you can take the citation of this case because it is a recent judgment of the honorable effects court. 2020 to SCC. 2020 to SCC 768. 768. And name of the party. Me, Sivilinga Murthy Appellant. Versus Central Bureau of Investigation, Bangalore. In this also the court has taken into consideration what is the scope of section 227 of the CRPC. Because here what happens this is the case from Karnataka. The Appellant here in ME Sivilinga Murthy. Earlier he was a member of the Karnataka civil service. Later on he was considered as member of the Indian administrative service IAS. And he was working in the mining department as a director of the mining department mines and geology in the government of Karnataka. This is from the period 2008 to 2010 the period. But during this period one incident that has taken place. There was one firm which was constituted partnership firm which was constituted Messers Associated Mineral Company AMC. Mr Associated Mineral Company this was constituted originally in their 1966. And subsequently what happens now the partners some of the partners where they were leaving the retiring from the firm and new partners were inducting into the firm. This is all happening from 81 this was happening. And whenever a new partners were inducted into this partnership firm AMC Messers AMC. Then in that case what happens now they used to apply for issuance of the fresh MDPs. Mineral the mineral dispatch the permission they were used to apply because they were quoting that some new members have become the partners of this firm. The firm is reconstituted and there was one the partner who was going he was retiring in the year 2009. He addressed one letter he addressed one letter to the director that is the appellant hearing. What he has stated the new members that is their accused number one and two who are new members entered into the partnership newly and partnership firm was reconstituted. He addressed a letter to the director that they are to be assigned with the mineral compensation permits. Then these two accused persons also they made a request. Ultimately what happens now the matter was referred to the section officer who was dealing with mining matters. Section officer was dealing with mining matters. He put a note and the note was also scrutinized by the superintendent the senior officer in the mining department. Then there was an additional director after seeing this note both the original section officer what the section officer has mentioned in the file prior permission of the government is required and take the legal opinion with this request. Even the additional director also he is of the opinion that the legal opinion is to be sought in this matter. But ultimately what happens now without taking that the legal opinion from the concerned legal advisors the ultimately the file came up before the director that is the appellant hearing. He passed an order no no I have orally contacted and discussed this matter with the additional director. Therefore taking such a the prior the permission is not required. And the earlier practice was that even though there was a reconstitution of the firm many times rule 37 of the mining rules 1960 Karnataka the mining rules 1960 they were not. They are not the firm has not informed to the government that was the earlier practice. That is therefore observing all these things ultimately the appellant hearing he passed an order in the file that he directed the deputy director of mining to issue the mineral compensation permits to these newly constituted the partners. No doubt it is mentioned in the permission that it is to be in the name of the firm partnership firm. Then ultimately what happens now during the investigation it was transpired that this is director mining department mining mines and geology. He conspired with the partners of the firm. He conspired. And there are the offenses which were released as 120 B of the IPC that is the conspiracy. And another sections are that theft is the criminal trespass in the land is the transportation of the mining lease my mines and mining or death all these sections were put against this application as well as the other the partners were seven in number that is actual number one to seven like that and this the appellant hearing before the supreme court he was the actual number three. He was a three. Then ultimately what happens now when the matter come up before the court the trial judge. Passes the order discharging this person from the proceedings holding that there is no such a primacy material to proceed with the the trial of this particular the person that is the director of the mining and geology department so order is passed discharging him from the proceedings and this is the order of the trial court. Then when the matter was taken before the Karnataka High Court Karnataka High Court after producing the entire material it reverse the order of the trial court. It held that no no there cannot be discharged that is the primacy material. And in this case what happens now rule 37 is not at all followed. While getting while giving the direction to the deputy director of the mines and geology to issue the the mining permits to this newly constituted firm because of the induction of the number one and two. Therefore the honorable high court said that when such a mandatory requirements under rule 37 is not complied with. Then even if that it is assumed that there is no conspiracy but this legal requirement it says that that is something fishy in the matter it is only during the course of the trial that is to be employed into and it is not the stage for discharging the criteria that is the judgment delivered by the Karnataka High Court. Then ultimately the matter taken up before the Supreme Court now we are dealing with this matter that he approached the Supreme Court in that particular I have given the citation. And this is also dealt with by the division bench of the honorable Supreme Court consisting their lordships Sanjay Kishan Kaun and K. M. Joseph Regis Sanjay Kishan Kaun and K. M. Joseph Regis. And his lordship that is K. M. Joseph delivered the judgment in this division bench case and the Karnataka government judgment the high court judgment it was upheld by the Supreme Court. The Supreme Court said the Karnataka High Court has taken a correct view that it is not a case for discharge after considering the entire material. At that stage it is only the court has to see the prima facie material and court should not conduct such a roving inquiry and it should not have the probative value of the whatever material collected. Therefore high court is exercising its jurisdiction correctly. We don't find any illegality in the order of the honorable high court ultimately. This is one of the another case that we have discussed. This is under the mining the department case is concerned. This is how there may be cases before the court variety of cases and during the course of the the inquiry or investigation material collected by the investigation. It doesn't mean to say that I never say that in all the cases that charges to be played and in no case that it is not my contention. There are cases wherein the accused are able to make out a case. If you say that the accused is not permitted to produce his own material by way of defense but at the most he can argue the matter by referring to the prosecution material. Even after referring to the prosecution material there are some accused who are able to make out a case that even if this entire material to prosecution is accepted without the cross examination on its base value it is still not going to make out a case. If such cases are there in that case what happens now that there is no any prima facie material to proceed to be the trial of the accused person in such cases. Therefore the discharge of the order will be passed to the honorable court. I have collected one such the decision wherein the honorable supreme court passes the order of holding the orders passed by the court below. You can have a citation wherein here it is a case I will give the the about the brief history about the case. In this case the trial court order for discharge of the accused holding that there is no prima facie material. Then that order was confirmed by the high court. That order was confirmed by the high court. And ultimately when the union of India approached the honorable supreme court challenging the orders of both the courts below but even then the supreme court said that it is a concurrent findings of the courts below holding that there is no prima facie material. Therefore only the courts below ordered for discharge of the accused person there is no material to interfere into such matters. Therefore the supreme court dismisses the case while the union of India this is wherein I have collected wherein that accused are able to make out a case that there is no material at all to proceed against us holding the the trial. Proceeding with the case which is of no use at all even if considering the prosecution material absolutely there is no prima facie case. Therefore under such circumstances the court has to pass the order that it is a case wherein there is no material. Therefore unnecessarily there is no use of proceeding with such cases because it is a waste of the valuable time of the court. Therefore the court is going to pass the orders passing an order for discharging the accused invoking the jurisdiction under section 227 of the CRPC is concerned. This is another decision that I have given to you can take the citation of this case the division with the decision of the supreme court wherein discharge order was confirmed throughout from the trial court from the high court and even from which is confirmed by the honorable supreme court. You can take such decision the citation 1979 3 SCC 4 name of the parties union of India versus Praful Kumar Samal and another Praful Kumar Samal and another. Here in brief touching the factual aspect of this particular case is concerned what are the allegations in this particular case as against the respondent hearing. The respondent hearing he was the respondent number one he is the accused person he was working in the government secretary at as a secretary to the government and another accused he was a land equation officer. There is one land and what happens now one authority that is the that authority was in a hurry to that some area is required for construction of the stock quarters and because of that reason they approach the accused persons. You please see if the area is to be acquired by the government then the compensation is to be paid by the government to the land owner isn't it compensation is to be paid to the land owner. But here in this case what happens the allegations were that it was the land Kaas Mahal land land was Kaas Mahal meaning thereby it is the piece of land which belongs to the government wherein it is given to on lease basis to the individuals. This is the concept of Kaas Mahal land. And what happens now in this particular case one officer the accused person accused number two was the land equation officer and accused number one was that he was the officer working in the secretary of the government and he was having the lease hold rights. You are all accused number one was having a lease hold rights accused number two was a land equation officer certain portion that was acquired and there is a compensation of rupees 4,48,000 and odd this was the amount that was 4,48,000 that was the compensation that was awarded by the government. Here the allegations against the accused number one and two that both of you colluded with each other. There is a conspiracy that you wanted to cheat the government by granting the enhanced compensation amount higher the compensation amount huge compensation amount that was the main charge against these accused persons. But after examining the records in this particular case the trial court the high court and even the underprivileged supreme court they made a consistent the observation that looking to the material we don't find that there is any material to show that there is a conspiracy in between the land equation officer accused number two. And this is the secretary to the accused number one because it was made it clear by the accused number one to the government itself that the land belongs to the government. He has not hidden anything the land belongs to the government government is the owner of the land he was only the lease holder lease holder from somebody and the person. So the courts the supreme court also make an observation he is honest in making the submission in the correspondence he made it clear he never said that it is a private land of me. He has not suppressed the material he openly said in the correspondence that this land the owner of the land is it is a Kashmir land belonging to the government wherein I am having the lease hold rights whatever the compensation to be payable for my lease hold rights. So the court said there is a fairness in this particular case there is no conspiracy between the person and even looking to this compensation amount whether it is on the higher side the supreme court taken into consideration some other the rate of the compensation that was granted in the year 2017. Compared to that, if this after two years if this compensation amount is given for a curve that is nearly two lakhs rupees, it is not on the higher side, that is also the reasonable amount that the land acquisition officer has awarded. And we never we don't see any prima facie material regarding the conspiracy or company of any other offenses in this particular case and throughout that I have already said all the three courts accepted the version of the accused person and ultimately the order came to be passed by the trial court that this is to be made up the circulation no trial is necessary confirmed by the high court and confirmed by the honorable supreme court which is another decision that I have brought before you. Now come to the other aspect that during the course of the discharge application under section 227. Only the prima facie is to be looked into and the court cannot conduct a mini or a roving inquiry at that stage is the principle under that suppose for example, there are dying declarations. A person who is going to die he is leaving a the statement the declaration is made before the death that is called that you are all loosely calling it as a dying declaration. But according to me it is according to my the opinion dying declaration is the English principle it is not ours. In our Indian evidence act we never see this word of dying declaration for your information. What we are having the principle in the Indian evidence act the relevant provision is section 32 class one section 32 class one of the Indian evidence act deals with that principle which you have borrowed from England of the English dying declaration principle. What is the what is the section 32 class one says statements or declarations made by the declarant with regard to cause of his death or any other transactions or any other circumstances in which the death has taken place. This is our definition under section 32 class one of the Indian evidence act it deals with the dying declaration. Suppose in one criminal case 302 case is there. There are two dying declarations and now question comes to 27 application is filed by the accused person before the court seeking to discharge from the proceedings holding that no no even looking to the dying declaration also that there is no consistency. They are contradicting with each other I am entitled for discharge from the proceedings why you are unnecessarily proceeding with the matter conducting the main trial against me. This is all the submission. Now what the courts how the courts have to consider these type of situations yes only because that there is some inconsistency in one of the dying declaration the court has to say that no no there is no prime of the case at this stage the accused is entitled for discharge. Is it the order to be passed by the court or the court has to say that that is not the only inconsistent material to be looked into by the court. What has to see the entire material what has to see the entire investigation material what are the statements recorded by the witnesses what they say in their statements. Suppose one of the witnesses in his statement he said that no no before her death I attended to that lady and she made orally before me some of the declarations that is his version and the statement is recorded by the investigation officer. If these are the material Supreme Court said no no under such circumstances only at that stage we cannot take a decision such a serious matter that accused is entitled for discharge. Court has to look into the entire material therefore what is the principle under section three of the Indian evidence act how the evidence is to be appreciated. Section three of the Indian evidence act what it says section three says that humility effect of the entire material is to be looked into by the court. Humility effect is to be looked into by the court it is not in isolation one though I have seen only this is the portion of the material collected. It should not be in isolation but it should be as a whole if the entire investigation material collected by the investigation officer is appreciated as a whole what is emerging out of that. The court has to take into consideration that what is emerging out of the entire material and then the court can record its finding stating that the this is the material which is collected by the investigation officer looking to this material. We are of the opinion that there is some material to proceed against the second person to conduct the trial. This is how the courts have to they are put into the trouble for appreciation of this material whichever that has been produced before the court that the at the stage of this the the initial stage of considering 227 application for concern. And the courts also lay down certain principles while considering this application under section 227 of the Indian the CRPC is concerned that Supreme Court while dealing with some of the cases they lay down some the guidelines are the factors which are to be taken into consideration. The Supreme Court said if the entire material if the entire prosecution material is produced on its face value without conducting the cross examination whether accepting the entire material as it is if it is not going to make out a case then there is no funding continuing the case against this person is to be discharged from the proceedings at that stage itself. Because the prosecution material whole it is the prima facie it has been considered at the face value even then it is not making out a prima facie case. Then in that case I choose to be discharged from the proceedings is one point that the Supreme Court has laid down and Supreme Court also says that if there are two views possible if two similar views are possible after reading the entire material. One of the view as per the court which is perusing the entire material one possible view is that that there is there is a suspicion only distinguished from grave suspicion. It is only a suspicion but not a grave suspicion then in that case Supreme Court said he is to be discharged from the proceedings because whenever two views are possible. And after considering the entire material court is of the opinion that there is it gives only the suspicion only as a distinguished from grave suspicion. Then he has to be discharged from the proceedings is also one of the guidelines given by the honorable Supreme Court. Another thing what the Supreme Court said is while considering the supplication under section 227 of the CRPC is concerned whatever the material collected by the prosecution the investigation the officer it is to be taken to be true. You please see what the Supreme Court said one of the guideline whatever the investigation material collected by the investigation officer by way of documents and by way of the statements of the witnesses recorded it is to be presumed that it is true at that stage the presumption. Then it is for the accused person if you say that no no these materials are not true I will make out a case from the very material that there is no primary case as against me it is left to him to establish that aspect. When I say this guideline by the honorable Supreme Court that the material collected during investigation is to be presumed that it is true it is equivalently law in the France. What is the law in France as against the accused person the material collected it is treated presumed to be that accused with guilty and the burden is upon the accused person to establish during the course of the trial no no whatever the presumption you have raised that I am guilty is not correct. Of course in our Indian law it is not but only while considering this application in 227 at that initial stage the presumption that the Indian courts are drawing is the presumption is with regard to the guilt of the accused only to that extent. At the initial stage but not the while conducting that main trial is concerned this is one of the another guideline that given by the honorable Supreme Court in the judgment is concerned. Therefore the sum of the guidelines have been laid down by the honorable Supreme Court in many of the cases and the trial courts are guided by those the principles and accordingly the trial court has to consider the matter before it under section 227 of the CRPC then to take a decision in the matter is. And another principle the honorable Supreme Court says and this is particularly by justice select justice select lay down the principle what is the principle in one case he thought she paid harder. If the scales are the scales of panel even. In both the cases. The scales of pan are even. While considering the guilt of the accused during the course of the main trial. During the course of the main trial if the scales of panel are equal or even. Then in that case what is the principle of the presumption the lawsuit has laid down is when they are even after the conclusion of the trial in the main trial then the it is to be considered on the principle of benefit of doubt. The benefit of doubt must be given to the accused person and he be acquitted from the main case this is one possibility. And so far as if the scales of pan are equal or even. While the judge considering the application whether he has to take on a passing order under 227. Or he has to pass an order under 228 for framing of the charges concerned then the law says in that case if it is for the initial stage if the scales of panel are equal. Then the judge has to invoke section 228 for framing the charge but not the under section 227 is one of the another important principle laid down by the honorable Supreme Court. By his logic just is the sale of in the in one particular case. This is the other principle of the guideline for the trial code while considering the application under section 227 of the CRTC is concerned. This is all we discussed about section 227 and whatever the difficulty of the doubts that you are having you please be free to raise the question. Yes. Thank you sir for a stupidest presentation before I think we can move on to the Q&A session. Before that could you please elaborate on difference between section 227 of criminal procedure court to that of section 239 of criminal procedure. Principal is the same. Principal is the same. They discussed with the honorable Supreme Court here 227 and 228. So far as the trial before the session court is case before the session court is concerned. So here if the judge taken a decision that it is not a case for discharge under 227 then he will force the matter for framing of the charge under 228. If the case the cases warrant cases tribal before the magistrate court then the equivalent provisions are 239 and 240. 239 is same. We are the equal principal under 227 that we have discussed now. If the magistrate has taken a decision no no there is a prime of the same material and it is not a case for discharge of the individual person at this stage then he has to take the decision under 240 for framing the charge is concerned. This is the only difference between the two. Yes. Section 245 of the criminal procedure and section 245 of the criminal procedure court would have seen the witness recorded the witness under 245 and post that is there any much difference between after recording the evidence the court when the court tries to discharge accused and then of recording of the. So far as the discharge application is concerned whether recording of evidence is necessary or not I will just deal with that matter. What happens now earlier under the old CRPC 1898 1898 there was no provision similar to section 227 of the CRPC that is regarding the discharge is concerned. What was the earlier the procedure. There is no any the consideration by the discharge application by the session sport. It is only a committal magistrates were there. Committal magistrate sports 1898 CRPC there the relevant provisions are section 207 and 207 capital A 207 and section 207 gay. What section 207 says in case if any such matter comes before the magistrate court then he has to follow the procedure as contemplated under 207 capital A 207 capital A what it says he has to record the evidence. He has to record the oral evidence of both the sides and he has to hear the arguments. Then he has to take a decision whether it is a case where in the charge is to be framed or the accused is going to be discharged. This was the power with the very magistrate itself that is called the committal proceedings. But now the law commission law commission made a recommendation because by following this procedure before the magistrate court lot of delay is going to be caused. The matters are not coming up for the trial itself because only to take a decision he has to record the evidence. Therefore there are two tries in fact there are two tries while taking a decision whether it is a prima facie case or it is a case of discharge even for that also the magistrate is required to record the evidence. Therefore it is a law of the delayed procedure the law commission made the recommendation in its 41st report. In the 41st report when the law commission made the recommendation to the central government then in that case what happens now in the place of old the sections 207 and 207 capital A section 209 of the CRPC it was brought into force. What is 209? 209 also dealing with the committal proceedings but not recording evidence you please see. The magistrates are suppose if the offense is exclusively tribal by the session court if that is the opinion expressed by the magistrate he will not record the evidence. Just like earlier in the old they say the CRPC what the magistrate will do the investigation material will be considered by him. And after considering and hearing the parties he will take a decision and he will pass the order no no this is the case exclusively tribal the offense is tribal exclusively by the court of session. And hereby I commit the case the documents the investigation material and the accuser is also ordered to be appeared before the session scope. This is now the procedure in the new that is the section 209 which is brought in place of the earlier the old court 207 and 207 capital A. And now recording oral evidence by the magistrate courts before committal is not at all necessary. Yes. Thank you sir. Now Mr. Raj has this question. Your evidence collected from accused during investigation is not filed along with the final report filed under section 173 clause 2 of the CRPC. What is the remedy available as relying on the same evidence? No. Even if you say that such a material that has been collected but that will not be taken into consideration at the time of hearing the application and 207 law is very clear as for the Supreme Court. The court has to see only the material that is on the side of the prosecution collected by recording the statement witnesses and also and I will come to that aspect a little. I will say you raised a very good question. You see in one case what happens now? The Supreme Court when the matter was argued in this particular the full bench matter one of the circumstances also argued before the Supreme Court. No the high courts. Whenever this discharge application that has been rejected by the trial court a revision is to be filed before the honorable high court. The honorable high court is considering this revision pension or suppose a written pension under 226 or the the question of the proceedings under 482 of the CRPC. These are the different nature of the proceedings. And in one case the Supreme Court made a reference because the learned counsel appearing for the accused he made an argument. No no in one particular case the Supreme Court itself made the observation that in the exceptional circumstances. If the accused will produce any only impeachable the material of a sterling quality that has to be looked into by the trial court such a direction was given by the honorable high court. And accordingly the honorable the trial court considered the material even produced by the accuser person in that particular case. Then they wanted to take the advantage of this particular decision. Then the Supreme Court said firstly the trial court why he has considered the material produced by the accuser person is not of its own. It is because as the direction given by the honorable high court to the trial court you please consider under the exceptional circumstances. You have to consider that material. Therefore the trial court said as there is a direction from the honorable high court I have considered this material. But the Supreme Court said in those aspects under the before the high court is concerned while dealing with 226 or 482 of the CRPC. That jurisdiction is different because we are concerned in the in the particular case is concerned. Whether the material produced by the accused person can take into consideration while considering the application under 227 of the CRPC. Therefore the Supreme Court said that case becomes final because the high court order giving a direction to the trial court to consider the material produced by the accused. It becomes final because it was not taken before the honorable Supreme Court. That was the observation made by the Supreme Court even with regard to that also. Only on the basis of such one or two decisions by the honorable the affects the higher courts. That under exceptional circumstances that to invoke in section 482 and section 226 under the written jurisdiction if such a direction is given even then we are laying down the proposition that would not become the correct position of law. What we are telling is this is the correct position that only the material collected by the investigation officer on the side of the prosecution that is to be looked into and accused is not permitted to produce the material by way of a defense at that stage. Whatever the material is there that is to be looked into only during the course of the main trial is concerned. This is the law holding the tweet as of now. Thank you. And the next question is what is the scope of section 258 CRPC? Is it discharge? 258 reads power to stop proceedings in certain cases. No, in that case what happens now? It is a summons case. It is a summons case. The framing of the charge will not arise. 258 dropping of the proceedings by the court. Correct. If the court after considering the material if it is of the opinion that there is no such material and the order can be passed for dropping the proceedings. That is altogether different from what we are considering discharge of the accused from the proceedings wherein warrant cases before the magistrate court and warrant cases with trial or warrant case before the sessions go. Passions. Thank you, sir. Any other questions, sir? I'll just check with the Q&A box. Yes, sir. I think that's all, sir. We don't have any more questions. Yes, sir. Thank you very much, sir. So once again, sir, thank you so much for this very informative presentation on my personal behalf, behalf of Mr. Vikas Chhatrat and also beyond law and CRC. Thank you so much. So I am grateful to Trivith Pram who has organized this on behalf of all of us. I am also grateful to all my brothers and sisters who have attended this webinar, the lecture and giving me such an opportunity, I am grateful to the organizers once again. Thank you very much. Vikas Chhatrat is the organizer, sir. He is not there. I am grateful to Vikas also for giving me this opportunity. Please convey my regards to Vikas also, sir. Please, sir. I'll do that. Thank you so much.