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Bombay High Court
Nandkishor Rampal Lohiya And Ors. vs State Of Maharashtra on 14 September, 2000
Equivalent citations: 2001 CriLJ 2742
Author: B Vagyani
Bench: B Vagyani


ORDER

B.B. Vagyani, J.

1. Heard Shri Vijay Sharma, learned Advocate for the petitioners and Shri N.H. Borade, learned APP for the State.

2. Rule returnable forthwith. With consent, taken up for final hearing.

3. This Criminal Revision Application is directed against the order dated 7-1-1999 passed by the Additional Sessions Judge, Ambajogai in Sessions Case No. 47 of 1994. The petitioner No. 1 is the son of petitioners Nos. 2 and 3. The petitioner No. 4 is their Accountant and the petitioner No. 5 is serving as Driver.

4. The deceased Joytsna was married to petitioner No. 1 on 14-12-1985. Jyotsna was to attend the marriage of her brother at Beed. On 23-5-1991, the petitioners Nos. 4 and 5 were asked to reach Jyotsna to Beed. The petitioners Nos. 2 and 3 did not send their grandson Kalpesh along with Jyotsna. The petitioner No. 1 wanted to join Jyotsna. He left his house on Hero Honda motorcycle and overtook the vehicle. He asked the petitioenr No. 5 to go back on his motorcycle to Parali and took the control of vehicle. The petitioner No. 4 sat by his side. Jyotsna was on the rear seat of the Maruti Van. The petitioner No. 1 drove the vehicle towards Beed. The sliding door of the Maruti Van suddenly opened and Jyotsna fell down from the van on the road. The petitioner No. 1 stopped the vehicle. The petitioners Nos. 1 and 4 got down from the van, picked up injured Jyotsna and took her to the hospital of Dr. Pradeep Vangikar at Parali. Thereafter Jyotsna was admitted in S.R.T.R. Medical College and Hospital, Ambajogai. As per medical advice, Jyotsna was shifted to Rubi Hospital at Pune. Jyotsna, however, succumbed to her head injury on 14-6-1991.

5. On 18-6-1991, accidental death case No. 19 of 1991 was registered at Parali (Rural) Police Station. The enquiry of accidental death was entrusted to Police Head Constable Omprakash Mehendre. Police Head Constable Mehendre recorded statements of all concerned Including Hiralal Ramlal Sarda, father of deceased Jyotsna on 2-7-1991. Hiralal Sarda told police that Jyotsna had no problem or trouble from her in-laws. He further stated that he did not harbour any suspicion about death of Jyotsna.

6. The Superintedent of Police, Beed noticed certain mistakes and omissions in the enquiry of accidental death No. 19 of 1991 and, therefore, he directed reinvesti-gation by S.D.P.O., Ambajogai. The statement of Hiralal Sarda was recorded afresh. Hiralal Sarda, on 8-12-1991, told police that the petitioners Nos. 1 to 3 subjected Jyotsna to ill-treatment on account of her failure to comply with the dowry demand. Hiralal Sarda expressed suspicion about death of Jyotsna.

7. On the basis of the statement of Hiralal Sarda, Crime No. 268 of 1991 has been registered against the present petitioners. After completion of the necessary investigation, charge sheet was submitted and thereafter the case is committed to the Sessions Court, Ambajogai.

8. The learned Additional Sessions Judge, Ambajogai framed charge against the petitioners under Section 498A and 302, r/w 34 of Indian Penal Code. The accused pleaded not guilty to the charge and claimed to be tried.

9. The petitioners, by their application Exh. 56 dated 31-7-1996, moved the learned Additional Sessions Judge, Ambajogai for discharge. In the alternative, they prayed that the charge framed under Section 322 r/w 34 of Indian Penal Code be dropped. The State opposed the said application for discharge.

10. The Special Public Prosecutor filed application Exh. 62 dated 16-10-1996 and thereby moved the learned Additional Sessions Judge, Ambajogai for framing additional charge under Section 120B, 304B, 201 r/w 34 of Indian Penal Code. The petitioners opposed the said application Exh. 62.

11.By composite order dated 7-1-1999, the learned Additional Sessions Judge, Ambajogai rejected the application filed by the petitioners for discharge. However, the learned Additional Sessions Judge, Ambajogai partly allowed the application Exh. 62 filed by the State. The learned Additional Sessions Judge, Ambajogai has held that there is sufficient material on record for framing additional charge under Section 120B of Indian Penal Code.

12. Feeling aggrieved by the order dated 7-1-1999 passed by the learned Additional Sessions Judge, Ambajogai, the petitioners have filed the present Criminal Revision Application.

13. The learned Advocate Shri Sharma vehemently submitted that the deceased Jyotsna died because of accident. He further submits that there is no sufficient material on record to frame charges under Section 498A and 302 r/w 34 of Indian Penal Code. He also submits that in the absence of any material on record, it is not proper to frame additional charge under Section 120B of Indian Penal Code. He made a grievance that the learned Additional Sessions Judge, Ambajogai has not at all taken into consideration the statement of Hiralal Sarda recorded in A.D. No. 19 of 1991. He further points out that Hiralal Sarda did not on his own convey to the police officers that there was demand for dowry and in connection with the dowry demand, the petitioners Nos. 1 to 3 subjected Jyotsna to cruelty. He made serious grievance about involvement of petitioners Nos. 4 and 5 in the crime in question. According to him, the learned Additional Sessions Judge, Ambajogai ought to have passed order of discharge.

14. Shri Borade, learned APP has, however, strongly supported the impugned order dated 7-1-1999 passed by the learned Additional Sessions Judge, Ambajogai. He points out from the First Information Report dated 8-12-1991 that there are allegations with regard to dowry demand and cruelty. He further submits that Ganpati Kendre had witnessed the quarrel between the petitioners Nos. 1 to 3 on one hand and the deceased on the other. He also points out that witness Sambhaji Muley had seen petitioner No. 1 assaulting the deceased.

15. I gave anxious consideration to the rival submissions made at the Bar. Chapter XVIII of Criminal Procedure Code, 1973 is in respect of trials before the Court of Sessions. The accused can claim discharge under Section 227 of the Criminal Procedure Code when there is no ground to sustain the charge. At the stage of framing charge, meticulous consideration is not required. What is relevant at the stage of framing charge is sufficiency of ground for proceeding against the accused and not whether the material on record is sufficient for conviction. It is to be noted that the petitioners herein did not at all claim for discharge under Section 227 of Criminal Procedure Code. It is an admitted fact that the learned Additional Sessions Judge, Ambajogai framed charges against the petitioners under Section 228 of Criminal Procedure Code. The conjoint reading of Sections 227 and 228 of Criminal Procedure Code would clearly point out that the accused is required to exhaust his remedy of discharge given to him under Section 227 Criminal Procedure Code before the stage of framing charge and not thereafter.

16. In the instant case, the petitioners pleaded not guilty to the charge and claimed to be tried. The next stage is recording of evidence. Under the circumstances, the accused cannot claim discharge under Section 227 of Criminal Procedure code. Now the only course open for the learned Additional Sessions Judge, Ambajogai is to record the evidence and terminate the trial either in acquittal or in conviction after following due procedure. The learned Additional Sessions Judge, Ambajogai cannot fall back on the provisions of Section 227 Criminal Procedure Code and pass the order of discharge.

17. Similarly, the learned Additional Sessions Judge, Ambajogai has no power under Section 216 of Criminal Procedure Code to cancel the charge. After framing the charge and after recording the plea of the accused, the Sessions Judge is required to follow the procedure contained in Sections 229 to 235 of Criminal Procedure code. Section 229 of Criminal Procedure Code empowers the Judge to record order of conviction on plea of guilty. The Sessions Judge is required to fix the date for prosecution evidence as per Section 230 of Criminal Procedure Code. The Sessions Judge is further required to record evidence of prosecution under Section 231 of Criminal Procedure Code. If there is no legal evidence or proof, the Sessions Judge shall record an order of acquital under Section 232 of Criminal Procedure Code. If the accused is not acquitted under Section 232 Criminal Procedure Code, the Judge shall call upon the accused to enter on his defence and adduce evidence and file any written statement under Section 233 Criminal Procedure Code. After completion of defence evidence, the Judge is required to hear arguments of prosecution and the defence. After hearing the arguments and points of law, the Judge shall give judgment as per Section 235 of Criminal procedure Code. If regard is to the procedure for trial before the Court of Sessions, as given in Chapter XVIII of the Criminal Procedure Code, there is no provision for dropping the charge, after framing of charge under Section 228 of Criminal Procedure Code.

18. A reference with profit can be made to the case of Rajendra Singh Sethia v. The State, 1989 Cri LJ 255. The Division Bench of Calcutta High Court has held that an erroneous and improper charge may be corrected under Section 216 Criminal Procedure Code by refraining it properly or by adding to it or altering it for an offence provable by the evidence. The power to frame additional charge or alter the charge is comprehensive enough for remedying defects whether they arise out of the framing of a charge or the non-framing of a charge and whether they are discovered at the inception of the trial or at subsequent stage of the trial, prior to pronouncement of judgment. The Division Bench of Calcutta High Court has further observed that this power to add to or alter a charge cannot, however, be exercised unless there are evidences on record to support the additional or alteration of charge. In the said case, only three witnesses were examined and thereafter the accused filed petition under Section 216 Criminal Procedure code for dropping out unsustainable charges. The learned Metropolitan Magistrate rejected the prayer for dropping the charges. The accused preferred Criminal Revision. The Division Bench of Calcutta High Court has held that the petition under Section 216 Criminal Procedure Code is premature and that the charges cannot be dropped when most of the prosecution witnesses are yet to be examined. Consequently, the criminal revision filed by the accused was rejected.

19. I would also like to make reference to the case of Ratilal Bhanji Mithani v. State of Maharashtra AIR 1979 SC 94 : (1979 Cri LJ 41). The Supreme Court has held that once a charge is framed, the Magistrate has no power under Section 227 of Criminal Procedure Code, 1898 or any other provision of the Code to cancel the charge and reverse the proceedings to the stage of Section 253 and discharge the accused. The trial in warrant case starts with framing of charge. Prior to it, the proceedings are only an enquiry. After framing of charge, if the accused pleads not guilty, the Magistrate is required to proceed with the trial in the manner provided in Sections 254 to 258 to a logical end. Once a charge is framed in a warrant case instituted either on complaint or a police report, the Magistrate has no power under the Code to discharge the accused and thereafter, he can either acquit or convict the accused unless he decides to proceed under Sections 349 and 362 of Criminal Procedure Code, 1898. Under the circumstance. I hold that the rejection order passed below Exh. 56 does not suffer from any illegality. To that extent, Criminal Revision Application stands rejected.

20. No doubt, conspiracy is a matter of inference. The essence of criminal conspiracy is an agreement to do an illegal act. Conspiracy can be proved either by direct evidence or by circumstantial evidence. The learned Additional Sessions Judge, Ambajogai has pointed out 10 circumstances in para 13 of his order dated 7-1-1999 and has come to a conclusion that there is strong suspicion against all the petitioners for presuming that they have committed an offence of conspiracy punishable under Section 120B of India Penal Code. I carefully perused these 10 circumstances. In my view, these circumstances do not at all even remotely, indicate hatching of any conspiracy. It is to be noted that the petitioner No. 4 is in the employment of petitioners Nos. 1 to 3 as an Accountant. The petitioner No. 5 is serving with them as a Driver. There is no material on record to rope these two persons so far as the allegation with regard to conspiracy is concerned. The learned Additional Sessions Judge, Ambajogai has found fault with the presence of these petitioners in the house when Jyotsna was sent to Beed. There is nothing wrong in remaining present in the house so far as petitioners Nos. 1 to 3 are concerned. If the petitioners Nos. 4 and 5 visit the house of their master, how this circumstance would be a circumstance for drawing a presumption with regard to conspiracy. The learned Additional Sessions Judge, Ambajogai has collected some pieces of circumstances and erected a theory of conspiracy. This quantitative attempt does not at all warrant framing of charge under Section 120B of Indian Penal Code. The material placed on record does not at all indicate criminal conspiracy. Under the circumstances, the order passed below Exh. 62 for framing of additional charge under Section 120B of Indian Penal Code is liable to be quashed and set aside.

21. In the result, Criminal Revision Application is partly allowed. The order passed below Exh. 62 for framing additional charge under Section 120B of Indian Penal Code is quashed and set aside. Rule is partly made absolute accordingly.


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