1999 JTR(SC) 38
2000 10 SCC 68 ; 2000 SCC(Cri) 696 ; 2000 KHC 1577
SUPREME COURT OF INDIA
B.N.Kirpal : S.R.Babu
Rajiv Gupta
Versus
State Of H.P.
Case No. : 42 , 43 of 1999
Date of Decision : 1/15/99
In criminal cases punishable by up to three years' imprisonment, if the trial (commencing with the framing of charges under Section 240 CrPC for police-report warrant cases) does not start within two years of pendency, the accused is entitled to be discharged or acquitted.
Act
Referred
:CONSTITUTION OF INDIA
: Art.21
(A) Indian Penal Code - Section 411 - Code of Criminal Procedure, 1973 - Section 240 - Discharge of accused - Trial not commenced within stipulated period - Where cases pending in criminal courts for offences punishable with imprisonment up to three years have been pending for more than two years and trials have still not commenced, the criminal court shall discharge or acquit the accused and close such cases (Para 5) - In trials of warrant cases instituted upon police reports, trials are treated to have commenced when charges are framed under Section 240 of the Code of Criminal Procedure, 1973 (Para 6).
(B) Commencement of trial - In warrant cases instituted on police reports, the framing of charges under Section 240 CrPC marks the commencement of the trial. If charges are not framed within two years for an offence punishable with up to three years imprisonment, the accused is entitled to discharge (Para 7).
Facts of the case:
Appellants were charged under Section 411 IPC and produced before the court. After more than three years of pendency, the trial had not commenced as no charges had been framed. The trial court discharged the appellants, but this order was subsequently set aside by the appellate court on the grounds that the trial had not yet commenced, and therefore the appellants were not entitled to discharge.
Findings of Court:
The appellate court erred in upsetting the trial court's decision. Since the charges under Section 240 CrPC were not framed within two years of the filing of the challan and appearance of the accused, the trial is deemed not to have commenced, entitling the accused to discharge.
Issues: Whether the accused are entitled to be discharged when the trial for an offence punishable with imprisonment up to three years has not commenced within two years of pendency.
Ratio Decidendi: For offences punishable with imprisonment up to three years, if the trial—defined in warrant cases instituted on police reports as the framing of charges under Section 240 CrPC—does not commence within two years, the court is required to discharge or acquit the accused.
Result: Appeals allowed.
(B) Commencement of trial - In warrant cases instituted on police reports, the framing of charges under Section 240 CrPC marks the commencement of the trial. If charges are not framed within two years for an offence punishable with up to three years imprisonment, the accused is entitled to discharge (Para 7).
Facts of the case:
Appellants were charged under Section 411 IPC and produced before the court. After more than three years of pendency, the trial had not commenced as no charges had been framed. The trial court discharged the appellants, but this order was subsequently set aside by the appellate court on the grounds that the trial had not yet commenced, and therefore the appellants were not entitled to discharge.
Findings of Court:
The appellate court erred in upsetting the trial court's decision. Since the charges under Section 240 CrPC were not framed within two years of the filing of the challan and appearance of the accused, the trial is deemed not to have commenced, entitling the accused to discharge.
Issues: Whether the accused are entitled to be discharged when the trial for an offence punishable with imprisonment up to three years has not commenced within two years of pendency.
Ratio Decidendi: For offences punishable with imprisonment up to three years, if the trial—defined in warrant cases instituted on police reports as the framing of charges under Section 240 CrPC—does not commence within two years, the court is required to discharge or acquit the accused.
Result: Appeals allowed.
Discharge - Established that if a trial for an offence punishable by up to three years of imprisonment has been pending for more than two years without commencing, the accused should be discharged or acquitted.
(1) SPECIAL leave granted.
(2) IN the instant case, the police had filed a challan against the appellants under Section 411 IPC. They were produced before the Court on 3-1-1994.
(3) ACCORDING to the appellants as the trial had not commenced for more than three years, they filed an application before the Judicial Magistrate, 1st Class where relying upon the decision of this Court in the case of Common Cause v. Union of India it was contended that because more than three years have elapsed and the trial had not commenced, therefore, the appellants should be discharged. Relying upon this decision, the Judicial Magistrate vide order dated 15-1-1997 held that the pendency of the case was for more than three years and it did not fall under any of the exceptions contained in the judgment of this Court and, therefore, the appellants were entitled to be discharged. Order to this effect was accordingly passed.
(4) THE High Court in revision referred to clarification given by this Court in the case of Common Cause v. Union of India and then held that as no charge had been framed by the Magistrate, therefore, the trial will not be deemed to have commenced and the appellants were not entitled to be discharged.
(5) IN our opinion, the High Court has fallen in error in upsetting the decision of the Magistrate. In the main case of Common Cause this Court held, inter alia, as follows:
"WHERE the cases pending in criminal courts under IPC or any other law for the time being in force are punishable with imprisonment up to three years, with or without fine, and if such pendency is for more than two years and if in such cases trials have still not commenced, the criminal court shall discharge or acquit the accused, as the case may be, and close such cases."
(6) IN the clarificatory judgment Common Cause it was, inter alia, observed by this Court as follows:
"IN cases of trials of warrant cases by Magistrates if the cases are instituted upon police reports the trials shall be treated to have commenced when charges are framed under Section 240 of the Code of Criminal Procedure, 1973 while in trials of warrant cases by Magistrates when cases are instituted otherwise than on police report such trials shall be treated to have commenced when charges are framed against the accused concerned under Section 246 of the Code of Criminal Procedure, 1973."
(7) READING the two together, it is clear that if the trial of a case for an offence which is punishable with an imprisonment up to three years has been pending for more than two years and if the trial had not commenced, then the criminal court is required to discharge and acquit the accused. In the clarificatory order, it is provided that in the warrant case like the present, the trial will be regarded as having commenced when charges are framed under Section 240 CrPC. This means that if within a period of two years charges are framed, then an accused would not be entitled to take the benefit of the above-quoted 1996 judgment and ask for his discharge. In the present case, admittedly, for a period of more than three years after the filing of the challan by the police and the appearance of the appellants in court, the charge under Section 240 CrPC has not been framed. This means that the appellants trial had not commenced within a period of two years and, therefore, the Magistrate was right in discharging the appellants.
(8) WE, accordingly, allow these appeals, set aside the judgment of the High Court and restore the order of the Magistrate.