Prosecution u/s 277- If grave suspicion exists about involvement of the accused, it is expected to frame charge and put him on trial

Prosecution u/s 277 if grave suspicion exists about involvement of the accused, it is expected to frame charge and put the accused on trial

ABCAUS Case Law Citation:
ABCAUS 2451 (2018) 08 AC

The instant revision petition was directed against the order passed by Additional Chief Metropolitan Magistrate (ACMM) whereby charge had been ordered to be framed against the accused petitioner for wilful attempt to evade tax u/s 276C(1), for false statement in verification u/s 277 read with offences by companies under section 278-B of the Income Tax Act, 1961 (the Act).

On the basis of complaint filed by Income Tax department, accused persons were summoned under section 200 CrPC for the offences u/s 276 C(1), 277 R/w section 278-B of the Act. The complaint had been filed on the allegations that the accused company and its two accused directors have not declared their income for tax willfully and furnished false verification in the returns.

After the appearance of the accused(s), pre-charge evidence was led and witnesses were examined on behalf of Income tax department. Witnesses were not cross examined as accused(s) reserved their right to cross examine the witnesses u/s 246 (4) CrPC.

After hearing submissions of both the sides, the Magistrate came to the conclusion that there was sufficient material available on record to frame charge against all the accused(s) as they had contravened the provisions of Section 276C(1), 277 R/w section 278-B of the Income Tax Act and accordingly charges were required to be framed.

Feeling aggrieved, the present revision had been filed by one of the accused director of the accused company on the grounds that there was no mention in the complaint that petitioner had been in charge of day to day affairs of the accused company or managing the affairs thereof. There was no allegation as to how petitioner was responsible and as per settled legal position merely for the reason of being a director, vicarious liability cannot be deemed.

It was contended that no specific role has been attributed to accused. The Magistrate had passed the order in a mechanical manner and without application of mind. It was prayed that order was liable to be set aside.

The learned Special Judge observed that the law on the question of consideration of charge is well settled. If the criminal court, on consideration of the material submitted with the charge sheet finds that a grave suspicion exists about the involvement of the accused in the crime alleged, it is expected to frame the charge and put the accused on trial. At such initial stage of the trial, the truth, veracity and effect of the evidence which the prosecutor proposes to adduce is not required to be meticulously judged, nor any weight is to be attached to the probable defence of the accused.

It was observed that the Hon’ble Supreme Court has enunciated the following principles:

(1) That the Judge while considering the question of framing the charges under section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out.

(2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be, fully justified in framing a charge and proceeding with the trial.

(3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.

(4) That in exercising his jurisdiction under section 227 of the Code the Judge which under the present Code is a senior and experienced Judge cannot act merely as a Post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.

It was further observed that the Hon’ble Supreme Court had held that at the time of framing charges having regard to section 227 and 228 Cr. PC, the court is required to evaluate the material and documents on record with a view of finding out if the fact emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The court may for this limited purpose to sift the evidence, as it cannot be expected even at the initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or broad probabilities of the case.

It was also observed that the Hon’ble Supreme Court had also held that in view of section 227 refer Section 227 of the CrPC 1973, if two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the Trial Judge will be empowered to discharge the accused and at this stage he is not to see whether the trial will end in conviction or acquittal. Further, the words “not sufficient ground for proceeding against the accused” clearly show that the Judge is not a mere Post Office to frame the charge at the behest of the prosecution, but has to exercise his judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. In assessing this fact, it is not necessary for the Court to enter into the pros and cons of the matter or into a weighing and balancing of evidence and probabilities which is really the function of the Court, after the trial starts.

It was further observed that the scope of Section 227 of the Code on the issue of strong suspicion against the accused was considered by Apex Court and their Lordships observed that it was observed that if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is a strong suspicion which leads the Court to think that there is ground for 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 presumption of the guilt of the accused which is to be drawn at the initial stage is not in the sense of the law governing the trial of criminal cases in France where the accused is presumed to be guilty unless the contrary is proved. But it is only for the purpose of deciding prima facie whether the Court should proceed with the trial or not. If the evidence which the Prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial.

It was held that whereas strong suspicion may not take the place of the proof at the trial stage, yet it may be sufficient for the satisfaction of the Trial Judge in order to frame a charge against the accused.

The learned Special Judge observed that in view of specific averments in the complaint and statements of witnesses a clear prima-facie case was made out against the petitioner / accused for having committed the offences u/s 276 C(1), 277 R/w section 278-B of the Income Tax Act.

The Special Judge opined that it was evident from the record that accused petitioner being the director of the accused company signed and verified the income tax returns declaring loss. From the record itself, the role of the accused director was prima-facie clear and at this stage no further evidence was required.

The Special Judge opined that there was no illegality or infirmity in the order of Magistrate and therefore, no interference was called for. The presumption available u/s 278 (C) Income Tax Act had also been taken into consideration while ordering framing of charge. The defence of petitioner / accused can be appreciated only at the stage of trial.

Thus, the Special Judge opined that in view of settled legal position that charge is to be framed even on the basis of strong suspicion, the grounds taken by petitioner in the revision had no merits or substance.

The revision petition was accordingly dismissed.

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