R.S. MISHRAversusSTATE OF ORISSA & ORS.

                         [2011] 2 S.C.R. 338

A                           R.S. MISHRA
                                  V.
                    STATE OF ORISSA & ORS.
                (Criminal Appeal No. 232 of 2005)
                        FEBRUARY 1, 2011
B
           [J.M. PANCHAL AND H.L. GOKHALE, JJ.]

        Code of Criminal Procedure, 1973:

c       ss. 227 and 228 - Role of the Judge at the stage of
  framing of charge - Inter-connection between ss.227 and 228
  - Held: When the charge under a particular section is
  dropped or diluted, (although the accused is not discharged),
  some minimum reasons in nutshell are expected to be
0 recorded disclosing the consideration of the material on record
  - On the analogy of a discharge order, the Judge must give
  his reasons at/east in a nutshell, if he is dropping or diluting
  any charge, particularly a serious one - It is also necessary
  for the reason that the order should inform the prosecution as
E to what went wrong with the investigation - Besides, if the
  matter is carried to the higher Court, it will be able to know as
  to why a charge was dropped or diluted.

       s.228 - Dereliction of duty by Sessions Judge in framing
  of correct charge against accused in a criminal case involving
F death of a young person - Judicial order passed by appellant-
  Sessions Judge diluting the charge against the accused -
  Suo-moto Criminal revision pursuant to note by the Inspecting
  Judge - Revisional Court made observations against the
  appellant for not framing charge under s. 302 /PC against the
G accused and also made suggestion to High Court
  Administration to take corrective steps with respect to the
  appellant - High Court Administration examined the record
  of the appellant and denied him selection grade - Challenge
  to observations/suggestions of Revisional Court which led to
H                                338
       R.S. MISHRA v. STATE OF ORISSA & ORS.                    339

  the denial of selection grade - Held: Not tenable - A Judge           A
  is expected to look into the material placed before him and if
  he is of the view that no case is made out for framing of a
  charge, his order ought to be clear and self-explanatory with
  respect to the material placed before him - In the present
  case, all that the appellant stated in his judicial order was, that   B
  on consideration of the material available in the case diary,
  he found no sufficient material to frame the charge under
  s.302 -/PC - He also did not state in his order as to why he
  was of the opinion that the material available in the case diary
  was insufficient - Appellant did not even refer to the statement      c
  of the injured eye witness, and the supporting medical papers
  on record - Such a bald order raises a serious doubt about
  the bona fides of the decision rendered - It was not a case of
  grave and sudden provocation, thus, there was a prima facie
  case to frame charge under s.302 /PC - The reason given
                                                                        0
  for dropping the charge under s.302 was totally inadequate
  and untenable, and showed non-application of mind by the
  appellant to the statements in the charge-sheet and the
  medical record - No explanation was given as to why a
  charge under s.304 /PC was preferred to one under s.302 IPC
  - It cannot be said that the appellant did not have requisite         E
  experience to pass a correct legal order under s.228 CrPC -
  That apart, the impugned order in Revision contained only a
  correctional suggestion to the High Court Administration
 ·which the Administration accepted - It was not a case of
  making any adverse or disparaging remarks - The appellant             F
' was responsible for unjustified dilution of the charge and,
  therefore, thorough checking of his service record was
  necessary which is, what was directed in the impugned order
  of the Revisional Court - Penal Code, 1860 - ss. 302 and
  304.                                                                  G
     The appellant is a· retired Additional Sessions Judge
 of the State of Orissa. He challenged the judgment
 rendered by a Single Judge of the Orissa High Court in
 suo-moto Criminal Revision, arising out of Session Trial H
    340      SUPREME COURT REPORTS           [2011) 2 S.C.R.

A Case, to the extent the Judge made certain observations
  against the appellant who had decided that Sessions
  case. These 'remarks were made on account of the
  appellant not framing the charge under Section 302 IPC
  against the accused in that case. The Single Judge held
B that the appellant had committed a blunder in not framing
  the charge under Section 302 IPC and made certain
  observations about the manner in which the appellant
  had passed the order, and also gave some correctional
  suggestions about the appellant. The Single Judge,
c however, did not deem it fit to be a fit case for ordering
  retrial under Section 300(2) CrPC on the ground that the
  accused had already served the sentence of five years
  rigorous imprisonment. Subsequent to the observations
  of the Revisional Court, the High Court Administration
  examined the record of the appellant and denied him the
0
  Selection grade. The appella"t's representation in that
  behalf was rejected by the High Court A~inistration.
  Aggrieved, the appellant took Voluntary Retirement, and
  subsequently filed the present appeal.

E        The appellant challenged the observations of the
    Revisional Court which led to denial of his selection
    grade stating that the judicial order passed by him may
    be erroneous, but merely for that reason, it was not
    proper for the Inspecting Judge to direct that a suo-moto
F   Revision be filed against the same; and that in any case,
    it was wrong on the part of the Single Judge who heard
    the suo-moto Revision, to make the observations which
    he made in his order and which caused incalculable
    harm to the career of the appellant.
G
          Dismissing the appeal, the Court
        HELD:1.1. The provision concerning the framing of
    a charge is to be found in Section 228 of Cr.P.C. This
    Section is however, connected with the previous section,
H
     R.S. MISHRA\i. STATE OF ORISSA & ORS.             341

i.e. Section 227 which is concerning 'Discharge'. From A
Section 227 it is clear that while discharging an accused,
the Judge concerned has to consider the record of the
case and the documents placed therewith, and if he is so
convinced after hearing both the parties that there is no
sufficient ground to proceed against the accused, he B
shall discharge the accused, but he has to record his
reasons for doing the same. Section 228 which deals
with framing of the charge, begins with the words "If after
such consideration". Thus, these words in Section 228
refer to the 'consideration' under Section 227 which has c
to be after taking into account the record of the case and
the documents submitted therewith. These words provide
an inter-connection between Sections 227 and 228. That
being so, while Section 227 provides for recording the
reasons for discharging an accused, although it is not so
                                                              0
specifically stated in Secti.on 228, it can certainly be said
that when the charge under a particular section is
dropped or diluted, (although the accused is not
discharged), some minimum reasons in nutshell are
expected to be recorded disclosing the consideration of ·
the materi<11 on record. This is because the charge is to E
be framed 'after such consideration' and the~efore, that
consideration must be reflected in the order. [Paras 17,
18] [357-F-G; 358-G-H; 359-A-C]
    1.2. A discharge order is passed on an application by F
the accused on whici1 ~he accused and the prosecution
are heard. At the stage of discharging an accused or
framing of the charge, the victim does not participate in
the proceeding. While framing the charge, the rights of
the victim are also to be taken care of as also that of the G
accused. That responsibility lies on the shoulders of the
Judge. Therefore, on the analogy of a discharge order,
the Judge must give his reasons. atleast in a nutshell, if
he is dropping or diluting any charge, particularly a
                                                             H
    342     SUPREME COURT REPORTS               [2011] 2 S.C.R.

A serious one as in the present case. It is also necessary
  for the reason that the order should inform the
  prosecution as to what went wrong with . the
  investigation. Besides, if the matter is carried to the higher
  Court, it will be able to know as to why a charge was
B dropped or diluted. [Para 19] [359-D-F]

         1.3. At the initial stage of the framing of a charge, if
    there is a strong suspicion/evidence which leads the
    Court to think that there is ground for presuming that the
C   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. Further, at the stage of
    the framing of the charge, th~ Judge is expected to sift
    the evidence for the limited purpose to decide if the facts
    emerging from the record and documents constitute the
D   offence with which the accused is charged. This must be
    reflected in the order of the judge. Thus it cannot be
    disputed that in this process the minimum that is
    expected from the Judge is to look into the material
    placed before him and if he is of the view that no case
E   was made out for framing of a charge, the order ought
    to be clear and self-explanatory with respect to the
    material placed before him. In the present case, all that
    the appellant stated in his judicial order was, that on
    consideration of the material available in the case diary,
F   he had found that there was no sufficient material to
    frame the charge under Section 302 of IPC. This is
    nothing but a bald statement and was clearly against the
    statement of the injured eye witness, and supporting
    medical papers on record. The appellant has not even
G   referred to the same. He has also not stated in his order
    as to why he was of the opinion that the material available
    in the case diary was insufficient. Such a bald order
    raises a serious doubt about the bona tides of the
    decision rendered by the Judge concerned. A young
H
      R.S. MISHRA v. STATE OF ORISSA & ORS.             343

 person had been killed. It was not a case of grave and A
 sudden provocation. The material on record showed that
 there was an injured eye witness and there was the
 supporting medical report. The material on record could
 not be said to be self-contradictory or intrinsically
 unreliable. Thus, there was a prima facie case to proceed. B
 to frame the charge under Section 302 IPC. The reason
 given for dropping the charge under Section 302 was ·
 totally inadequate and untenable, and showed a non-
 application of mind by the appellant to the statements in
 the charge-sheet and the medical record. The order does c
 not explain as to why a charge under Section 304 was
 being preferred to one under Section 302 IPC. In fact,
 since the material on record revealed a higher offence, it
 was expected of the appellant to frame the charge for
 more grievous offence and not to dilute the same. [Paras
                                                            0
 20, 21 and 22] [359-G-H; 360-G-H; 361-A-G]

       1.4. The impugne~ order of the High Court deciding
  Revision notes that theI
                            appellant had been functioning
  in the rank of the District Judge from August 1991
  onwards, i.e. for nearly 5 years prior to his judicial order E
  and further states that a· Judicial Officer, before being
  posted as an Additional Session Judge, gets experience
  of taking the sessions cases as Assistant Session Judge.
  It cannot, therefore, be said that the appellant did not
_ have requisite experienc1:: to pass a correct legal order F
  under Section 228 of Cr.P.C. That apart, all that the
  impugned order in Revision did was to suggest to the
  High Court Administration, that if the appellant was not
  yet confirmed, his probation should wait and if he was
  already confirmed, his performance be verified before G
  giving him the higher scale. Since the appellant, was
  already confirmed in service, all that the High Court did
  on the administrative side was to check his record, and
  thereafter to deny him the selection grade. The above
  observation in the impugned order in Revision was a H
                                                            ~   ·-   ..

    344     SUPREME COURT REPORTS              [2011) 2 S.C.R.

A suggestion to the Administration of the High Court. It was·
  not a case of making any adverse or disparaging
  remarks. Havi11g noted that the appellant had failed in
  discharging his duty in framing the correct charge, and·
  having also noted that his record was not good, the High
B Court could not have granted him the selection grade.
  The selection grade is not to be conferred as a matter of
  right. The record of the concerned Judge has to seen,
  and that having been done in the present case (in
  pursuance to the observations of the High Court), and
c having noted the serious deficiencies, the High Court had
  denied the selection grade to the appellant. The Impugned
  order contained nothing but a correctional suggestion to
  the High Court Administration which the Administration
  has accepted. [Para 24] [362-C-H; 363-A]

D        1.5. It is only because of the note made by inspecting
    Judge that the cursory order passed by the appellant in
    the Sessions case diluting the charge against the
    accused came to the notice of the High Court
    Administration. By the time the suo-moto Revision was
E   decided, the accused had already undergone the
    punishment of rigorous imprisonment of 5 years and,
    therefore, the Revisional Court did not deem it fit to
    reopen the case. The appellant cannot take advantage of
    this part of the judgment of the Revisional Court, to
F   challenge the observations of the Revisional Judge
    making a suggestion to the High Court to scrutinize
    appellant's record for the dereliction of duty on his part.
    The appellant was responsible for an unjustified dilution
    of the charge and, therefore, thorough checking of his
G   service record was necessary which is,1 what was directed
    in the impugned order of the Revisional Court/High Court.
    There is no reason to interfere in the said order making
    certain observations and suggestions which were
    necessary in the facts and circumstances of the case.
H   [Paras 25, 26] [363-B-F]
     R.S. MISHRA v. STATE OF ORISSA & ORS.                   345 1


     In the matter of 'K' A Judicial Officer, 2001 (3) SCC 54; A
V.K. Jain v. High Court of Delhi througi/i Registrar General
and Others, 2008 (17) SCC 538 and Prakash Singh Teji v.
Northern India Goods Transport Company Private Limited and
Anr, 2009 (12) SCC 577 - distinguished.
                                                               B
     State of Sihar v. Ramesh Singh AIR 1977 SC 2018;
Nirmaljit Singh Hoon v. State of West Bengal 1973 (3) SCC
753; Chandra Deo Singh v. Prakash Chandra Bose AIR1963
SC 1430; Niranjan Singh v. Jitendra Bhimraj 1990 (4) SCC
76 - relied on.
                                                                     c
                     Case Law Reference:

    2001 (3) sec 54           distinguished        Para 12

    2008 (17) sec 538         distinguished        Para 13
                                                                     D
    2009 (12) sec 577         distinguished        Para 14

    AIR 1977 SC 2018          relied on            Para 20
                                                         1
    1973 (3) sec 753          relied on            Para 20

    AIR 1963 SC 1430          relied on            Para 20           E

    1990 (4) sec 76           relied on   1        Para 20

    CRIMINAL AP PELLATE JURISDICTION : Criminal Appeal
No. 232 of 2005.                                   ·
                                                                     F
     From the Judgment & Order dated 28.10.2002 of the High
Court of Orissa in Suo Motu Criminal Revision Petition No. 367
of 1997.

    Uday Gupta, D.K. Mishra, Manoj Swarup for the Appellant.         G

    Suresh Chandra Tripathy, Janaranjan Das, Swetaketu
Mishra for the Respondents.

    The Judgment of the Court was delivered by
                                                                     H
    346      SUPREME COURT REPORTS                  [2011] 2 S.C.R.


A      GOKHALE J. 1. The appellant in this appeal is a retired
  Additional Sessions Judge of the State of Orissa. In this appeal
  by Special Leave, he seeks to challenge the judgment and
  order dated 20.10.2002, rendered by a learned Judge of the
  Orissa High Court in suo-moto Criminal Revision No. 367 of
B 1997, arising out of Session Trial Case No. 187/55 of 1995,
  to the extent the learned Judge has made certain observations
  against the appellant who had decided that session case.
  These remarks were made on account of the appellant not
  framing the charge under Section 302 of the Indian Penal Code
c (IPC) against the accused in that case, when the material on
  record warranted framing of that charge.

          2. The facts leading to this appeal are as follows:

          Appellant not framing the charge under Section 302
D         IPC, when warranted.

       The appellant joined the Orissa judicial service in
  November 1971. In August 1991, he was promoted to the cadre
  of District Judges. During the period of his service, the
E appellant was transferred from place to place, and at the
  relevant time in March 1996, was posted as the Additional
  District and Sessions Judge, Rourkela, when the above referred
  case bearing S.T. No. 187/55 of 1995 was assigned to him ..

        3. The case of the prosecution in that session case was
F as follows. There was a land dispute between one Megha Tirkey
  (the accused) and one Samara Tirkey, who was alleged to have
  been murdered by the accused. Jayaram Tirkey is the younger
  brother of accused. On 25.06.1995, at about 11 :00 a.m.,
  Samara Tirkey (the deceased) is said to have abused Smt.
G Mangi the wife of Jayaram Tirkey (PW-1) on account of the
  alleged encroachment of Samara's land by the uncle of
  Jayaram, one Shri Daharu Kujur. On the next day, i.e. on
  26.6.1995, Jayaram TirkE;;y alongwith his brother Megha Tirkey,
  the accused went to the house of Samara Tirkey, the deceased.
H Initially, Samara Tirkey was not available and Jayaram and
          R.S. MISHRA v. STATE OF ORISSA & ORS.                347
                    [H.L. GOKHALE, J.]
     Megha Tirkey enquired about his whereabouts with his wife A
     Hauri (PW-3). In the meanwhile, Samara Tirkey reached over
     there. Jayaram Tirkey asked Samara as to why he had scolded
     Jayaram's wife in his absence. Samara Tirkey is said to have
     raised his hand towards Jayaram when accused Megha Tirkey
     dealt a lathi plow on the head of Samara Tirkey whereby he B
     fell down. Thereafter, the accused Megha Tirkey gave two more
     lathi blows on his chest. When Hauri caught hold of the accused, ·
     he gave a latl<li blow to her also and she received a lacerated
     wound on her forehead. Samara Tirkey was taken to the
     Raurkela Govt. Hospital, where he died on 27.6.1995 at about c
     2:00 p.m.

         4. Megha Tirkey was charged under Section 302 and 323
     IPC. The matter reached before the appellant on 21.03.1996
     when he passed the following order:-
                                                                      D
               "Order No.8 dt. 21.03.1996

               The accused is produced in cust9dy by the escort
         party. Learned Associate Lawyer who. represents the State
         is present. Learned Defence counsel is also present._
                                                                      E
               Learned Associate Lawyer opens the prosecution
         case by describing the charges brought against the
         accused and stating by what evidence he proposes to
         ~rove the guilt of the accused. The learned Defence
         counsel submits that there is complete absence of            F
         evidence to frame charge u/s 302 IPC and that the
         available evidence may bring at-best an offence u/s 304
~·
         IPC.
               After hearing submissions of both sides in this behalf G
         and on consideration of the materials available in the case
         diary, I find there is no sufficient material to frame charge
         u/s 302 IPC but there are sufficient materials against the
         accused for presuming that he has committed the offence
         u/s 304 IPC and 323 IPC.
                                                                       HI
    348       SUPREME COURT REPORTS                [2011] 2 S.C.R.


A               Hence, charge u/s 304 IPC and u/s 323 IPC are
          framed against the accused. The charges being read-over
          and explained, the accused pleads not guilty and claimed
          to be tried.

              The Defence does not admit the genuineness of the
B
          documents filed by the prosecution.

               Put up on 25.4.96 for fixing a date of hearing of the
          Sessions trial
                                                             Sd/-
c                                           Addl. Sessions Judge,
                                                        Rourkela,
                                                         21.3.96"
        5. Subsequently, the appellant was transferred from
0 Rourkela, and the matter proceeded before one Shri S.K.
  Mishra, the subsequent Additional Sessions Judge at Rourkela.
  It so happened that during the trial, some of the prosecution
  witnesses, viz. PW Nos. 2, 4, 5, 6, 7 were declared hostile by
  the prosecution since they did not support the case. The Judge,
  however, found the evidence of Hauri {PW No. 3) wife of
E Samara Tirkey, the deceased, as acceptable and reliable. Her
  testimony was supported by the medical evidence. The Doctor
  found a lacerated injury on her forehead. She stated that the
  accused had given a lathi blow on the head of the deceased
  and then on his chest, in her presence. She also stated about
F the lathi blow given to her. The post-mortem examination
  revealed that amongst other injuries, the left side mandible of
  the deceased was fractured and there was subdural
  haematoma over the left parietal region of the scalp. The other
  vital organs like lungs, liver, kidney were all congested. Due to
G these injuries, the deceased went into coma and then died. The
  learned Judge held that the prosecution had established the
  charges beyond reasonable doubt and found the accused guilty
  of offences under Section 304 and 323 of IPC, and convicted
  him accordingly. He sentenced him to undergo Rigorous
H
                                           '
     R.S. MISHRA v. STATE OF ORISSA & ORS.                   349
               [H.L. GOKHALE, J.]

Imprisonment for five years under Section 304 (1) of IPC and        A
for one month for offence under Section 323 IPC, with both the
punishments running concurrently.

    6. Note by the Inspecting Judge
                                                                  8
     It so transpired that later the inspection of the Court of
Additional & District Sessions Judge, Rourkela was carried out
by Hon'ble Mr. Justice P.K. Mishra, then a Senior Judge of the
High Court of Orissa. At that stage, while going through the file
of S.T. No.187/55 of 1995, Mr. Justice P.K. Mishra came
across the above referred Order No.8 dated 21.3.1996 passed C ·
by the appellant herein. Thereupon Mr. Justice P.K. Mishra
made the following note on that file:-

          "ln this case, the only accused Megha Tirkey was
    charge-sheeted under sections-302/323 IPC for clubbing          o
    the victim (Samra Tirkey} to death on 26.06.1995 at 3.30
    P.M.

           The additional Sessions Judge, Rourkela while
    discharging the accused from the offence under Section          E
    - 302 framed charges under sections 304/323 of the
    Indian Penal Code without recording any reason for
    discharging the accused from the offence under Section
    302 IPC. The order of the A-dditional Sessions Judge only
    states that material available in the case diary is
    insufficient to frame a charge under Section 302 IPC.           F

         It is the settled principle of law that while framing
    charge the Sessions Judge under Section -228 Cr.P.C.
    need not assign reasons, but he is bound to record
    reasons while recording a discharge under Section 227 G
    Cr.P.C.

          In the present case, the widow of the deceased
    (P.W.3) has testified that the accused dealt a forceful lathi
    blow on the head of the deceased and two more blows
    on his chest. The post-mortem examination reveals that          H
    350      SUPREME COURT REPORTS                  [2011] 2 S.C.R.

A         ramus of the left side mandible of the deceased was
          fractured on the chin besides left parietal region of the
          scalp.

                Relying on the ocular testimony of widow of the
B         deceased and the post-mortem examination report that
          lends support to her evidence, the Additional Sessions
          Judge recorded a conviction under Section 304 (1)/323
          of the Indian Penal Code and sentenced the accused to
          undergo R.I. for five years on the first count and one month
          RI. on the second count with a direction for concurrent
c         running of sentences.

                It is no body's case that the offence was committed
          on grave and sudden provocation. The Addi. Sessions
          Judge should not have nipped the case U/s 302 IPC at the
D         bud by discharging the accused thereof by a non speaking
          order. This is a fit case for suo-moto revision U/s 401
          Cr.P.C."

          7. Suo-moto Criminal Revision

E      In view of the note of Hon'ble Justice Mr. P.K. Mishra, the
  High Court took up a suo-moto Criminal Revision against the
  order dated 21.3.1996, which was numbered as No.187/55 of
  1995. The learned Single Judge, who heard the matter, went
  through the judgment rendered at the end of the trial in Case
F No.187/55 of 1995, as well as the order of framing charge
  dated 21.3.1996. He examined the material on record and
  noted that P.W. No. 3 had come to the rescue of her husband
  when he received lathi blows. She had also received a lathi
  blow. Her evidence was, therefore, a credible evidence. He
G referred to the post-mortem report which stated that out of the
  four external injuries, injury No. 4, i.e., fracture of ramus of left
  side mandible, was grievous. On dissection, it had been found
  by the Doctor that the brain membrane was congested. There
  was a subdural haematoma over the left parietal lobe and brain
H was congested. The other vital internal organs like lungs, liver,
                                                             '
      R.S. MISHRA v. STATE OF ORISSA & ORS.                   351
                [H.L. GOKHALE, J.]
  spleen, kidney were all congested. The Doctor (P.W. No.8)           A
  opined that death was due to coma resulting from injury to brain
  and scalp bones and the injuries were ante-mortem in nature.
- On this factual aspect, the learned Single Judge held as
  follows:-
                                                                      B
            "If the materials in the case diary reveal two distinct
      offences of the same nature then it is appropriate to
      frame charge for more grievous offence or to frame
      charge for both the offences distinctly and separately.
      That being the settled position of law and the prosecution C
      case stands in the manner indicated abOVfJ, therefore,
      there is no hesitation to record a finding that learned
      Additional Sessions Judge, Rourke/a went wrong in
      framing charge for the offence under Section 304, /PC
      by declining to frame charge under Section 302 /PC for
      no reason explained in the order passed under Section D
      228 Cr.P.C."

      8. Impugned observation by the Single Judge
      The learned Single Judge, however, noted that by the time· .E
 he was deciding the Criminal Revi~ion, the accused had
 already served the sentence of five years of Rigorous
 Imprisonment. Therefore, he did not deem it to be a fit case
 for ordering a retrial under Section 300 (2) of Code of Criminal
 procedure, 1973 ('Cr.P.C.' for short). He disposed of the suo-
 moto Criminal Revision accordingly by his order dated F
 28.10.2002.

     9. The learned Single Judge, however, made certain
 observations in para 5 of his order which are material for our
 purpose. This para reads as follows: -                         G

             "5. A Judicial Officer before being posted as Addi.
      Sessions Judge gets the experience of conducting
      sessions cases as Assistant Sessions Judge; Therefore,
      in this case, it cannot be said that the concerned Presiding    H
    352       SUPREME COURT REPORTS                  [2011] 2 S.C.R.


A         Officer had no requisite experience to deal with a matter
          relating to consideration of charge and to pass appropriate
          legal order under Sections 227 and 228 Cr. P.C correctly.
          When the accused was not charged for the offence under
          Section 302, IPC and instead he was charged for the
B         offence u/s 304 IPC, it was incumbent on the trial court to
          explain the circumstances and to reflect the same in the
          order as to what was the reason or lack of evidence not
          to frame charge for the offence under Section 302 IPC.
          This Court finds no reasonable excuse for the concerned
c         Presiding Officer to commit a blunder in the above
          indicated manner ......• If the said Judicial officer has not
          yet been confirmed in the cadre of O.S.J.S (S.B.), then
          before confirming him in that cadre his performance be
          thoroughly verified and in the event of finding glaring
          deficiency in his performance, as in this case, then he may
D
          be kept on probation for a further period as would be
          deemed just and proper by the High court. If he has
          already been confirmed in that cadre, then his
          performance be thoroughly verified before giving him
          promotion to the higher scale. n
E
         Thus, in first part of this para, the learned Judge has held
    that the appellant had committed a blunder in not framing the
    charge under Section 302 IPC. In the latter part of the para, he
    has made certain observations about the manner in which the
F   appellant had passed the order dated 21.3.1996, and also
    some correctional suggestions about the appellant.

        10. Subsequent to these observations in this order dated
    28.10.2002, the High Court Administration examined the record
    of the appellant and denied him the Selection grade. The
G appellant's representation dated 24.09.2003 in that behalf was
    also rejected by the High Court Administration as per the
    communication dated 20.11.2003 to the appellant from the
    Special Officer (Administration). Being aggrieved therewith the
    appellant took Voluntary Retirement on 30.11.2003, and
H
     R.S. MISHRA v. STATE OF ORISSA & ORS.                   353
               [H.L. GOKHALE, J.]
subsequently filed the present Appeal by special leave on A
13.02.2004 to challenge the above order dated 28.10.2002 and
the observations made therein.
                                                                    .,
     11. Submissions on behalf of the Appellant

     Mr. Uday Gupta; learned Counsel for the appellant, 8
submitted that the order passed by the appellant on 21.3.1996 .
was a judicial order.. It is possible to say that this order was an
erroneous one, but merely for that reason, it was not proper for
the inspecting judge to direct that a suo-moto R~vision be filed
against the same. In any case, it was wrong on the part of the C
learned Single Judge who heard the suo-moto Revision, to
make the observations which he has made in the above quoted
paragraph 5 of his order which has affected appellant's career.
Mr. Gupta submitted that the appellant had otherwise a good
service record after his promotion in District Judge's Cadre in D
August 1991. He had worked initially as an Additional Special
Judge (Vigilance) at Bhubaneshwar, thereafter for two years as
the Presiding Officer of the E.S.I Court at Rourkela, then as
Additional Sessions Judge at Rourkela in 1996 and then for
three years as the Presiding Officer of the Central Govt. Industrial E
Tribunal at Asansol, West Bengal. Subsequently, he became the
Additional District Judge and Presiding Officer of the Motor
Accidents Claims Tribunal in Cuttack, Orissa from July 1999 to
November 1999. From November 1999 to September 2002,
he was the Director (Law Studies), Gopabandhu Academy of F
Administration, Bhubaneshwar, and subsequently the Additional
District Judge, Talcher, Orissa, from October 2002 to
30.11.2003. He pointed out that the appellant had participated
in various seminars and conferences and presented his papers.
His record was otherwise quite good.                                 G
      12. Mr. Gupta relied upon the judgment 'In the matter of
'K' A Judicial Officer [2001 (3) sec 54]'. The concerned judicial
officer in that matter was assigned a courtroom which had great
infrastructural difficulties. Complaints in that behalf were not
being attended in spite of a number of representations to the H
    354     SUPREME COURT REPORTS                  [2011] 2 S.C.R.

A   PWD officials. Being dissatisfied by this inaction, the learned
    Judge issued a notice to the concerned authorities as to why
    action in contempt should not be taken against them. The PWD
    acted promptly thereafter, and carried out the necessary
    repairs. Learned Judge therefore dropped the contempt -
B proceedings but still held that there was a case to take
    cognizance under Sections 380, 201 and 120-B of IPC and
    issued process against the concerned officers. Being
    aggrieved by that order, the matter was carried to the High
    Court where the High Court observed that the learned
C Magistrate had exceeded her jurisdiction defying an judicial
    norms to pressurize the officers, and her order was a gross
  · abuse of the process of Court since there was no occasion to
    invoke the particular sections of IPC. When the Judicial Officer
    carried the matter to this Court, this Court observed in
    paragraph 15 of the above judgment that by the observations
D of the High Court, the Judicial Officer was being condemned
    unheard. This Court observed in paragraph 15 that such
    observations give a sense of victory to the litigant not only over
    his opponent but also over the Judge who had decided the
    case against him and the same should be avoided. The
E counsel for the appellant relied upon the report of the First
    National Judicial Pay Commission to submit that at times the
    Trial Judges are really on trial as observed in the report.

         13. The learned Counsel for the appellant then relied upon
F   the observations in para 13 of the judgment of this Court in V.K.
    Jain Vs. High Court of Delhi through Registrar General and
    Others [2008 (17) SCC 538] and the principles of law laid down
  in para 58 thereof. In that matter, the appellant while working
  as a Judicial Officer in the Higher Judicial Services of Delhi,
G vide his order dated 4.3.2002, permitted an accused in a
  criminal case to go abroad subject to the conditions that the
  accused would file Fixed Deposit Receipts (FDR) of Rs. one
  lakh and also surrender passports of his mother and wife. When
  the said order dated 4.3.2002, was challenged, the High Court
H found those conditions unacceptable. In its order, the High Court
                                                                      I

            R.S. MISHRA v. STATE OF ORISSA & ORS.                 355
                      [H.L. GOKHALE, J.]
        made certain observations against the petitioner and in A
        paragraph 15 held that:-

                  "5 ..... This is nothing but a medieval way of
            administering justice when family members used to be kept
            as hostages in lieu of either release of their detained kith   .
                                                                         8
            and kin or procure the surrender of the wanted man."

             Being aggrieved by that order the Judicial· Officer carried
        the matter to the Supreme Court, where this Court cautioned
        against making such strong observations, it expunged those
        remarks from the order of Delhi High Court. In sub-paragraph C
        IX of para 58, this Court laid down the following principle:-
    i
!                 "IX. The superior courts should always keep in mind
            that disparaging and derogatory remarks against the
            judicial officer would cause incalculable harm of a 0
            permanent character having the potentiality of spoiling the
            judicial career of the officer concerned. Even if those
            remarks are expunged, it would not completely restitute
            and restore the harmed Judge from the loss of dignity and
            honour suffered by him. n
                                                                        E
            Mr. Gupta emphasized these observations and submitted
        that the High Court should not have made the above
        observations in para 5 of the impugned order which have
        caused an incalculable harm to the career of the appellant.
                                                                       F
         14. He then relied upon paragraphs 16 to 20 of the
    judgment in Prakash  I
                              Singh Teji Vs. Northern India Goods ·
    Transport Company Private Limited and Anr. [2009 (12) SCC
    577]. In that matter, in the facts of the case the High Court had
    described the approach of the Judicial Officer concerned as G
    hasty, slipshod and perfunctory. The adverse remarks against
    the appellant were removed in paragraph 20 of the judgment
    in the light of the principles laid down in 'K' A Judicial Officer
    (Supra). This Court held that harsh or disparaging remarks are
    not to be made against persons and authorities whose conduct
                                                                          H
    356      SUPREME COURT REPORTS ,,               [2011] 2 S.C.R.


A   comes into consideration before courts of law unless it is really
    necessary for the decision of the case as an integral part
    thereof.                                     ,

          15. Reply by the Respondents
B         The arguments of the appellant were countered by Mr.
    Janaranjan Das and Mr. Suresh Chandra Tripathy appearing
    for the respondents. Affidavits in reply have been filed by -the
    State Government and also on behalf of Respondent Nos. 3
    and 4 to the appeal, i.e. Registrar (Administration) and
C   Registrar (Judicial) of High Court of Orissa. It is pointed out in
    the affidavit on behalf of the High Court that this was not a
    solitary incident concerning the appellant. Adverse remarks
    were entered into his confidential record for the years 1973-
    79 continuously, and again for 1981, 1983, 1987 to 1989, and
D   1991. It was also pointed out that in a case under Narcotic
    Drugs and Psychotropic Substances Act, 1985 (N.D.P.S. Act),
    the appellant had granted bail in the teeth of the prohibition
    under Section 37 of that Act. He was, therefore, placed under
    suspension from 19.12.1992. An inquiry was initiated, though
E   after considering the report of the inquiry, the proceeding was
    dropped and the appellant was allowed to resume from
    15.8.1994. He was then posted as Additional District Judge,
    Rourkela where he heard the matter concerning the murder of
    Samara Tirkey. With respect to this submission of the
F   respondents, the counsel for the appellant pointed out that after
    the revocation of suspension, his service record was good, and
    in fact thereafter the remark of being 'outstanding' was
    recorded in his service book for a few years. The counsel for
    the respondents countered this submission by pointing out that
    subsequent to the revocation of suspension also there were
G   representations against appellant's honesty and integrity,
    particularly while working as the Industrial Tribunal cum Labour
    Court in Asansol, West Bengal. In fact because of that, he was
    transferred back to Malkanagiri, Orissa where he opted for
    voluntary retirement.
H
     R.S. MISHRA v. STATE OF ORISSA & ORS.                  357
               [H.L. GOKHALE, J.]
      16. It was submitted on behalf of the respondents that the A
case No. 187/55 of 1955 was a serious one concerning the
death of a young person aged about 40 years. The deceased
was given a lathi blow on his head because of which he fell
down, whereafter also two lathi blows were given on his chest.
His wife also received a lathi blow and she was an eye witness. B
Medical Evidence showed that because of these blows the ·
deceased had died. None of these aspects has been
considered by the appellant in his order dated 21.03.1996,
extracted above. All that the appellant has stated in this order
is that he had heard the submissions of both sides, and on the c
consideration of the material available in the case diary, he
found that there was no sufficient material to frame the charge
under Section 302 IPC. As against that, according -fo the
respondents there was sufficient material on record--to justify
the framing of the charge under Section 302 IPC, and in any 0
case while declining to frame the charge under Section 302 IPC,
the appellant ought to have discussed as to why according to
him the material on record was not sufficient. Absence of
reasons in such a case amounts to a dereliction of duty. The
order in such a matter has to be a self-explanatory one. Since
it is not so, all that the learned Single Judge deciding the E
Revision has done, is to suggest to the High Court
Administration to take corrective steps with respect to the
appellant, ar{d the same was justified.

     17. Consideratio!'I                                           F

     We have noted the submissions of both the counsel. We
are concerned with the role of the Judge at the stage of framing
of a charge. The provision concerning the framing of a charge
is to be found in Section 228 of Cr.i::r.c. This Section is        G
however, connected with the previous section, i.e. Section 227
which is concerning 'Discharge'. These two sections read as
follows:-                            ·

          Section 227 - Discharge - If, upon consideration of
    the record of the case and the documents submitted             H
                           '
    358       SUPREME COURT REPORTS                 [2011) 2 S.C.R.

A         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.
B
                Section 228 - Framing of charge (1) If, after such
          consideration and hearing as aforesaid, the Judge is of
          opinion that there is ground for presuming that the
          accused has committed an offence which-
c         (a) is not exclusively triable by the Court of Session, he
          may, frame a charge against the accused and, by order,
          transfer the case for trial to the Chief Judicial
          Magistrate~[or any other Judicial Magistrate of the first
          class and direct the accused to appear before the Chief
D         Judicial Magistrate, or, as the case may be, the Judicial
          Magistrate of the first class, on such date as he deems
          fit, and thereupon such Magistrate] shall try the offence in
          accordance with the procedure for the trial of warrant-
          cases instituted on a police report;
E
          (b) is exclusively triable by the Court, he shall frame in
          writing a charge against the accused.

          (2) Where the Judge frames any charge under clause (b)
          of sub-section (1), the charge shall be read and explained
F         to the accused and the accused shall be asked whether
          he pleads guilty of the offence charged or claims to be
          tried.

       18. As seen from Section 227 above, while discharging
G an accused, the Judge concerned has to consider the record
  of the case and the documents placed therewith, and if he is
  so convinced after hearing both the parties that there is no
  sufficient ground to proceed against the accused, he shall
  discharge the accused, but he has to record his reasons for
H doing the same. Section 228 which deals with framing of the
       R.S. MISHRA v. STATE OF ORISSA & ORS.                      359
                 [H.L. GOKHALE, J.]
  charge, begins with the words "If after such consideration". Thus,      A
  these words in Section 228 refer to the 'consideration' under
  Section 227 which has to be after taking into account the record
  of the case and the documents submitted therewith. These
  words provide an inter-connection between Sections 227 and
  228. That being so, while Section 227 provides for recording            B
  the reasons for discharging an accused, although it is not so
  specifically stated in Section 228, it can certainly be said that
  when the charge under a particular section is dropped or
  diluted, (although the accused is not discharged), some
  minimum reasons in nutshell are expected to be recorded                 c
  disclosing the consideration of the material on record. This is
  because the charge is to be framed 'after such consideration'
  and therefore, that consideration must be reflected in the order.

        19. It is also to be noted that a discharge order is passed
  on an application by· the accused on which the accused and              D
  the prosecution are heard. At the stage of discharging an
  accused or framing of the charge, the victim does not
  participate in the proceeding. While framing the charge, the
  rights of the victim are also to be taken care of as also that of
  the accu~P.d. That responsibility lies on the shoulders of the          E
  Judge. Therefore, on the analogy of a discharge order, the
  Judge must give his reasons atleast in a nutshell, if he is
  dropping or diluting any charge, particularly a serious one as
  in the present case. It is also necessary for the reason that the
· order should inform the prosecution as to what went wrong with          F
  the investigation. Besil.!os, if the matter is carried tci the higher
  Court, it will be able to know as to why a charge was dropped
  or diluted.
      20. The observations of this Court in the case of State of
 Bihar Vs. Ramesh Singh [AIR .1977 SC 2018) I [1977 (4) SCC G
 39) are very apt in this behalf. A bench of two Judges of this
 Court has observed in that matter that at the initial stage of the
 framing of a charge, if there is a strong suspicion/evidence
 which leads the Court to think that there is ground for presuming H
    360       SUPREME COURT REPORTS                    [2011) 2 S.C.R.


A 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 Court referred to the
  judgment of a bench of three Judges in Nirmaljit Singh Hoon
   Vs. State of West Bengal [1973 (3) SCC 753), which in turn
B referred to an earlier judgment of a bench of four Judges in
  Chandra Deo Singh Vs. Prakash Chandra Bose [AIR 1963
  SC 1430), and observed as follows in para 5:-

                "5. In Nirmaljit Singh Hoon v. State of West Bengal
          - She lat, J. delivering the judgment on behalf of the majority
c         of the Court referred at page 79 of the report to the earlier
          decisions of this Court in Chandra Deo Singh v. Prokash
          Chandra Bose - where this Court was held to have laid
          down with reference to the similar provisions contained in
          Sections 202 and 203 of the Code of Criminal Procedure,
D         1898 "that the test was whether there was sufficient ground
          for proceeding and not whether there was sufficient
          ground for conviction, and observed that where there was
          prima facie evidence, even though the person charged of
          an offence in the complaint might have a defence, the
E         matter had to be left to be decided by, the appropriate
          forum at the appropriate stage and issue of a process
          could not be refused". Illustratively, Shelat, J., further added
          "Unless, therefore, the Magistrate finds that the evidence
          led before him is self-contradictory, or intrinsically
F         untrustworthy, process cannot be refused if that evidence
          makes out a prima facie case".(emphasis supplied)
      Further, as observed later in paragraph 6 of a subsequent
  judgment of this Court in Niranjan Singh Vs. Jitendra Bhimraj
  [1990 (4) sec 76), at the stage of the framing of the charge,
G the Judge is expected to sift the evidence for the limited
  purpose to decide if the facts emerging from the record and
  documents constitute the offence with which the accused is
  charged. This must be reflected in the order of the judge.
H         21. Thus it cannot be disputed that in this process the
             R.S. MISHRA v. STATE OF ORISSA & ORS.                  361
                       [H.L. GOKHALE, J.]
        minimum that is expected from the Judge is to look into the         A
        material placed before him and if he is of the view that no case
        was made out for framing of a charge, the order ought to be
        clear and self-explanatory with respect to the material placed
        before him. In the present case, all that the appellant stated in
        his order dated 21.03.1996 was, that on consideration of the        B
        material available in the case diary, he had found that there was
        no sufficient material to frame the charge under Section 302
        of IPC. This is nothing but a bald statement and was clearly
        against the statement of the injured eye witness, and supporting
        medical papers on record. The appellant has not even referred       c:
        to the same. He has also not stated in his order as to why he
        was of the opinion that the material available in the case diary
        was insuffcient. Such a bald order raises a serious doubt about
        the bona fides of the decision rendered by the Judge
        concerned.                                                          D
             22. In the instant case, a young persor had been killed. It
        was not a case of grave and sudden provocation. The material
        on record showed that there was an injured eye witness and
        there was the supporting medical report. The material on record
        could not be said to be self-contradictory or intrinsically         E
        unreliable. Thus, there was a prima facie case to proceed to
        frame the charge under Section 302 IPC. The reason given for
        dropping the charge under $ection 302 was totally inadequate
•' \:
        and untenable, and showed a non-application of mind by the
• 1     appellant to the statements in the charge-sheet and the medical     F
        record. The order does not explain as to why a charge under
        Section 304 was being preferred to one\under Section 302
        IPC. In fact, since the material on record revealed a higher
        offence, it was expected of the appellant to frame the charge
        for more grievous offence and not to dilute the same.               G

              23. The impugned ord~r of the learned Single Judge
        deciding Revision notes that the appellant had been functioning
        in the rank of the District Judge from August 1991 onwards,
        i.~. for nearly 5 years prior to his order dated 21.3.1996. The     H
    362      SUPREME COURT REPORTS                   [2011] 2 S.C.R.


A impugned order further states in para 5, that a Judicial Officer,
  before being posted as an Additional Session Judge, gets an
  experience of taking the sessions cases as Assistant Session
  Judge. It cannot, therefore, be said that the appellant did not
  have requisite experience to pass a correct legal order under
B Section 228 of Cr.P.C.             ·

          24. That apart, all that the impugned order in Revision has
    done is to suggest to the High Court Administration, that if the
    appellant is not yet confirmed, his probation should wait and if
    he has already been confirmed, his performance be verified
C   before giving him the higher scale. Since the appellant, was
    already confirmed in service, all that the High Court has done
    on the administrative side is to check his record, and thereafter
    to deny him the selection grade. The above observation in the
    impugned order in Revision is a suggestion to the
D   Administration of the High Court. It is not a case of making any
    adverse or disparaging remarks as in the three cases cited on
    behalf of the appellant. In fact, in the first judgment cited by the
    appellant, in the case of V.K. Jain (supra), the observation of
    this Court in clause No. I of para 58 is very significant, namely
E   that the erosion of the credibility of the judiciary in the public
    mind, for whatever reason, is the greatest threat to the
    independence of judiciary. Having noted that the appellant had
    failed in discharging his duty in framing the correct charge, and
    having also noted that his record was not good, the High Court
F   could not have granted him the selection grade. The selection
    grade is not to be conferred as a matter of right. The record of
    the concerned Judge has to seen, and that having been done
    in the present case (in pursuance to the observations of the
    learned Single Judge), and having noted the serious
G   deficiencies, the High Court has denied the selection grade to
    the appellant. Interestingly enough, in this Appeal by Special
    leave, the appellant is not directly seeking to challenge the
    denial of selection grade. He is challenging the observations
    in the impugned order which led to denial of the selection grade.
H   In our view, the impugned order contained nothing but a
      R.S. MISHRA v. STATE OF ORISSA & ORS.                    363
                [H.L. GOKHALE, J.]
 correctional suggestion to the High Court Administration which        A
 the Administration has accepted.

       25. It is only because of the note made by inspecting Judge
  that the cursory order passed by the appellant in the Sessions
· case diluting the charge against the accused came to the                 .
                                                                       8
  notice of the High Court Administration. It is contended on behalf
  of the appellant that in any case the suo-moto Revision has not
  led to the reopening of the case under Section 401 of the Code
  of Criminal Procedure. In this connection, we must note that by
  the time the suo-moto Revision was decided, the accused had
  already undergone the punishment of rigorous imprisonment of         C
  5 years. Therefore, the Revisional Court did not deem it fit to
  reopen it. The appellant cannot take advantage of this part of
  the judgment of the Revisional Court, to challenge the
  observations of the learned Revisional Judge making a
  suggestion to the High Court to scrutinize appellant's record for    D
  the dereliction of duty on his part. The appellant was responsible
  for an unjustified dilution of the charge and, therefore, the
  thorough checking of his service record was necessary which
  is, what is directed in the impugned order.
                                                                       E
      26. For the reasons stated above, we find no reason to
 interfere in the impugned order making certain observations
 and suggestions which were necessary in the facts and
 circumstances of the case. The appeal is therefore, dismissed,
 though there will be no order as to the costs.                        F

- 8.8.8.                                       Appeal dismissed,