Dhudabhai Surabhai Shiyaliya & 3 vs State Of Gujarat & on 17 March, 2015

[Cites 29, Cited by 0]

Gujarat High Court

Dhudabhai Surabhai Shiyaliya & 3 vs State Of Gujarat & on 17 March, 2015

Bench: J.B.Pardiwala

           R/SCR.A/1098/2015                                           ORDER




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

     SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 1098 of 2015

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            DHUDABHAI SURABHAI SHIYALIYA & 3....Applicant(s)
                              Versus
                STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR EE SAIYED, ADVOCATE for the Applicant(s) No. 1 - 4
MR SIKANDER SAIYED, ADVOCATE for the Applicant(s) No. 1 - 4
DS AFF.NOT FILED (N) for the Respondent(s) No. 2
MR NJ SHAH, APP for the Respondent(s) No. 1
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           CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA

                                 Date : 17/03/2015


                                   ORAL ORDER

1. By this application under Article 227 of the Constitution of India, the applicantsoriginal accused calls in question the legality and validity of the order dated 9th February 2015, below Exh:4, by which the Court framed charge against the applicants herein, of the offence punishable under Sections 307, 326, 323 read with Section 114 of the IPC.

2. To put it briefly, the case of the applicants herein is that having regard to the manner in which the accident occurred, the nature of injuries sustained by the injured persons, and the other circumstances emerging from the record of the case, the chargesheet could not have been filed by the Investigating Agency for the offence punishable under Section 307 of the IPC.

3. It is the case of the applicants that at best they could have been Page 1 of 17 R/SCR.A/1098/2015 ORDER chargesheeted under Section 326 of the IPC for causing grievous hurt to the witnesses.

4. It appears from the materials on record that initially in the FIR there was no reference to Section 307 of the IPC. The only Sections which were incorporated in the FIR were Sections 326, 325 and 323 read with Section 114 of the IPC. At a later stage, the I.O. filed a report dated 4th June 2014 before the J.M.F.C. Chotila for addition of the Section 307. On conclusion of the investigation, chargesheet was filed for the offence under Setions 307, 326, 323 read with Section 114 of the IPC. Till the framing of the charge, the applicants did not deem fit to file any application for discharge. Ultimately, the trial Court proceeded to frame charge for the offence under Section 307 of the IPC and other Sections. The applicants pleaded not guilty and claimed to be tried.

5. Mr. Saiyed, the learned advocate appearing for the applicants vociferously submitted that the issue before this Court is whether his clients should face the trial for the offence under Section 307 of the IPC or Section 326 of the IPC, which is a minor offence. He tried to persuade me to take a view that Section 307 being a major offence, has no application to the facts of the case, the same be ordered to be deleted from the chargesheet and the charge be quashed to that extent.

6. Mr. Saiyed also tried to persuade me to take such a view by placing reliance on the medical certificates on record, including the statements of the witnesses.

7. The issue which has been raised by Mr. Saiyed in this petition is squarely covered by my own judgment dated 6th January 2015, passed in Criminal Misc. Application No.3120 of 2014, rendered in the case of Hanif Usmanbhai Kalva and others versus State of Gujarat.

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8. I have considered this issue at length. I may quote the relevant paragraphs of my judgment:

"13. Therefore, the first question that falls for my consideration is whether the nature of the injuries sustained by the witnesses by itself would be the guiding factor whether charge should be framed of the offence of an attempt to commit murder punishable under section 307 of the Indian Penal Code or for some other offence like section 324 of the Indian Penal Code.

14. Section 323 of the Indian Penal Code punishes for causing voluntary hurt. The essential ingredients to constitute an offence under section 323 are as under:

"(i) That the accused caused hurt to another person;

(ii) That he caused such hurt voluntarily;

(iii) That such a case was not covered under Section 334 I.P.C."

15. To bring home an offence under section 323 IPC, the prosecution is to prove (a) the victim suffered from bodily pain, disease or infirmity; (b) that the accused caused the aforesaid bodily pain etc.; (c) that the accused did so intentionally or with knowledge that in the process hurt would be caused.

16. Section 324 of the Indian Penal Code is with respect to causing hurt voluntarily by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death..... An offence under section 324 IPC has the following essential ingredients:

"(i) That the accused voluntarily caused hurt to another person;

(ii) That such a hurt was in exception to cases provided under Section 334;

(iii) That such hurt was caused

(a) by means of any instrument for shooting, stabbing or cutting, or any instrument which used as a weapon of offence is likely to cause death; or

(b) by means of five or any heated substance; or (c ) by means of any poison or any corrosive substance; or

(d) by means of any explosive substance; or

(e) by means of any substance which is deleterious to the human body to inhale, to swallow, or receive into the blood; or Page 3 of 17 R/SCR.A/1098/2015 ORDER

(f) by means of any animal."

17. To bring home an offence punishable under section 324, the prosecution is to prove (a) that the accused casused hurt i.e., caused bodily pain, or disease or infirmity (vide Section 319, I.P.C.) to another; (b) that it has been caused voluntarily i.e. with knowledge or intention to cause;

(c) that it has been caused by any instrument for shooting, stabbing or cutting, or by any instrument which qua weapon of offence is likely to cause death, or by means of fire or any heated substance or by means of any poison or any corrosive substance or by measns of any explosive substance or by means of any substance which is deleterious to the human body to inhale to swallow or to receive into blood or by any means of any animal, and (d) that the offence does not attract section 334, I.P.C.

18. Section 326 speaks of causing grievous hurt by means of any instrument for shooting, stabbing or cutting......

19. An offence under section 326 has the following essential ingredients:

"(i) That the accused caused grievous hurt to any person;

(ii) That such hurt was caused voluntarily;

(iii) That such grievous hurt (as contemplated under Section 320) was caused by any means given under Section 324 I.P.C."

20. To prove an offence under section 326 IPC, the prosecution is to establish (a) that the accused caused grievous hurt as contemplated in Section 320, I.P.C. (b) that the accused caused it voluntarily as envisaged in Section 322, I.P.C. (c ) that causing of such grievous hurt was made by means of an instrument for shooting, etc., or by means of any poison, etc., or by means of any substance which it is deleterious to the human body to inhale, etc., or by means of any animal.

21. Section 307 of the Indian Penal Code reads thus:

"Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and, if hurt is caused to any person by such act, the offender shall be liable either to a [imprisonment for life], or to such punishment as is hereinbefore mentioned.

Attempts by lifeconvicts. When any person offending under this section is under sentence of a [imprisonment for life], he may, if hurt is caused, be punished with death."

22. An offence under section 307 has the following essential ingredients;

Page 4 of 17

R/SCR.A/1098/2015 ORDER "(i)That the accused did an act;

(ii) That the act was done with intention or knowledge and under such circumstances to cause a bodily injury as the accused knew to be likely to cause death or that such bodily injury was in the ordinary course of nature to cause death, or that the accused attempted to cause such death by doing an act known to him to be so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death; and

(iii) That the accused had no excuse for incurring the risk of causing such death or injury."

23. For liability under section 307, the prosecution has to prove the following facts:

"(1) That the accused did an act, and (2) that the act was done with such intention or knowledge and under such circumstances that if he by that act caused death he would be guilty of murder. If hurt is caused by such act, the offender becomes liable to imprisonment for life, otherwise the maximum term of imprisonment prescribed is 10 years. Thus the section itself does not take into consideration the effect of the act of the accused except as a measure of sentence to be imposed upon him."

24. Thus, from the above, the most important ingredient to constitute the offence of an attempt to commit murder punishable under section 307 of the Indian Penal Code is the intention and knowledge. To attract the provisions of this section, it is necessary for the prosecution to establish that the intention of the accused was one of the three kinds mentioned in section 300 of the Indian Penal Code. A person commits an offence under section 307, IPC when he has the intention to commit murder, and in pursuance of that intention, does an act towards its commission irrespective of the fact whether that act is the penultimate act or not. Section 307 requires that the act must be done with such intention or knowledge or in such circumstances that if death be caused by that act, the offence of murder will emerge.

25. At least one thing is very clear that causing such injury as would endanger life is not an essential condition for the applicability of section 307 of the Indian Penal Code. Even if the injuries inflicted are simple in nature, that by itself cannot be a ground for acquittal, if the offence otherwise falls under section 307 of the Indian Penal Code.

26. The word "intent" is derived from the word archery or aim. The "act" attempted to must be with "intention" of killing a man.

27. Intention, which is a state of mind, can never be precisely proved by Page 5 of 17 R/SCR.A/1098/2015 ORDER direct evidence as a fact; it can only be deduced or inferred from other facts which are proved. The intention may be proved by res gestae, by acts or events previous or subsequent to the incident or occurrence, on admission. Intention of a person can't be proved by direct evidence but is to be deduced from the facts and circumstances of a case. There are various relevant circumstances from which the intention can be gathered. Some relevant considerations are the following:

1. The nature of the weapon used.

2. The place where the injuries were inflicted.

3. The nature of the injuries caused.

4. The opportunity available which the accused gets.

28. I may quote with profit a Division Bench decision of the Kerala High Court in the case of Sanku Sreedharan Kottukallil Veettil Konathadi Kara vs. State of Kerala, AIR 1970 KERALA 98 (V. 57 C 20).

15. Intention and knowledge are a man's state of mind; direct evidence thereof except through his own confession cannot be had; and apart from a confession they can be proved only by circumstantial evidence. In other words, they are matters for inference from all the circumstances of the case such as the motive, the preparations made, the declarations of the offender, and, in the case of homicide, the weapon used, the persistence of the assault, and the nature of the injuries actually inflicted as also their location. In the case of what are generally described as unpremeditated offences or as offences committed on the spur of the moment, intention may be contemporaneous with the physical act, at best of just an instant before, and is generally to be gathered from the nature and consequences of the act and the attendant circumstances. It is here that the much criticised maxim that every man is presumed to intend the natural and probable consequences of his act comes into play.

16.Like most words, the word "intention" is capable of different shades of meaning. In the Indian Penal Code it is used in relation to the consequences of an act, the effect caused thereby, not in relation to the act itselfthe voluntariness required to constitute an act is implied by that very word. Thus, in the case of murder. the intention required is (omitting clause secondly of Section 300 which rarely comes into play) the intention of causing death or the intention of causing bodily injury sufficient in the ordinary course of nature to cause death, more or less the malice aforethought of the English law, the former being generally described as specific intent or malice and the latter as implied malice or some times as constructive malice, though the use of the latter term seems open to criticism. It seems to us clear from the illustrations to Sections 88, Page 6 of 17 R/SCR.A/1098/2015 ORDER 89 and 92, that the Code uses the word "intention", in the sense that something is intentionally done if it is done deliberately or purposely, in other words, is a willed though not necessarily a desired result or a result which is the purpose of the deed. The surgeon of the illustrations certainly does not desire the harm that may be caused; nor is that his purpose. Nevertheless, the provisions of the sections show that he could have intended the harm, and is saved from being a criminal only by those provisions. Likewise a man who shoots another in the heart and kills him in selfdefence might not desire, on the contrary might very much dislike, causing the latter's death. His purpose is not to cause death but to save himself. Yet his case falls squarely within the first clause of Section 300 he has undoubtedly caused death by doing an act with the intention of causing deathand is saved from being a murderer only by Section 100.

Lang v. Lang 1955 AC 402 rather than Rex v. Steane 1947 KB 997 at p. 1004 or Hosegood v. Hosegood, (1950) 66 TLR 735 illustrates the sense in which the word, intention is used in Section 300 of the Indian Penal Code of course none of these cases was construing that statute. And, once you dispense with desire or purpose, it follows that foresight of the consequences of an act gains the upper hand in determining whether the consequences were intended or not. And the foresight of a particular person is prima facie to be gauged by the foresight of an ordinary, reasonable man. in other words, by what is sometimes disparagingly referred to as the objective test or external standas if that were enough to condemn itof the reasonable and probable consequences of the act.

7. Illustration (a) to Section 106 of the Evidence Act shows that the intention with which a person does an act is generally to be gathered from the character and circumstances of the act It says that:

"When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him".

An inference drawn from the character and circumstances of the act is sufficient proof of intention. Thus, if a man uses a knife on another so as to pierce the latter's heart and kill him, the character and circumstances of his act would suggest that he intended to kill him, for, death is the natural and probable, nay, the wellnigh certain, result of such an act. But a surgeon doing this could readily rebut this inference by showing that he did this not with the intention of causing death but with the intention of curing the man of a dangerous disease. Nevertheless the surgeon would still have Page 7 of 17 R/SCR.A/1098/2015 ORDER intentionally caused 'hurt, and can even be said to have intentionally caused bodily injury sufficient in the ordinary course of nature to cause death, and as we have already said, is saved from penal consequences only by reason of the exception in Section 88 of the Code.

18. The maxim to which we have referred, namely, that every person is presumed to intend the natural and probable consequences of his act, is sometimes expressed as if it embodied something thing more than a permissible inference, something more than the "may presume" of Sections 4 and 114 of the Evidence Act, or at the worst the "shall presume" of Section 4, and created an irrebuttable presumption, the "conclusive proof of Section 4. A form in which it is thus expressed is that every person must be presumed to intend the natural, reasonable, and probable consequences of his acts whether in fact he intended them or not. In this form it is certainly objectionable and it is the belief, some would have it in the mistaken belief, that it was countenanced in this form by the House of Lords in Director of Public Prosecutions v. Smith, 1961 AC 290 as if the mens rea for murder were not the intention in the mind of the alleged offender, but were the foresight of a reasonable man of the likelihood of death, that that decision has come in for so much adverse criticism from quarters both academic and professional. And it is to the maxim in this objectionable, form, "must be taken to intend" that Wallis C. J. took exception when, basing himself on paragraph 100 of the first report on the Penal Code by the Indian Law Commissioners; he observed in Vullappa v. Bheema Row, ILR 41 Mad 156 at p. 162 : (AIR 1918 Mad 136 (2) at p. 139) (FB) that Macaulay and the other Indian Law Commissioners regarded the maxim as a fiction which should not be recognised in the Penal Code. But surely that the Code draws a clear distinction between "intent" and "knowledge of likelihood" is no impediment to the latter leading to an inference regarding the former, or to same circumstance leading to an inference regarding both.

19. But properly viewed, namely as a mere objective test enabling a rebuttable inference to be drawn regarding the mental element attending an act, we think that the maxim is not merely unexceptionable but indispensable. The whole difficulty it seems to us arises from, to borrow the words of Bowen L. J. in Angus v. Clifford, 18212 Ch D 441, confusing the evidence from which an inference may be drawn with the inference itself which has to be drawn after you have weighed all the evidence. In this connection the following classic statement by Sir William Holdsworth in the History of the English Law, Vol. III, page 374 is worth quoting:

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R/SCR.A/1098/2015 ORDER "The general rule of the common law is that crime cannot be imputed to a man without mens rea. It is, of course, quite another question how the existence of that mens rea is to be established. The thought of man is not triable by direct evidence; but if the law grounds liability upon intent, it must endeavour to establish it by circumstantial evidence. Much of that circumstantial evidence will be directed to showing that a man of ordinary ability, situated as the accused was situated, and having his means of knowledge, would not have acted as he acted without having that mens rea which it is sought to impute to him. In other words, we must adopt an external standard in adjudicating upon the weight of evidence adduced to prove or disprove mens rea. That of course, does not mean that the law bases criminal liability upon an external standard. So to argue is to confuse the evidence for a proposition with the proposition proved by that evidence".

20. Perhaps, in Indian Law, the objective test of the maxim would cover every degree of mens rea from negligence to intention, depending on the degree of probability of the consequences. If the effect caused by an act is the natural and probable consequence of that act it would, we think, be right to infer that the actor caused that effect voluntarily as that word is defined in Section 39 of the Code. If the degree of probability is so low so that the effect cannot be described as a natural and probable consequence, the inference to be drawn might only be of negligence or rashness; little higher it might be that the actor had reason to believe that he was likely to cause the effect; still higher it would be reasonable to infer that he knew that he was likely to cause it; and if the degree of probability is so high that the effect may be described not merely as a probable but as a natural, natural in the sense ordinary result of the act it would be reasonable to infer that he intended to cause it. It might be noted that it is on the high degree of probability of the effect of death that the intention or knowledge (to be inferred from, among other things, the natural and probable consequences of the act) of clauses secondly, thirdly and fourthly of Section 300 are equated with intention to cause death of the first clause.

21. So far as the English Law is concerned, Section 8 of the Criminal Justice Act of 1967 applies the necessary corrective to the grossness of the rule supposed to have been laid down in 1961 AC

290. This section provides that "A Court or jury in determining whether a person has committed an offence.

(a) shall not be bound in law to infer that he intended or foresaw a result of his actions by reason only of its being a natural and Page 9 of 17 R/SCR.A/1098/2015 ORDER probable consequences of those actions; but

(b) shall decide whether he did intend or foresee that result by reference to all the evidence, drawing such inference from the evidence as appear, proper in the circumstances".

That is a statement of the law which we would adopt. The natural and probable consequences of a man's act is only one of the factors from which his intention as to the result may be gathered. It is no doubt a very important factor and might sometimes be the only available factor from which the inference of intention is to be drawn. Still, there is no "must" about it, only "may" and the Court is not bound in law to infer that a man intended the result of his actions by reason only of its being a natural and probable consequence of those actions. The intention is to be gathered from all the circumstances appearing in the evidence.

22. Much the same thing was said by Denning L. J. in 195066 TLR 735 with reference to the animus deserendi, in other words, the intent to bring the married life to an end, necessary to constitute desertion for the purpose of divorce.

"When people say that a man must be taken to intend the natural consequences of his acts, they fall into error; there is no 'must' about it; it is only 'may'. The presumption of intention is not a proposition of law but a proposition of ordinary good sense. It means this: that as a man is usually able to foresee what are the natural consequences of his acts, so it is, as a rule, reasonable to infer that he did foresee and intend them. But, while that is an inference which may be drawn, it is not one which must be drawn. If on all the facts of the case it is not the correct inference then it should not be drawn".

In their book on Criminal Law, Geanville Williams, one of the foremost critics of 1961 AC 290 and Smith and Mogan themselves no admirers of that decision, regard this as a clear exposition of the true place and value of the presumption in the proof of intention. Denning L. J. then thought (as he later, in the light of 1955 AC 402, confessed, mistakenly) that intent in the context of desertion meant that the party must have the desire or purpose to bring the married life to an end. But, as we have seen, neither the desire nor the purpose to bring about the consequences is necessary to constitute intention within the meaning of Section 300 of the Indian Penal Code. With regard to what we might call this lesser intention the presumption to be drawn from the natural and probable consequences of the act is stronger.

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23. In English law, in order to constitute the offence of attempt to murder, the specific intent to cause death is necessary though for the completed offence of murder the lesser mens rea of intent to cause grievous bodily harm suffices. What might be called the implied or constructive intent to cause death of clauses secondly, thirdly and fourthly of Section 300 of our Code is not enough. But, in Indian law, Section 307 of the Code makes it quite clear that the mental element described in any of the four clauses of Section 300 is sufficient and that it is not necessary that the act should have been done with the specific intention of causing death. This difference should not be overlooked. We should not have thought it necessary to voice this caution but that we find that in some Indian decisions and in some commentaries on the Code, English cases are cited to make out that the specific intent to kill is necessary without noticing that Section 307 of the Indian Penal Code lays down the law differently."

The above is the correct statement of law.

29. I may also quote with profit the decision of the Supreme Court in the case of State of Maharashtra vs. Balram Bama Patil, AIR 1983 SC 305. The observations made in paragraphs 9 and 10 are as under:

"9. Shri Rana appearing for the State strenuously contended that the High Court has committed a grave error in holding that the offence under Section 307, I. P. C. was not made out merely because the injuries inflicted on the witnesses were in the nature of a simple hurt and in these circumstances it is not possible to hold any of the accused persons guilty in respect of that offence. We find considerable force in this contention. A bare perusal of Section 307, I. P. C. would show that the reasons given by the High Court for acquitting the accused of the offence under Section 307 were not tenable. Section 307, I. P. C. reads :

"Whoever does any act with such intention or knowledge and under such circumstances that, if he by that act caused death, be would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; andif hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned."

To justify a conviction under this section it is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other Page 11 of 17 R/SCR.A/1098/2015 ORDER circumstances, and may even, in some cases be ascertained without any reference at all to actual wounds. The section makes a distinction between an act of the accused and its result, if any. Such an act may not be attended by any result so far as the person assaulted is concerned, but still there may be cases in which the culprit would be liable under this section. It is not necessary that the injury actually caused to the victim of the assault should be sufficient under ordinary circumstances to cause the death of the person assaulted. What the Court has to see is whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in this section. An. attempt in order to be criminal need not be the penultimate act. It is sufficient in law, if there is present an intent coupled with some overt act in execution thereof.

10. The High Court, in our opinion, was not correct in acquitting the accused of the charge under Section 307, I. P. C. merely because the injuries inflicted on the victims were in the nature of a simple hurt. Therefore, that part of the judgment of the High Court acquitting the accused Nos. 1, 2 and 11 of the offence under Section 307, I. P. C. cannot be sustained and must be set aside.They have, however, already served out sentence of imprisonment for two years for the offence under Sections 147 and 148, I. P. C. in pursuance of the order of the High Court. When the State filed an appeal against them they were arrested again and had to remain in jail for three months before they could be released on bail. Thus, they have already served a sentence of two years, three months. In the circumstances the ends of justice should be met if the sentence is limited to the period already undergone."

30. Thus, the aforenoted decision of the Supreme Court makes it very clear that merely because the injuries inflicted on the victims are found to be simple in nature by itself can never be a ground to acquit the accused of the offence under section 307 of the Indian Penal Code. However, the nature of the injury actually caused would definitely provide considerable assistance in coming to a finding as to the intention of the accused.

31. Therefore, everything boils down to "intention and knowledge. The learned APP invited my attention to a decision of the Supreme Court in the case of Bejoy Chand vs. State of West Bengal, AIR 1952 SC 105 and submitted that where the accused is charged under section 307, Penal Code, he may be convicted under sections 323, 324 and 325 as the case may be even in the absence of a charge in respect of it, if on thefacts of the case he could be charged alternatively under sections 307 and 326 IPC. The sum and substance of the submission of the learned APP is that if the charge is under section 307, the accused could be convicted for a lesser offence even in the absence of such charge, but if a charge is framed of a Page 12 of 17 R/SCR.A/1098/2015 ORDER lesser offence, than the Court concerned would not be in a position to convict the accused of a graver offence like 307 IPC. Well, I am not impressed by such submission because it comes to this that in all cases, the trial court should frame the charge of the graver offence only as an abundant caution and ultimately if not established, than convict the accused of the lesser offence. That is not the correct way of looking at the matter. This is the reason why I am laying much emphasis on the fact that the police should bear in mind the fine distinction between the offence under sections 323, 324, 325, 326 and 307 of the IPC. For such purpose, the guiding factors would be the nature of the weapon used, the place where the injuries were inflicted, the nature of the injuries caused and the opportunity available which the accused gets.

32. Having considered the position of law as discussed above, could it be said that the accusedapplicants had the requisite intention or knowledge so as to try them for the offence under section 307 of the IPC. To answer this question, at times, the Court may have to sift the evidence. Although the papers of the chargesheet would throw some light in this regard, yet, ultimately, it is for the Court concerned to appreciate this aspect by considering the evidence which the prosecution and the defence may adduce during the trial.

33. The law governing the trial of criminal offences provides for alteration of charges at any stage of the proceedings depending upon the evidence adduced in the case. If the trial is being held before a Court of Magistrate it is open to that court at any stage of trial if it comes to the conclusion that the material on record indicates the commission of an offence which requires to be tried by a superior court, it can always do so by committing such case for further trial to a superior court as contemplated in the Code of Criminal Procedure (the Code). On the contrary, if the trial is being conducted in a superior court like the Sessions Court and if that court comes to the conclusion that the evidence produced in the said trial makes out a lesser offence than the one with which the accused is charged, it is always open to that court based on evidence to convict such accused for a lesser offence. Thus, arguments regarding the framing of a proper charge are best left to be decided by the trial court at an appropriate stage of the trial. Otherwise as has happened in this case proceedings get protracted by the intervention of the superior courts (see Criminal Appeal No.1508 of 2003 reported in AIR 2004 SC 1189).

34. In fact the Supreme Court has not approved such exercise to be undertaken by the High Court while entertaining a petition under section 482 of the Code. The Supreme Court in the case of State of Maharashtra vs. Salman Salimkhan & Anr. (supra), had the occasion to consider an identical issue. In the said case, the respondent was originally charged of an offence punishable under section 304A, 279, 337, 338, 427, IPC and section 134(a)(b) read with sections 181 and 185 of the Motor Vehicles Page 13 of 17 R/SCR.A/1098/2015 ORDER Act, 1998 as also under section 66(1)(b) of the Bombay Prohibition Act. All these offences are triable by a court of Magistrate of competent jurisdiction. The chargesheet, at a later stage, came to be modified based on the additional statement of th complainant, and instead of section 304 A, IPC, section 304, Part II, IPC was substituted which is an offence exclusively triable by a Court of Session. The learned Magistrate, who had taken cognizance of the offence, committed the said case to the Court of Session for trial. On the framing of the charge under section 304, Part II, IPC, the accused filed Criminal Application No.463 of 2003 in the Court of Session alleging that the facts as narrated in the complaint did not constitute an offence punishable under section 304, Part II, IPC and if at all, only a charge for an offence punishable under section 304A could be framed against him, apart from other offences triable by the Court of Magistrate. The said application came to be rejected by the Sessions Court and the Sessions Judge, thereafter, proceeded to frame charges, one of which, was for an offence punishable under section 304, Part II, IPC.

35. Being aggrieved by the dismissal of his application and the consequential framing of charge under section 304, Part II, IPC, the accused preferred a criminal application under section 482 of the Code before the Criminal Appellate Bench of the High Court of Judicature at Bombay. The High Court allowed the said application and quashed the order passed by the learned Sessions Judge framing charge under section 304, Part II, IPC against the accused while it maintained the other charges and directed the Magistrate to frame de novo charges under various sections including one under section 304A, IPC.

36. The State of Maharashtra, feeling dissatisfied, filed special leave petition before the Supreme Court and challenged the order passed by the High Court. The Supreme Court made the following observations:

"Mr. Harish N Salve, learned senior counsel representing the respondentaccused, per contra, contended that from a plain reading of the complaint which is the only material available at this stage for the purpose of framing charges, no reasonable person could ever have come to the conclusion that the respondent ever had any knowledge that by his act of driving the motor vehicle, he would cause such an act which would lead to the death of any person. He further submitted that from the material on record itself it is clear that if at all any act of the respondent is responsible for the death of the victim same cannot be termed anything other than a rash and negligent act punishable under section 304A. Learned senior counsel further submitted that since the learned Sessions Judge while rejecting the application of the petitioner filed before it in altering the charge from section 304 Part II to 304A, IPC, had itself passed a lengthy order which indicated that the said court had formed a conclusive opinion as to the nature of offence which Page 14 of 17 R/SCR.A/1098/2015 ORDER definitely would have prejudiced the case of the respondent in the trial, the High Court was left with no choice but to decide this question as to the nature of offence if at all committed by the respondent.

But for the fact that two courts below i.e. the Sessions Court and the High Court having gone into this issue at length and having expressed almost a conclusive opinion as to the nature of offence, we would not have interfered with the impugned order of the High Court because, as stated above, neither of the sides would have been in any manner prejudiced in the trial by framing of a charge either under section 304A or section 304 Part II, IPC except for the fact that the forum trying the charge might have been different, which by itself, in our opinion, would not cause any prejudice. This is because at any stage of the trial it would have been open to the concerned court to have altered the charge appropriately depending on the material that is brought before it in the form of evidence. But now by virtue of the impugned judgment of the High Court even if in the course of the trial the Magistrate were to come tothe conclusion that there is sufficient material to charge the respondent for a more serious offence than the one punishable under section 304A, it will not be possible for it to pass appropriate order. To that extent the prosecution case gets preempted.

We are of the opinion that though it is open to a High Court entertaining a petition under section 482 of the Code to quash charges framed by the trial court, same cannot be done by weighing the correctness or sufficiency of evidence. In a case praying for quashing of the charge, the principle to be adopted by the High Court should be that if the entire evidence produced by the prosecution is to be believed, would it constitute an offence or not. The truthfulness, the sufficiency and acceptability of the material produced at the time of framing of charge can be done only at the stage of trial. By relying upon the decisions of the apex Court most of which were with reference to appeals arising out of convictions, we think the High Court was not justified in this case in giving a finding as to the nonexistence of material to frame a charge for an offence punishable under section 304 Part II, IPC, therefore, so far as the finding given by the High Court is concerned, we are satisfied that it is too premature a finding and ought not to have been given at this stage. At the same time we are also in agreement with the arguments of learned counsel for the respondents that even the Sessions Court ought not to have expressed its views in such certain terms which indicates that the Sessions Court had taken a final decision in regard to the material to establish a charge punishable under section 304 Part II, IPC.

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R/SCR.A/1098/2015 ORDER Therefore, we think it appropriate that the findings in regard to the sufficiency or otherwise of the material to frame a charge punishable under section 304, Part II, IPC of both the courts below should be set aside and it should be left to be decided by the court trying the offence to alter or modify any such charge at an appropriate stage based on material produced by way of evidence.

The next question which then requires our consideration is whether in view of our above finding, the charge framed by the Sessions Judge for an offence punishable under section 304 Part II, IPC be sustained or one under section 304A as has been done by the High Court, should be retained ?

We have been informed that pursuant to the judgment of the High Court, the Metropolitan Magistrate, 12th Court, Bandra, Mumbai, has already framed fresh charges under section 304A and other provisions mentioned hereinabove and the trial has commenced. Since any interference at this stage would not further the cause of justice and would lead only to delay the course of justice, we think it appropriate that the proceedings before the said Magistrate's Court should continue and the trial should proceed on the basis of the charges framed by it but we make it very clear that at any appropriate stage if the Magistrate comes to the conclusion that there is sufficient material to charge the respondent for a more serious offence than the one punishable under section 304A, he shall proceed to do so without in any manner being hindered or influenced by the observations or findings of the High Court in the impugned order or by the order of the Sessions Court which framed the charge punishable under section 304 Part II, IPC. Such decision of the Magistrate shall be purely based on the material brought in evidence at the trial."

37. In the facts and circumstances of the case, it would be too premature to arrive at any decision whether the accusedapplicants had the requisite intention or knowledge. Ultimately, on overall appreciation of the entire evidence, the trial court will have to take an appropriate decision in that regard. To observe anything at this stage can cause serious prejudice to the accused as well as to the prosecution. The Court must remain on guard in the cases of the present type."

9. In the result, this application fails and is hereby rejected.

10. It goes without saying that no observations touching the merits of the case are purely for the purpose of deciding the question whether the accusedapplicants should face the charge of the offence under Section Page 16 of 17 R/SCR.A/1098/2015 ORDER 307 of the IPC or not.

11. None of the observation made in this order shall be construed as an expression of the final opinion of the main matter. Ultimate innocence or guilt of the accused persons including the fact whether Section 307 is made out or not shall be decided by the trial court strictly on the basis of the evidence that may be led by both the sides at the time of the trial.

(J.B.PARDIWALA, J.) ali Page 17 of 17

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Gujarat High Court