2022 LiveLaw (SC) 1019

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION
M.R. SHAH; J., C.T. RAVIKUMAR; J.
DECEMBER 12, 2022
CRIMINAL APPEAL NO. OF 2022 (Arising from SLP(Criminal) No. 9897/2022)
Chandi Puliya versus The State of West Bengal
Code of Criminal Procedure, 1973; Sections 227, 228, 300 - It is at the stage of
discharge that the court can consider the application under Section 300 Cr.P.C -
Once the court rejects the discharge application, it would proceed to framing of
charge under Section 228 Cr.P.C. (Para 7-8)
Code of Criminal Procedure, 1973; Sections 227, 228 - The stage of discharge under
Section 227 Cr.P.C. is a stage prior to framing of the charge (under Section 228
Cr.P.C.) - 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 doing so. As per Section 228 Cr.P.C. only thereafter and if, after such
consideration and hearing as aforesaid, the Judge is of the opinion that there is
ground for presuming that the accused has committed an offence, the trial Court
shall frame the charge. (Para 7)
(Arising out of impugned final judgment and order dated 27-06-2022 in CRR No. 1328/2022 passed by the High Court at Calcutta)

For Petitioner(s) Ms. Suruchi Suri, Adv. Mr. Chanchal Kumar Ganguli, AOR
For Respondent(s) Ms. Astha Sharma, AOR
JUDGMENT
M.R. SHAH, J.
1. Leave granted.
2. Feeling aggrieved and dissatisfied with the impugned judgment and order dated
27.06.2022 passed by the High Court at Calcutta in Revision Application No. 1328/2022,
by which the High Court has dismissed the said revision application preferred by the
appellant – accused and has confirmed the order passed by the learned Special Court,
West Bengal (MP & MLA case), Bidharnagar dated 4.3.2022 passed in Special Case No.
120 of 2018, the appellant-accused has preferred the present appeal.
3. The facts leading to the present appeal in nutshell are as under:
That the appellant herein was tried earlier for the offences punishable under
Sections 148, 149, 448, 364 & 506 of the Indian Penal Code (IPC) in FIR No. 61/2002
dated 26.09.2002 of Keshpur Police Station. The appellant came to be acquitted by the
learned Sessions Court vide judgment and order of acquittal dated 21.05.2010. That
thereafter on 6.6.2011, after a period of nine years from the date of registration of the first
FIR and one year from the date of acquittal, a second FIR came to be lodged against the
appellant and others alleging inter alia that the appellant and other co-accused had caused
the death of Ajay Acharya, i.e., father of the first informant, the same person that they had
alleged to have kidnapped and were acquitted of.

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3.1 It appears that the second FIR was registered on the basis of the discovery of the
skeleton and identification of the clothes and teeth of the skeleton, by the son of the
deceased, 11 years after the alleged incident.
3.2 The appellant-accused approached the High Court seeking quashing of the entire
criminal proceedings emanating out of the second FIR vide order dated 29.04.2016. While
dismissing the said proceedings, the High Court granted liberty to take up all the points of
law at the time of framing of charge. While dismissing the special leave petitions, this Court
granted liberty to the accused – appellant to avail the remedy at the stage of framing of
the charge. Accordingly, a discharge application under Section 227 r/w Section 300(1)
Cr.P.C. was filed by the appellant before the learned trial Court. The learned trial Court
dismissed the said application by observing that such an objection can be raised at the
stage of framing of charge and not discharge. The order passed by the learned trial Court
has been confirmed by the High Court, by the impugned judgment and order. Hence, the
present appeal.
4. It is vehemently submitted by Shri Siddhartha Dave, learned senior counsel
appearing on behalf of the appellant – accused that the courts below have erred in not
considering the application for discharge filed by the appellant at the stage of discharge.
It is submitted that the stage of discharge under Section 227 Cr.P.C. is a stage prior to
charge and it is at this stage alone that the court can consider an application under Section
300 Cr.P.C. It is submitted that once the court rejects the discharge application, it would
proceed to framing of charge under Section 228 Cr.P.C. and the only question before it
would be as to the nature of the offence, and not that the appellant has not committed an
offence, or that he cannot be tried on account of the bar under Section 300 Cr.P.C.
4.1 It is further submitted that the courts below have failed to appreciate that the present
proceedings arise from the discharge proceedings and that the stage of discharge under
Section 227 Cr.P.C. precedes the stage of framing of charge under Section 228 Cr.P.C.
It is submitted that as observed and held by this Court in the case of Ratilal Bhanji
Mithani v. State of Maharashtra, (1979) 2 SCC 179, once the charges are framed, the
accused is disentitled from praying for discharge.
4.2 It is further submitted that it is true that the judgment of acquittal dated 21.05.2010
has been challenged by the State before the High Court, but the same has not been
admitted by the High Court.
4.3 It is further submitted that the appellant has already been acquitted of the offence
of kidnapping. On the basis of the same facts, the appellant is now being sought to be
prosecuted for the offence under Section 302 IPC, without invoking Section 346 IPC, only
to circumvent the bar under Section 300(1) Cr.P.C. It is submitted that the bar under
Section 300(1) Cr.P.C. also applies to prosecution for same facts for any other offence for
which a different charge from the one made against the accused might have been made
under sub-section (1) of Section 221, or for which the accused might have been convicted
under sub-section (2) thereof.
4.4 It is further submitted that in the case of State v. Nalini, (1999) 5 SCC 253, this
Court while discussing the principle of autrefois convict and autrefois acquit held that
Section 300 Cr.P.C. has widened the protective wings by debarring a second trial against
the same accused on the same facts even for a different offence.
4.5 Making above submissions and relying upon the aforesaid decisions, it is prayed to
allow the present appeal and discharge the appellant from the subsequent second FIR
No. 36/2011, in terms of Section 300(1) Cr.P.C.
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5. While opposing the present appeal, Shri Sunil Fernandes, learned counsel
appearing on behalf of the respondent – State has vehemently submitted that as such the
order of acquittal in relation to first FIR is the subject matter of appeal before the High
Court. It is submitted that even otherwise in the first FIR the appellant and other co-
accused were tried for the offences under Sections 148, 149, 448, 364 & 506 IPC in FIR
No. 61/2002. It is submitted that at the relevant time, the dead body of the deceased was
not found. It is submitted that the appellant and other coaccused were tried and as such
acquitted for the offence of kidnapping etc. and not for the offence under Section 302 IPC,
as now to be tried pursuant to the subsequent FIR, which was lodged after the discovery
of the skeleton and identification of the clothes and teeth of the skeleton. It is submitted
that therefore, as such, Section 300 Cr.P.C. shall not be attracted at all.
5.1 It is further submitted that earlier the application submitted by the appellant under
Section 482 Cr.P.C. to quash the subsequent criminal proceedings emanating out of the
second FIR came to be dismissed by the High Court and the appellant was relegated to
avail the remedy at the stage of framing of the charge. It is submitted that the very
plea/defence under Section 300 Cr.P.C. was pressed into service but the High Court
refused to quash the criminal proceedings arising of the subsequent second FIR. It is
submitted that thereafter when the accused had filed the discharge application, the
learned trial Court rejected the said application by observing that the appellant-accused is
entitled to raise all the points as mentioned in the petition under Section 300(1) Cr.P.C. at
the time of framing of charge. It is submitted that as such the discharge application under
Section 227 Cr.P.C. is yet to be considered by the learned trial Court.
5.2 Making the above submissions, it is prayed to dismiss the present appeal.
6. We have heard learned counsel for the respective parties at length.
At the outset, it is required to be noted that pursuant to the liberty reserved by the
High Court while dismissing the petition under Section 482 Cr.P.C., the appellant accused
filed an application for discharge under Section 227 r/w Section 300(1) Cr.P.C. Out of the
said application, application under Section 300(1) Cr.P.C. has been dismissed by the
learned trial Court by observing that the appellantaccused shall be entitled to raise all the
points including the applicability of Section 300(1) Cr.P.C. at the time of hearing on framing
of charge. The application under Section 227 Cr.P.C. filed by the accused is yet to be
considered by the learned trial Court. At this stage, Section 227 Cr.P.C. is required to be
referred to, which reads as under:
“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.”
7. On a fair reading of Section 227 Cr.P.C, 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 doing so. As per Section 228 Cr.P.C. only thereafter and if, after such
consideration and hearing as aforesaid, the Judge is of the opinion that there is ground
for presuming that the accused has committed an offence, the trial Court shall frame the
charge. Therefore, as rightly submitted by Shri Siddhartha Dave, learned senior counsel
appearing on behalf of the appellant-accused that the stage of discharge under Section
227 Cr.P.C. is a stage prior to framing of the charge (under Section 228 Cr.P.C.) and it is
at that stage alone that the court can consider the application under Section 300 Cr.P.C.
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Once the court rejects the discharge application, it would proceed to framing of charge
under Section 228 Cr.P.C.
8. Under the circumstances, the learned trial Court has erred in not considering the
application under Section 300(1) Cr.P.C. at the time of framing of charge and/or prior to
framing of the charge. As observed hereinabove, the trial Court had observed that the
appellant-accused shall be entitled to raise all points as mentioned in his application under
Section 300(1) Cr.P.C. at the time of hearing on framing of charge. However, as observed
hereinabove, such exercise was required to be done at a stage prior to framing of charge
and if ultimately the court comes to the conclusion overruling the objection of Section
300(1) Cr.P.C. and on facts satisfies then it may frame the charge as provided under
Section 228 Cr.P.C. The High Court has not at all appreciated and/or considered the
aforesaid aspect. Therefore, the matter is required to be remanded to the learned trial
Court to consider the plea of the accused on applicability of Section 300(1) Cr.P.C. at the
stage of discharge under Section 227 Cr.P.C., which is a stage prior to framing of the
charge under Section 228 Cr.P.C.
9. Now so far as the prayer on behalf of the appellant to discharge the accused in view
of the bar under Section 300(1) Cr.P.C. is concerned, the same may not be granted at this
stage in view of the earlier order passed by the High Court dismissing the petition under
Section 482 Cr.P.C. to quash the criminal proceedings which were sought to be quashed
on the very ground and the accused was relegated to avail remedy at the time of
discharge. It is to be noted that the earlier order passed by the High Court had attained
finality and even thereafter the appellant-accused had filed the discharge application
under Section 227 r/w Section 300(1) Cr.P.C.
10. In view of the above and for the reasons stated above, the impugned judgment and
order passed by the High Court is hereby quashed and set aside. The matter is remitted
to the learned trial Court to consider the application under Section 300(1) Cr.P.C. filed by
the appellant – accused along with the application for discharge under Section 227
Cr.P.C., which is a stage prior to framing of the charge and thereafter to pass appropriate
orders on framing of the charge under Section 228 Cr.P.C., in case the objection/defence
of the accused under Section 300(1) is overruled and the trial Court is satisfied that there
is sufficient grounds for framing of charge against the accused. The aforesaid exercise
shall be completed within a period of six weeks from the date of receipt of the present
order. Needless to say, that the learned trial Court shall decide the said application in
accordance with law and on its own merits, without being influenced by any of the
observations made by the High Court in the impugned order or by this Court in the present
order.
11. The present appeal stands disposed of with the aforesaid observations.

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