The court should first consider the other materials and evidence against the accused excluding the confessional statement of the co-accused: Gauhati High Court

In the first instance, the court should consider the other material and evidence against the accused, excluding the co-confessional accused’s statement and see if the conviction could be founded without such a confession and if the other recorded material is independent of belief, the judge may in such case call for aid to assure other evidence by making a confession. The judgment was passed by the High Court of Gauhati in the case of  Manita Borah v. State of Assam & Ors [Crl.Pet./19/2020] by Single Bench consisting of Hon’ble Justice Mir Alfaz Ali.

The facts of the case are that the co-accused (Shanti Kumari Das), who happens to be a supervisor, ICDCS, came to the house of an Anganwadi worker, where she collected Rs. 3,000/ each from 22 numbers with a view to paying the money to the present petitioner (Monita Borah), who was the CPDO at the relevant time. The co-accused collected the entire amount threatening the Anganwadi workers, that if they do not pay the amount, their service may be hampered. The police apprehended her and recovered Rs. 50,500/ from her. The FIR was on the basis of which, police registered the case u/s of 384/34 IPC read with Section 7 of the P.C. Act.

Learned counsel for the petitioner submits that there was no material on record to justify the framing of charge against the present petitioner, in as much as, per accusation and materials brought on record, it was Shanti Kumari Das, who collected money from the Anganwadi workers by threatening them, that if the money is not paid, their service may be hampered. The only allegation in the FIR was that she collected the money on the pretext of paying the same to the petitioner. Besides, this allegation, no other evidence could be collected during the investigation against the present petitioner, and as such, learned trial court ought not to have framed charge against the petitioner in absence of any material.

Learned counsel for the respondent argued that while framing charge, the court is not required to assess the probative value of the materials on record and the charge can be framed even on the basis of strong suspicion.

The learned court while replying to the contention referred to the judgment Union of India Vs. Prafulla Kumar Samal, “while considering the scope of Section 227 of the Cr PC, the Apex Court observed that in exercising jurisdiction u/s 227 of the Code of Criminal Procedure, the 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, as if, it was conducting a trial. The Apex Court also observed that while considering the question of framing of charge u/s 227 CrPC, the court 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.”

While dismissing the petition the court observed that “we do not find any cogent material, which can be relied upon even for taking a presumptive opinion as to the probability of the commission of the offence by the present petitioner, rather, entire materials and evidence brought on record appears to be against the co-accused Shanti Kumari Das, who demanded and collected money from the Anganwadi Workers under threat of causing harm to their job. Framing charge mechanically in absence of any legal evidence or material shall unnecessary put an innocent person to trial and as such court should take a pragmatic view while drawing a presumptive opinion as to the ground for framing charge.”

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