Gujarat High Court
Vismay Amitbhai Shah vs State
Author: G. Shah
Bench: S. G. Shah, G. Shah
VISMAY AMITBHAI SHAH....Applicant(s)V/SSTATE OF GUJARAT....Respondent(s) R/CR.RA/540/2013 CAV JUDGEMNT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL REVISION APPLICATION (AGAINST ORDER PASSED BY SUBORDINATE COURT) NO.
540 of 2013 FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE S.G.SHAH ============================================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment?2
To be referred to the Reporter or not?3
Whether their Lordships wish to see the fair copy of the judgment?4
Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made there under?5
Whether it is to be circulated to the civil judge?
============================================================== VISMAY AMITBHAI SHAH ....Applicant(s) Versus STATE OF GUJARAT ....Respondent(s) ============================================================== Appearance:
MR.
BHADRISH S RAJU, ADVOCATE for the Applicant MS JIRGA JHAVERI, ADDL. PUBLIC PROSECUTOR for Respondent ============================================================== CORAM:
HONOURABLE MR. JUSTICE S. G. SHAH Date:
11/09/2013 CAV JUDGEMNT Preface:
............................................................................................................4 Applicant s Case:
.............................................................................................6 Submission by Respondent:
..........................................................................11 Discussion for determination:
........................................................................12
1)AIR 2012 SC 3104: (2012(8) SCC 450 - State Tr. P. S. Lodhi Colony, New Delhi v. Sanjeev Nanda .....................................................................21
2)AIR 2012 SC 3802 : (2012) 2 SCC 648 - Alister Anthony Pareira v. State of Maharstra ...............................................................................................21
3)AIR 2004 SC 1189: (2004) (1) SCC 525 -State of Maharashtra v. Salman Salim Khan ................................................................................................30
4)(2005) 2 SCC 686, M. P. Lohia v. State of West Bengal ........................35
5)(2005) 13 SCC 174Hitesh Verma vs. State of Jharkhand .....................35
Citations referred by the applicant:
................................................................42
1)1972 (3) SCC 282, Century Spinning and Manufacturing Co. Ltd. vs. State of Maharashtra:
.................................................................................44
2)1977 (2) SCC 699, State of Karnataka vs. L. Muniswamy:
.....................46
3)(1979) 3 SCC 4, Union of India vs. Prafulla Kumar Samal:
...................48
4)2002 (2) SCC 135, Dilawar Balu Kurane vs. State of Maharashtra: .......51
5)AIR 2008 SC 2991, Yogesh @ Sachin Jagdish Joshi vs. State of Maharashtra:...............................................................................................53
6)AIR 2010 SC 663, P. Vijayan vs. State of Kerala:
..................................54 Citations referred by the respondent:.......................................................... ...58
1)2010 (9) SCC 368, Sajjan Kumar vs. Central Bureau of Investigation:.. 58
2)2008 (5) SCC 113 Hem Chand vs. State of Jharkhand:
.........................59
3)2011(11) SCC 556 = AIR 2012 SC 943, Tej Bir v. State of Haryana:..... 60
4)199(8) SCC 741 = AIR 1999 SC 3845, State of U.P. vs. Udai Narayan: 62
5)2012 (8) SCC 450 = AIR 2012 SC 3104, State thro. P.S.Lodhy Colony vs. Sanjeev Nanda:
....................................................................................62
6)AIR 2000 SC 665 = 2000 SCC(2) 57 : State of MP vs. SB Johari - ........63 Other citations on the subject of discharge of accused u/s 227 of the Code: 64
1)AIR 1980 SC 52 : Supdt. and Remembrance of Legal Affairs, West Bengal vs. Anil Kumar Bhunja,............................................ 64
2)AIR 1987 SC 773 : State Of Himachal Pradesh Vs. Krishan Lal Pardhan .................................................................................64
3)AIR 1990 SC 1869 : Niranjan Singh K.S. Punjabi v.
Jitendra Bhimraj Bijjaya, ...........................................................................64
4)AIR 1996 SC 1744 : State of Maharashtra and Ors. v. Som Nath Thapa and Ors., ................................................................................64
5)AIR 1997 SC 2041 : State of Maharashtra vs. Priya Sharan Maharaj, .........................................................................................64
6)AIR 2000 SC 665 : State of MP vs. SB Johari , .....................................64
7)AIR 2000 SC 2583 : State of M.P. v. Mohanlal Soni, ............................64
8)AIR 2001 SC 1507 : Om Wati vs. State, ............................................... 64
9)AIR 2005 SC 359 : State of Orissa vs. Debendra Nath Padhi, .........................................................................................................64
10)AIR 2007 SC 2149 : Soma Chakravarty v.
State................................. 64
11)AIR 2010 SC 663 : P. Vijayan v. State of Kerala and Anr., ................64
12)AIR 2011 SC 1103 : R.S. Mishra v. State of Orissa ............................ 64
13)AIR 2013 SC633 : Ajay Kumar Parmar v. State of Rajasthan ...................................................................................................64 Determination and Conclusion:
......................................................................71 Preface:
1. Rule.
By consent of parties, the matter is being finally disposed off at the admission stage as applicant is in judicial custody. Heard the learned Counsel for the parties.
2. Applicant has challenged an order dated 14.08.2013 passed below Exhibit 2 in Criminal Case No. 41 of 2013, under Section 397 read with Section 401 of the Code of Criminal Procedure (for short the Code ). Such impugned order is passed by the 6th Additional Sessions Judge, Ahmedabad (Rural) at Mirzapur, Ahmedabad below an application under Section 227 of the Code, whereby applicant has prayed to discharge him from the charges levied against him pursuant to FIR being C.R. No. I 79 of 2013, registered with Vastrapur Police Station of Ahmedabad City on 25.02.2013. Inquiry Officer has, after inquiring the incident alleged in the complaint dated 25.02.2013 by one Lalit Rajeshbhai Gupta regarding death of two persons on Judges Bunglow Road in Vastrapur area of Ahmedabad by one BMW car bearing registration No. CH 1 AE 9630, filed a charge sheet on 12.04.2013 under Section 279, 304(II) and 427 of the Indian Penal Code as well as under Section 134 (1) (B), 177 and 184 of the Motor Vehicles Act. It is alleged in the FIR and charge-sheet that applicant has driven his car in high speed in the city area and hit initially to one Accent car and then Motorcycle of victims and thereafter dashed his car with road side tree. It is further alleged that while driving such vehicle as aforesaid, applicant has caused death of two persons who were riding on Motorcycle and that even after committing such accident in the city area, applicant accused had ran away from the place of incident and failed to take steps as a prudent man in accordance with law.
3. The record shows that applicant has filed several applications for releasing him on bail. However, all the Courts including Sessions Court, this High Court [Coram: Hon ble Mr Justice A S Dave] as well as Honourable the Supreme Court has refused to grant bail to him for the charges under Sections 279 read with Section 304 (II), wherein maximum punishment prescribed is 10 years.
4. As right to get bail and right to get discharge are to be decided on different footing and though it has no direct nexus, one thing remains on record that in the present case though maximum punishment would be under Section 304(II) only, even Honourable Apex Court has dismissed the prayer to release the applicant on bail and therefore at present applicant is in judicial custody and hence Revision Application is filed through Central Jail, Ahmedabad. This is one of the reasons to take up the matter for early hearing.
Applicant s Case:
5. Learned Counsel Mr. J. M. Panchal appearing on behalf of learned advocate Mr. B. S. Raju has argued at length and in detail. The sum and substance of the submissions by the applicant are recorded herein under;
(i) Learned counsel Mr. Panchal has argued that prima-facie there is no substance in the FIR so as to frame charge under Section 304 (II) for culpable homicide and according to him, even charge under Section 279 read with other relevant sections as well as Section 304 (A) are also not tenable, considering the factual details and evidence collected by the Investigating Officer and produced with the charge-sheet.
(ii) To understand the incident, it is submitted that according to FIR and charge-sheet applicant was driving his car at high speed i.e. almost for 110 kms/hr. on Judges Bungalow Road at Midnight of 24.02.2013 and hits, barged & toss the Motorcycle of the victims resulting into death of both the persons riding Motorcycle at the relevant time. It is submitted that on such Judges Bungalow Road, there are several cross roads and three roads junctions and there was traffic on the road, therefore, rash and speedy driving is not possible. It is also contended that as per the allegations in the charge-sheet, applicant has initially hit one Accent car and then toss the Motorcycle of the victims and thereafter on filing of complaint, initially police has registered the FIR only under Section 134 A of the M.V. Act and 338 of the Indian Penal Code, but later on even in absence of any cogent evidence, added Section 304 (II) of the Code.
(iii) It is further submitted that at such stage of considering discharge application, accused has not to put forward his evidence, as it cannot be evaluated at such stage and only evidence by the prosecution can be scrutinized so as to come to the conclusion regarding commission of any offence. Therefore, applicant is praying to discharge, relying upon the papers/evidence submitted with the charge-sheet.
(iv) Learned counsel for the applicant has mainly relied upon the CCTV footage, which is part of the charge-sheet and copy of which is produced in this Revision Application in form of CD Rom. According to applicant, on perusal of such CCTV footage from CD Rom, it is clear that practically victims were coming from wrong side at the place of incident and therefore actually they hit the car of the applicant coming from wrong side and hence even if allegations in the FIR and charge-sheet are believed, as it is, then also charges can be levied only under Section 279 read with Section 304(A) of the Indian Penal Code, since in absence of knowledge and intention, there cannot be charges under Section 304(II).
(v) It is further submitted that since CCTV footage is taken on record from the custody of independent witness Rameshbhai Khimjibhai Rathod of nearby shop namely Laxmi Ganthia Rath and when such recording is taken in due course in CCTV camera installed at such shop and when such evidence is part of the charge-sheet, now prosecution cannot dehors such conclusive and decisive evidence which discloses the accurate pictures of the incident that victims had entered into three road junction taking sharp turn without giving any signal when other two vehicles, one car and even complainant s scooter, have stopped at the junction of three roads. It is therefore submitted that since deceased victim has taken sudden sharp turn and at that relevant time when applicant was coming from opposite direction, incident was accident only and not culpable homicide by the applicant so as to frame charge under Section 304(II) of the IPC.
(vi) Based upon such factual submissions, learned counsel has challenged the impugned order submitting that trial Court has erred in observing and thereby holding in para 10 of the impugned order that accused can defend the charge based upon CCTV footage during the trial and that such prima-facie evidence in favour of the accused cannot be taken into consideration so as to discharge him from the charges levied against him.
(vii) It is further submitted that even if it is presumed that applicant was driving the vehicle at high speed, that high speed alone cannot convert allegations and charges under Section 279 read with Section 304 (A) into charges under Section 304(II). It is also submitted that since applicant s car is having facility of airbag, it was immediately in action after the impact of vehicle and FSL report confirms such fact and thereby applicant is not injured only because of airbag, therefore it cannot be said that when victim had received fatal injuries, it is culpable homicide on the part of the applicant.
(viii) It is also submitted that allegations regarding ran away of the applicant has no substance in as much as he has appeared before the police on his own immediately on 27.02.2013. It is submitted that even if it is believed that applicant has left away or ran away the place of incident, at the most charges under Section 177 of the Motor Vehicles Act can be levied. It is further submitted that thereby there is no evidence or material on record to frame the charge under Section 304(II).
(ix) It is also submitted that though the Panchnama of place of incident discloses the break marks on road, the trial Court has stated that there are no break mark and therefore there is non-application of mind.
(x) It is further submitted that this case has got unnecessary vide publicity and it becomes media trial and therefore applicant is requesting for an order based upon the facts and circumstances as well as law applicable to such condition and thereby to discharge the applicant.
(xi) Learned counsel has also relied upon the judgment delivered in the case of Rajkumar vs. State of Himachal Pradesh reported in (2008) 11 SCC 76 and Ravi Kumar vs. State of Rajasthan reported in (2012) 9 SCC 284 to show that death of two or even eight persons in vehicular accident would not attracts charges under Section 304 (II). Submission by Respondent:
6. As against that, learned APP Ms. Jirga Jhaveri has relied upon following judgments in support of impugned order on several grounds, amongst which main grounds are, (1) conduct of the applicant as he has surrendered late and failed to discharge his duties, (2) scope under Section 227 of the Code regarding discharge of accused and revision against such order, and (3) evidence on record of the trial Court, submitting that it is sufficient enough to frame charge under Section 304(II).
2010(9) SCC 368: Sajjan Kumar vs. Central Bureau of Investigation 2008(5) SCC 113: Hem Chand vs. State of Jharkhand 2011(11) SCC 556: Tej Bir & Anr vs. State of Haryana & Anr 1999(8) SCC 741: State of Uttar Pradesh vs. Udainarayan & Another 2012(8) SCC 450: Sanjeev Nanda vs. 2000(2) SCC 57: State of Madhya Pradesh vs. S.B.Johri & Ors.
2005(2) SCC 686: M.P.Lohia vs. State of West Bengal 2005(13) SCC 174: Hitesh Verma vs. State of Jharkhand Discussion for determination:
7. Discussion, determination and evaluation of other submissions and evidence on record may affect the final trial and therefore this Court has to refrain to discuss other evidence on record. However, it would be necessary to answer the issues which are raised and argued by the learned counsel for the applicant so as to come to definite conclusion.
8. Since applicant has produced only impugned order with some photographs from CCTV footage and it s CD Rom, both parties were asked to produce relevant documents of charge-sheet and in turn learned APP has handed over full set of charge-sheet. Perused Original charge-sheet papers and its photocopies are taken on record.
9. After thoughtful scrutiny of the application at Exhibit 2 in Criminal Case No. 41 of 2013 which was decided against the applicant by the impugned order dated 14.08.2013 with the averments in Revision Application and upon perusal of charge-sheet with police papers, it transpires that though this is a case of vehicular accident, it is not a simple and normal vehicular accident, wherein somebody injured or died due to such incident, but the record confirms and even applicant has admitted that accident has taken place in a city area having residential and commercial activities and that applicant was driving his car at the speed of more than 110 kms/hr., and after hitting one assent car, it has gone ahead and toss another two wheeler and dragged it for 100 steps i.e. almost 200 feet i.e. more than 60 meter before collusion with a road side tree. Thus one thing is clear and certain that, if there was no collusion with tree, the car would have gone further and may involved in some other incident also.
10. The statement of Mr. Miteshbhai Kiranbhai Shah, driver of Assent car, is also on record, which confirms that applicant has overtaken his car from his left side i.e. from wrong side and after hitting the Accent car, the applicant tried to run away in a high speed and while doing so applicant has commit another accident, which is the subject matter of present case, wherein Motorcycle was dragged for more than 100 steps i.e. almost 200 feet i.e. more than 60 meter and both the riders of the Motorcycle were thrown up in the air by the impact of the car and succumb to fatal injuries, which resulted into their death.
11. Therefore, even if we do not evaluate available record so as to come to any definite conclusion regarding guilt or innocence of the applicant against whom the charge-sheet is filed, it is certain and clear on record that applicant was driving his car in high speed. During investigation, such speed has been confirmed both by the competent authority of Regional Transport Office as well as looking to the damage to the vehicle, the supplier of the applicant s car, Parsoli Motors. The letter of Parsoli Motors, which is part of charge-sheet, confirms that car would have been at the speed between 110 to 120 kms/hr. To arrive at such conclusion a technician has checked the car with special diagnostic tool and find out that last vehicle engine speed (rmp rotation per minute) stored in the system of the car was 1732 rmp. Even report by Director of Fornsic Science has also confirmed from the CCTV footage that velocity (speed) of the car which hit the two wheeler was approximately 112 km/h.
12. From the submissions advanced by the learned counsel for the applicant, it has been clear that at least as an alternate argument, applicant admits the speed, impact and incident of accident in as it is manner.
Whereas only controversy is with reference to charge levied against, i.e. whether for such incident charges under Section 304(II) can be framed or not, for which conduct of the applicant is to be looked into.
13. Learned APP has solely relied upon the conduct of the applicant and relevant case law, whereas learned counsel for applicant has, considering the conduct, prayed to consider such act as punishable under Section 177 of the Motor Vehicles Act only. For such submission, it is to be noted that, practically it is only the conduct of the person which will otherwise proves mens rea, knowledge or intention, since for such issues otherwise there cannot be any direct or physical evidence. It always requires a presumption based upon nature of dispute and conduct of the accused.
14. Mens rea and negligence are both fault elements, which provide a basis for the imposition of liability in criminal cases. Mens rea focuses on the mental state of the accused and requires proof of a positive state of mind such as intent, recklessness or willful blindness. Negligence, on the other hand, measures the conduct of the accused on the basis of an objective standard, irrespective of the subjective mental state of the accused. Such difference is explained by the Hon ble Apex Court in the case of Assistant Commissioner v. Villiappa Textiles, (2003) 11 SCC 405 (436).
15. Therefore when witness Miteshbhai Kiranbhai Shah being driver of one another vehicle states that applicant has initially overtake his car from his left side i.e. wrong side and hits on left front of his car and even thereafter again continue to drive at the speed of 110 km/hr. i.e. at very high speed and that too in city area and thereupon hits and toss the victim motorcyclist resulting in to fatal accident and thereafter could not stopped for further 100 steps i.e. 200 feet i.e. more than 60 meter and even thereafter when he has simply said Sorry to the complainant and left the place of incident without offering any help to anyone, his conduct shows his mens rea and intention of not to help anybody including victims after driving the vehicle rashly on public way so as to endanger human life and therefore his knowledge or his anticipation of possibility of coming of Motorcycle from opposite direction is not material. So also it cannot be said that there was no intention or knowledge that somebody may be killed by such act. Thereby this is not a simple case of mere negligence or error of judgment while driving the vehicle.
16. When learned counsel for the applicant is arguing about the responsibilities of victims while entering into three road junctions, so as to cross the road where applicant was driving his vehicle, suffice to say that same principle would equally applies to the applicant also, that when he is entering into a junction of three roads and more particularly when 3rd road of his side and when he is approaching to such three roads junction by overtaking another vehicle from wrong side, it is his duty to slow down his vehicle so as to allow traffic in accordance with traffic rules. It is necessary to recollect that Rules of Road Regulations, 1989 framed under Section 118 of the Motor Vehicles Act, 1988 and Section 134 of the Act provides duties of the driver involved in accident, such as reporting the accident to the Police Station, rendering medical aid to the injured, etc., when accident is resulting into death or bodily injury to the person or damage to property of 3rd party and therefore when applicant has failed to follow such rules, there is a statutory negligence and breach of rule by applicant which certainly confirms mens rea, since while getting licence, applicant has undergone to study all such rules and details and has to clear basic test regarding knowledge of such rules and only after passing such test he was granted licence.
17. Provisions of the Motor Vehicles Act are recollected herein because even petitioner has relied upon and pleaded contents of Section 279 of the Indian Penal Code regarding rash driving on a public way. Section 134 of the Act provides for duty of driver in case of accident and injury to a person stating that when any person is injured as a result of an accident by motor vehicle, the driver of the vehicle or other person in charge of the vehicle shall take all reasonable steps to take injured by conveying him to the nearest medical practitioner or hospital. Therefore, when word 'shall' is used in Section 134, once a person has license to drive the vehicle in public place, it is his mandatory and statutory duty to follow such provision of law. In such cases where applicant - accused has remained away from the investigation for two days, it should be treated as not only a statutory negligence but also his knowledge that such act is likely to cause death which can be term as intention to cause death or injury which is likely to cause death. Such presumption can also consider with the charge, both under Section 279 as well as 304 (II), since applicant is driving his vehicle in public street and on public way in a manner so rash so as to endanger life. When a person is driving vehicle on a city road at a speed of 110 km/hr., it can certainly be considered that he is driving a vehicle with a knowledge that the accident would resulted into bodily injury or death or damage to property and such knowledge would resulted into mens rea and therefore arguments by the petitioner that there is no motive or intention to commit such an accident are baseless. It cannot be ignored that applicant had remain away from the investigation for two days, which gives grave suspicious about his position being drunken or otherwise.
18. The record also shows that there was a notification by the competent authority regarding speed limit in the area, which restricts thedriving of four wheeler beyond the speed of 60km/hr in the area and hence the applicant has violate such notification by driving the vehicle at higher speed (110km/hr) than the speed limit imposed under the Rules.
More over there is breach of certain rules. Regulation 8 of the Rules of the Road Regulations, 1989 confirms that driver of a motor vehicle shall slow down when approaching at a road intersection, a road junction, pedestrian crossing or a road corner, and shall not enter any such intersection, junction or crossing until he has become aware that he may do so without endangering the safety or persons thereon. Regulation 9 provides that the driver of the motor vehicle shall, on entering road intersection at which traffic is not being regulated, if the road entered is a main road designated as such, give way to the vehicles proceeding along that road, and in any other case give way to all traffic approaching the intersection on his right hand. Whereas Regulation 4 of the same Regulations provides that the driver of a motor vehicle shall pass to the right of all traffic proceeding in the same direction as himself. Therefore, applicant has failed to follow such regulation in all manner i.e. from overtaking a car from left side by driving vehicle in high speed, by not waiting while entering into three road junction and by not waiting at the place of incident after the incident has taken place. Therefore, in my view such conduct may put the case of the applicant differently than normal vehicular accident.
(i) AIR 2012 SC 3104: (2012(8) SCC 450 - State Tr. P. S. Lodhi Colony, New Delhi v. Sanjeev Nanda
(ii) AIR 2012 SC 3802 : (2012) 2 SCC 648 - Alister Anthony Pareira v. State of Maharstra
20. In two recent judgments, the Apex Court, after considering large number of judgments on the scope of Sections 299, 300, 304A, 304(I) and 304(II) of the IPC, came to the conclusion that each case obviously has to be decided on its own facts. In a case where negligence or rashness is the cause of death and nothing more, Section 304A may be attracted but where the rash or negligent act is preceded with the knowledge that such act is likely to cause death, Section 304, Part II, Indian Penal Code may be attracted and if such a rash and negligent act is preceded by real intention on the part of the wrong doer to cause death, offence may be punishable under Section 302, Indian Penal Code. Thereby while deciding that case of Alister Anthony Pareira (supra) where in charges under Section 304 (II) were confirmed and in the case of Sanjeev Nanda (supra) when trail court has confirmed the sentences under Section 304 Part (II) though charge was framed u/s 304 (A) and though High Court has converted the sentence under Section 304 (A), the Apex Court has, confirming the charges and sentence under Section 304 (II), allowed the appeal of the state; in following words:
39.
We are of the considered view that looking to the nature and manner in which accident had taken place, it can safely be held that he had no intention to cause death but certainly had the knowledge that his act may result in death.
40. Thus, looking to the matter from all angles, we have no doubt in our mind that knowledge can still be attributed to accused Sanjeev that his act might cause such bodily injuries which may, in ordinary course of nature, be sufficient to cause death but certainly he did not have any intention to cause death. He was not driving the vehicle with that intention. There is nothing to prove that he knew that a group of persons was standing on the road he was going to pass through. If that be so, there cannot be an intention to cause death or such bodily injury as is likely to cause death. Thus, in our opinion, he had committed an offence under Section 304, Part II IPC. We accordingly hold so.
x x x x x x x x x x x x
99. x x x x x x x x x The accused had sufficient knowledge that his action was likely to cause death and such an action would, in the facts and circumstances of this case fall under Section 304(II) of the IPC and the trial court has rightly held so and the High Court has committed an error in converting the offence to Section 304A of the IPC.
x x x x x x x x x x x x
106. The High Court, in our view, has committed an error in converting the conviction to Section 304A of the IPC from that of 304(II), IPC and the conviction awarded calls for a re-look on the basis of the facts already discussed, otherwise this Court will be setting a bad precedent and sending a wrong message to the public. After having found that the offence would fall under Section 304(II), IPC, not under Section 304A, the following sentence awarded would meet the ends of justice, in addition to the sentence already awarded by the High Court.
21. In above cited two cases, the Apex Court has dealt with the issue in details and referred almost 24 previous cases on diverse issues as well as different provisions of IPC and M V Act. Those cases were final appeal against conviction. Whereas I have to restrain from referring every details, for simple reason that at present we are concern with an application for discharge under Section 227 of Code, where entire evidence should not be churn so as to arrive at any specific conclusion regarding innocence or guilt of the applicant, but prima facie evidence and suspicious about commission of offence by the accused as alleged under the charge sheet are enough to frame charge. Since those ingredients are present in this case, there is no reason to interfere with the impugned order.
22. So far the death of two persons are concerned, reliance on cases of Rajkumar and Ravikumar (Supra) by the learned counsel is not material, because the fact remains that these both cases are of regular trial i.e. after considering the evidence on record and in both cases practically, Honourable the Apex Court has not interfered with the conviction order passed by the High Court, thereby in those cases the Apex Court has not to decide or arrived at a conclusion that whether the said act falls under provisions of Section 304A or 304 (II) I.P.C. The only factual details in both such cases that though there was a death of two and eight persons, the charge was not framed under Section 304 (II) would not help the applicant to plead and prove that therefore in any case of accident charge under Section 304 (II) can never be levied and framed. In my view the said judgments would not be relevant for the purpose of deciding the present issue as in those cases; the Apex Court had come to the said conclusion after the evidence was adduced by the prosecution.
23. The reasons and observation in the case of Ravi Kumar (supra) practically goes against the applicant, when Apex Court has categorically observed that; rash and negligent driving has to be examined in light of the facts and circumstances of a given case. It is a fact incapable of being construed or seen in isolation. It must be examined in light of the attendant circumstances. A person who drives a vehicle on the road is liable to be held responsible for the act as well as for the result. It may not be always possible to determine with reference to the speed of a vehicle whether a person was driving rashly and negligently. Both these acts presuppose an abnormal conduct. Even when one is driving a vehicle at a slow speed but recklessly and negligently, it would amount to 'rash and negligent driving' within the meaning of the language of Section 279 IPC. That is why the legislature in its wisdom has used the words 'manner so rash or negligent as to endanger human life'. The preliminary conditions, thus, are that
(a) it is the manner in which the vehicle is driven; (b) it be driven either rashly or negligently; and (c) such rash or negligent driving should be such as to endanger human life. Another parameter, applied is of 'reasonable care' in determining the question of negligence or contributory negligence. The doctrine of reasonable care imposes an obligation or a duty upon a person to care for the pedestrian on the road and this duty attains a higher degree when the pedestrian happen to be children of tender years. It is axiomatic to say that while driving a vehicle on a public way, there is an implicit duty cast on the drivers to see that their driving does not endanger the life of the right users of the road, may be either vehicular users or pedestrians. They are expected to take sufficient care to avoid danger to others. Still another principle that is pressed in aid by the Courts in such cases is the doctrine of res ipsa loquitur. This doctrine serves two purposes one that an accident may by its nature be more consistent with its being caused by negligence for which the opposite party is responsible than by any other causes and that in such a case, the mere fact of the accident is prima facie evidence of such negligence. Secondly, it is to avoid hardship in cases where the claimant is able to prove the accident but cannot prove how the accident occurred.
24. Therefore framing of charge in my opinion under particular section is solely depends upon evidence on record and not only on such factual details regarding number of death in any incident. Suffice to say that in a given incident there may be more than eight deaths when break of the public transport bus failed and when vehicle driver lost control of such vehicle, causes death of several persons. Therefore, the criteria for framing the charge will rest upon the reason and meaning of incident and not simply on number of victims.
25. Therefore, only point rest is with reference to evidence in the form of CCTV footage when applicant is heavily relied upon it, stating that victims have came on wrong side and that nobody can ignore such evidence which is otherwise conclusive and decisive piece of evidence, and that when it is produced by the prosecution , there is no reason for trial Court to ignore such evidence. It is true that CCTV footage is taken as a part of evidence in charge-sheet against the applicant by the prosecution and therefore they cannot go beyond such evidence. However, if such evidence is in favour of the applicant as it is argued by the learned counsel, practically all other evidence is against the applicant and therefore it cannot be said that only because one piece of evidence is in the favour of the applicant, the case may not be decided solely on such piece of evidence right from beginning i.e. right from the framing of charge, i.e. even before all other evidence including such evidence is proved on record.
26. I have gone through the recording of CCTV as produced on CD Rom with this application. As all other evidence which is yet to be produced and proved on record, this evidence is also yet to be proved on record though it is produced in physical form. Therefore, discussion, evaluation or determination of such evidence is also required to be avoided, which is settled legal position so far as consideration of section 227 of Code is concerned. Therefore, this piece of evidence prima facie proves the incident of accident as alleged in the FIR but it does not prove either innocence or guilt of the applicant and thus gravity of guilt cannot be decided only upon one piece of evidence. It is also to be considered that proof of such evidence is yet to be adduced on record and thereby though some thing seems to be invisible; it can be ascertained as final proof, which can be ascertained only after proper evidence is adduced on record and not at such preliminary stage of framing the charge.
Though evaluation or determination is to be restricted, since evidence in form of CCTV is otherwise not visible on record and when with reference to such footage it is argued to the effect that though colleague of the victim has stopped his vehicle, victim has not stopped, it is to be recollected here that it clearly appears in CCTV footage that one scooter, probably complainant was quite behind the victim and has stopped after the impact of applicant s car to the victim s Motorcycle and in fact Motorcycle of victim and its riders are clearly shown to be thrown in air by the impact of the car and therefore to that extent, it cannot be said that though colleague of the victim has stopped at three road junction, the victim has not stopped, because victim had no chance to stop and his college reached to the spot at least after couple of seconds and hence showing the incident, they had stopped. Thereby it cannot be concluded at present, as argued by the applicant, that accident was solely due to negligence of the victim and hence he should be discharge. Though as per settled legal position for such matters (deciding discharge application) discussion of evidence is to be avoided, when applicant is not only relying upon but discussing such evidence in his favour, the same is to be dealt with, and hence discussed herein above, to avoid further allegation that Court below has not applied its mind, but with an observation that whatever is observed in this judgment is solely for the purpose of disposal of this revision. Thereby the Trial Court shall proceed without in any manner being hindered or influenced by the observations in this judgment and its decision and final conclusion shall be purely based on the material brought in evidence at the trial.
28. AIR 2004 SC 1189: (2004) (1) SCC 525 -State of Maharashtra v. Salman Salim Khan In the case of State of Maharashtra vs. Salman Salim Khan and another, AIR 2004 SC 1189: (2004) (1) SCC 525, the Apex Court had an opportunity to deal with similar issue regarding framing of charge either under Section 304 (A) or 304 (II) for causing death by driving vehicle, where High Court has set aside the order of the Sessions Court to frame charge under Section 304 (II), but the Apex Court has, since trial has proceeded further by framing charge under Section 304 (A), just to avoid further delay observed and held that;
4. 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.
After discussing the details of that case and arguments by both sides, the Apex Court has held as under:
11. 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 304-A 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 to the conclusion that there is sufficient material to charge the respondent for a more serious offence than the one punishable under Section 304-A, it will not be possible for it to pass appropriate order. To that extent the prosecution case gets pre-empted.
12. 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 non-existence 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.
13. 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.
14. 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 304-A as has been done by the High Court, should be retained?
15.
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 304-A 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 304-A, 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.
16. We make it clear that neither by sustaining the order of the High Court in remitting the trial to the Court of Magistrate, nor by our observations in this judgment as to the acceptability or otherwise of the material now on record, we have expressed any opinion on the merits of the case. Whatever is observed by us in this judgment is solely for the purpose of disposal of this appeal.
29. So far as hype of media is concerned, in absence of any particular direction, either specific or general, it is difficult to avoid publication of any news or any details based upon facts but it is too much to say by the applicant that because of large publicity of the case by media, he may not get justice.
30. In reply to submission by the Ld. APP to consider rejection of different bail applications of the applicant by the competent Courts, learned counsel for the applicant has relied upon following judgments:
(2005)2 SCC 686, M. P. Lohia v. State of West Bengal (2005) 13 SCC 174 Hitesh Verma vs. State of Jharkhand
1) M.P.Lohia vs. State of West Bengal reported in (2005) 2 SCC 686, which confirms that any expression of opinion on the merits of the case except to the extent of finding out prima facie whether the accused are entitled to anticipatory bail or not, is likely to affect the trial. The Honourable Supreme Court has considered the entitlement of anticipatory bail without going onto correctness or genuineness of documents stating that it could be gone into during full-fledge trial and not at stage of considering application for grant of anticipatory bail. Therefore, such citation is not concerned or connected with present issue in any manner, except for the other ground discussed by the Apex Court regarding publication of article and interview of some persons connected with the pending case stating that; We deprecate this practice and caution the publisher, editor and the journalist who were responsible for the said article against indulging in such trial by media when the issue is sub judice.
However, to prevent any further issue being raised in this regard, we treat this matter as closed and hope that the other concerned in journalism would take note of this displeasure expressed by us for interfering with the administration of justice. Thus it is for the media to take care of such decision of the Supreme Court.
2) Hitesh Verma vs. State of Jharkhand reported in (2005) 13 SCC 174, wherein similar issue was discussed to the effect that whether such Section 304(A) or 302 of the Indian Penal Code is to be levied against the accused. The Honourable Apex Court has held that High Court should not have made such passing observations and matter should have been left to the appropriate Court to take any decision on the materials produced before it. If the superior Courts make any such observation, the subordinate Courts would be unduly swayed by it and may implicitly take certain decision without there being any proper application of mind. Thereby observations of the High Court for offences under Sections 304-A and 498-A of the Indian Penal Code has been deleted and directed the appellant to approach the High Court by way of fresh application of bail.
31. Thus the legal position is such that matter regarding framing of charge or regarding confirmation relying upon the final report i.e. charge-sheet that which offences or offences under which section is proved should have been left to trial Court to take any decision on the material produced before it by adding that trial Court shall alter or delete any charge after evidence is adduced and take resources of provision of Code of Criminal Procedure for taking any decision but appellant or revisional court should not evaluate so as to come to any conclusion only based upon report filed by the police.
32. However, at least for the sake of record it must be recorded herein that at least in Criminal Misc. Application No. 6430 of 2013 this Court (Coram: Honourable Mr. Justice A. S. Dave) has considered the prima-facie evidence while coming to conclusion that this is not a case where bail can be granted and thereby bail application was rejected. It is to be recollected here that such application was preferred after filing charge-sheet and after considering rival contentions, the same was rejected.
33. It is also to be recollected that, though we may not guided by such fact since we are dealing with a right of a person to keep discharge based upon the available prima faci evidence on record, the fact that while deciding such bail application, after filing of cgaresheet on 12.4.2013, the learned Judge has given 5 reasons in para 6 of such judgment dated 25.04.2013 in Criminal Misc. Application No.6430 of 2013 viz;
The applicant, after the incident, has neither reported to the police authority nor made an attempt to hospitalize the injured. He ran away from the spot leaving the injured without any medical assistance. Fleeing from the place of accident exhibits callous and inhuman conduct on the part of the applicant.
The applicant surrendered late after a frantic search by the police authority.
FSL report shows speed of the car driven by the applicant at 112 km per hour, which is sufficient to attribute knowledge of the applicant that driving the BMU car in a city area with such speed would certainly endanger human life.
Video CD records the manner in which the accident has taken place.
Though it is a case of rash and negligent driving, but, primafacie, it also attracts the offence punishable under Section 304, part 2, of the Indian Penal Code.
34. Therefore, after filing the charge-sheet, charges under Section 304 part 2 is already considered by the High Court and thereafter when such order dated 25.04.2013 has been approved by the Honourable Apex Court by dismissing Special Leave Petition (Criminal) No. 3975 of 2013 by an order dated 02.05.2013, practically the consideration of charges under Section 304 part 2 is prima facie accepted and approved by the Honourable Apex Court and hence there is no reason for the Sessions Court either to drop such charges or to discharge the applicant from all the charges as prayed for.
To confirm correct position I have called for the papers of charge-sheet and perused the same and come to the conclusion that prima-facie facts, which is on record of the trial Court, categorically confirms commission of offence as alleged in the charge-sheet.
36. The scrutiny of record also confirms that there were break marks on road, but tyres of applicant s car does not show any marks of break, if breaks are applied by such car. Therefore, when petitioner has argued that the trial Court has erred in stating that there is no break marks and thereby non-application of mind, practically observation regarding break marks may not be with reference to the road but with reference to tyres of the car, in as much as break mark on the road may be by any vehicle prior or after the incident, whereas, if tyres of applicant s car in question does not show the application of sudden break marks, then no fault can be found with the trial Court when it says that there are no break marks. Moreover, it cannot be ignored that if applicant has applied a break at the time of incident then his vehicle would not have dragged the motorcycle for 100 steps i.e. 200 feet i.e. 60 meters ahead. Therefore, there is no substance in the arguments of the applicant with such factual details that he was not negligent in accident and that it was happened only because of driving of his motorcycle on wrong side, by the victim.
37. On perusal on record, it also transpires that in application at Exhibit 2 before the Sessions Court order which is challenged bin this revision, the applicant has not prayed for altering the charge but it is prayed to discharge the applicant in case No. 41 if 2013. Thereby, practically applicant has to pray to quash the charges under Section 279 and 427 of the Indian Penal Code as well as under Section 134 (1)(B), 177, 184 of the M.V. Act, whereas before this Court the learned advocate has categorically argued that applicant admits that vehicle was driven in speed and that there was an accident of vehicle, which resulted into death of two persons and thereby practically they do not want discharge from the charges under Section 279 and 427 of the Indian Penal Code as well as under Sections 134(1)(B), 177, 184 of the M.V. Act. Thereby before this Court applicant has prayed to discharge him only from the charges under Section 304(II) of the Indian Penal Code. Technically, it can be argued and may be stated that such relief can be taken care under the general prayer to pass any other or further order as may be deemed fit or consonance to main order, when there is a separate provision under the Code for altering the charge, in absence of such specific prayer the charge cannot be altered in application under Section 227 of the Code for discharge. For the purpose we have to recollect here that Section 216 of the Code provides for altering the charge. Thereby any Court may alter or add to any charge at any time before the pronouncement of judgment, with some condition that such addition or alteration should be explained to the accused. Therefore, the submission before the trial Court or before this Court to drop the charge under Section 304(II) cannot be entertained in such proceedings.
38. Since, the trial Court has ample jurisdiction to alter the charge just before delivering the judgment. Therefore, it would be appropriate for the applicant to face the trial and to adduce evidence first and if it is proved on record that there is no mens rea or intention for offence under Section 304(II) at any point of time, at such stage applicant may apply before the trial Court for altering the charge to another charge considering the actual evidence produced on record.
39. The trial Court has while dismissing the application consider all such aspect which are dealt with herein and those aspects are specifically listed in para 39 of the impugned judgment. Therefore, there is no reason to say that learned trial Judge has not applied his mind in consideration of framing charge as levied in the charge- sheet.
Citations referred by the applicant:
40. In addition to arguments and submissions by both the parties, the perusal of the record shows that petitioner has pleaded and relied upon several other cases relating Section 227 of Code regarding discharging of accused before framing of charge as some such cases are quoted in the application before the trial Court and also in the Revision Application before this Court. The applicant has reproduced certain paragraph from all such judgments, however, none of the judgment confirms that trial court cannot frame charge under section 304(II), at the most some guidelines are framed for consideration of discharge application.
41. All these cases are distinguishable with the facts of the present case. In the present case, applicant is trying to assail the findings of the trial Court and submits that charge under Sections 304 Part II of IPC is not clearly made out against the applicant on the basis of evidence on record.
42. In view of latest judgments and judgment s by the larger bench, none of judgment referred by the applicant is helpful to the applicant so as to allow his application. As clarified by the Apex Court in several other cases, at the stage of Section 227 or 239 Cr.P.C. the standard to be adopted by the Court in scrutinizing the evidence at the stage of framing of charges by the Court is not the same as require to decide the matter finally for conviction, where cogent evidence beyond reasonable doubt may require. But at this stage, even if there is a strong suspicion about the commission of offence and the involvement of the accused, it is sufficient for the Court to frame charge. There is no necessity of formulating the opinion about the prospect of conviction. [AIR 2009 SC 9, Sanghi Brothers (Indore) Pvt. Ltd. v. Sanjay Choudhary]
43. Even at the cost of making this judgment lengthy, I am dealing with all the judgments, so as to avoid an argument that Court has not taken care of the application. Those cases are as under:
1972(3) SCC 282, Century Spinning and Manufacturing Co. Ltd. vs. State of Maharashtra:
The case was related to contravention of notifications imposing the statutory control, on manufacturing the disputed varieties of Param Sukh dhotis from October 20, 1964 to June 25, 1965. All the four accused persons were, therefore, charged with criminal conspiracy under Sec. 120-B Indian Penal Code read with Section 7 of the Essential Commodities Act. It was, however, contended on behalf of the appellants that the exemption granted to the mill by the Deviation Order was retrospective in nature and related back to the date of imposition of statutory control and, therefore, no offence, was committed by them. The other pleas were- (i) that the Textile Commissioner had condoned the offence, if any committed as per Deviation Order dated June 25, 1965 in which only a warning was given to the mills, and (ii) that there was no mens rea on the part of the accused. Therefore, none of the accused persons could be held to have committed the offence complained of.
For confirmation of discharge, the Apex Court has stated that the order framing the charges does substantially affect the person's liberty and it is not possible to countenance the view that the Court must automatically frame the charge merely because the prosecuting authorities, by relying on the documents referred to in Section 173, consider it proper to institute the case. The responsibility of framing the charges is that of the Court and it has to judicially consider the question of doing so. Without fully adverting to the material on the record it must not blindly adopt the decision of the prosecution.
Thus since there is no dispute to any such legal position, however order of discharge was considered because the offence was not affecting life of anyone but it was only disobedience of control order which was otherwise in abeyance and warning was already issued by the competent authority. Therefore in absence of such fact, this cited case will not help the accused to confirm the order of discharge in his favour.
2) 1977 (2) SCC 699, State of Karnataka vs. L. Muniswamy:
(i) The case of assault due to union activity where in 20 persons were shown as accused, hence accused against whom charges under 120-B was alleged were discharged stating that the order framing a charge affects a persons' liberty substantially and therefore it is the duty of the court to consider judicially whether the material warrants the framing of the charge. It cannot blindly accept the decision of the prosecution that the accused be asked to face a trial. For the purpose of determining whether there is sufficient ground for proceeding against an accused the court possesses, comparatively wider discretion in the exercise of which it can determine the question whether the material on the record, if unrebutted, is such on the basis of which a conviction can be said reasonably to be possible.(para 10) Considering the discussion of facts in previous paras, I am of the view that there is sufficient material on record to confirm conviction of the applicant and therefore when material on record is considered judiciously and when such material is sufficient to confirm conviction of the applicant, there is no bar to frame charge. It is to be noted here that reproduction of the para 10 is not in proper manner, in as much as without any indication, some lines are omitted while reproducing the text of para in verbatim from the reported judgment.
However this case law was interpreted by the Apex Court in the judgment between Divine Retreat Centre v. State of Kerala and Ors. Reported in AIR 2008 SC 1614, stating that the High Court of Karnataka in the exercise of its inherent power quashed the proceedings initiated by the State of Karnataka and accordingly discharged the accused. The High Court as well as this Court found that there was no material on the record on which any court could reasonably convict the accused for any offence. It is under those circumstances Supreme Court came to the conclusion that it would be a sheer waste of public time and money to permit the proceedings to continue against the accused.
(iv) In AIR 2009 SC 9, Sanghi Brothers (Indore) Pvt. Ltd. v. Sanjay Choudhary, the Apex Court has after considering this case held that there is no scope for doubt that at the stage at which the Court is required to consider the question of framing of charge, the test of a prima facie case is to be applied.(para 10) In AIR 2013 SC 52, Shoraj Singh Ahlawat v. State of U.P., the Apex Court has even after placing reliance upon this decision [Union of India v. Prafulla Kumar Samal and Anr. (1979) 3 SCC 4 : (AIR 1979 SC
366)] held that the trial Court was, in the light of the available material, justified in refusing to discharge the accused persons and that the grounds for discharge set up by the appellants could be examined only after the case had gone through full-fledged trial.
Thus this cited case will not help the accused to confirm the order of discharge in his favour.
3) (1979) 3 SCC 4, Union of India vs. Prafulla Kumar Samal:
(i) The applicant has quoted 4 ground carved out as principles for consideration of discharge application, which are to the effect that:
That the Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out;
Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial.
The test of determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.
That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced Court cannot act merely as a Post-Office or a mouth-piece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.
However scrutiny of the judgment makes it clear that in such reported case charges were under the Prevention of Corruption Act and the Apex Court has held that there does not appear to be any legal evidence to show any meeting of mind between respondents at any time, although the Collector at the time of the acquisition was a distant relation of respondent and he had himself slashed down the rate of compensation recommended by the Revenue Officer and it was never suggested by the prosecution that the Collector was in any way a party to the conspiracy.
Therefore in the present case when the trail court as well as this court has considered the prima faci evidence and when there is grave suspicious against the applicant and there can t be a second view that applicant was not negligent and when trail court has applied its mind, it cannot be said that trial court has acted as a post office or a mouth piece of the prosecution because the gravity of charges are considered by all courts even at the time of consideration of bail application when it was categorically said by the High Court and affirmed by the Apex Court that though it is a case of rash and negligent driving, but, prima facie, it also attracts the offence punishable under Section 304, part 2, of the Indian Penal Code. In such cited/reported case the Apex Court has also confirmed that even after such four principles, it does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial. This cited case will not help the accused to confirm the order of discharge in his favour.
4) 2002 (2) SCC 135, Dilawar Balu Kurane vs. State of Maharashtra:
Hon ble Apex Court has followed the decision in Prafulla Kumar Samal (supra) and applicant has reproduced para 12 & 13 of the judgment. Whereby the principles carved out in Prafulla Kumatr Samal (supra) s case are considered and reproduced in para 12 and in para 13, wherein it was observed and stated that; 13. As stated earlier, neither the Special Judge nor the High Court considered the materials on records while framing charge and there was no application of mind and the Special Judge merely acted as a post office. All the materials produced by the prosecution against the accused were duly considered by the High Court while disposing of the Writ Petition filed by the appellant. x x x x x x It was the Case of Professor for increasing the marks against illegal gratification, and whether he is public servant or not, was a major issue.
Thus even at the cost of repetition it is to be noted that when the trail court as well as this court has considered the prima faci evidence and when there is grave suspicious against the applicant and there can t be a second view that applicant was not negligent and when trail court has applied its mind, it cannot be said that trial has acted as a post office or a mouth piece of the prosecution because the gravity of charges are considered by all courts even at the time of consideration of bail application when it was categorically said by the High Court and affirmed by the Apex Court that though it is a case of rash and negligent driving, prima facie, it also attracts the offence punishable under Section 304, part 2, of the Indian Penal Code.
Thus this cited case will not help the accused to confirm the order of discharge in his favour.
5) AIR 2008 SC 2991, Yogesh @ Sachin Jagdish Joshi vs. State of Maharashtra:
This is a case of Conspiracy and murder. As deceased had love affair with appellants sister, appellant and his family members allegedly hatched conspiracy to murder deceased when they learnt about his marriage with some other girl. Allegation based on circumstantial evidence, namely, threatening calls from side of appellant to complainant. When Father of appellant who was stated to be mastermind behind entire conspiracy, as well as mother and sister of appellant were discharged along with other co-accused, it was held that there is no sufficient ground to proceed against appellant and that he is entitled to be discharged.
Therefore one has to consider the entire judgment where in the Apex Court has, relying upon State of Bihar vs. Ramesh Singh - (1977) 4 SCC 39 = AIR 1997 SC 2018 and Union of India vs. Prafulla Kumar Samal - (1979) 3 SCC 4 = AIR 1979 SC 366, in fact reconfirmed the legal position, whereas the decision regarding discharge of one accused in the reported case is mainly because of the total development in the case and based upon the facts, circumstances and available evidence on record. Therefore this cannot be said to be the ratio decided by the Apex Court, since it is a decision based upon the particular facts before the Court and hence in absence of similar or relevant material on record before us, simply because the Apex Court has discharged one of the accused in the reported case, present applicant cannot be discharged.
Thus this cited case will not help the accused to confirm the order of discharge in his favour.
6) AIR 2010 SC 663, P. Vijayan vs. State of Kerala:
The applicant has relied upon para 9 and 10 of this judgment and reproduce again same four grounds, which was reproduced with reference to the case of Prafulla Kumar Samal (supra) in previous para and ground of the revision application. Thus applicant has submitted that grounds carved out in Prafulla Kumar Samal (supra) is to be followed.
With respect, it is to be noted that applicant has either failed to read and digest the entire judgment when Apex Court has confirmed the rejection of discharge application in following words in para 22 after referring several other cases till para 14 when it is categorically stated in para 15 that; We shall now apply the principles enunciated above to the present case in order to find out whether or not the Courts below were justified in dismissing the discharge petition filed under Section 227 of the Code. ; whereas para 22 reads as under:
22.
In the case on hand, though, the learned Trial Judge has not assigned detailed reasons for dismissing the discharge petition filed under Section 227, it is clear from his order that after consideration of the relevant materials charge had been framed for offence under Section 302 read with Section 34 IPC and because of the same, he dismissed the discharge petition. After evaluating the materials produced by the prosecution and after considering the probability of the case, the Judge being satisfied by the existence of sufficient grounds against the appellant and another accused framed a charge. Whether the materials at the hands of the prosecution are sufficient or not are matters for trial. At this stage, it cannot be claimed that there is no sufficient ground for proceeding against the appellant and discharge is the only remedy. Further, whether the trial will end in conviction or acquittal is also immaterial. All these relevant aspects have been carefully considered by the High Court and it rightly affirmed the order passed by the Trial Judge dismissing the discharge petition filed by A3-appellant herein. We fully agree with the said conclusion.
Though in this case FIR was filed after long gape of 18 years, considering the available evidence on record, Apex court has refused to discharge accused.
Thus this cited case will not help the accused to confirm the order of discharge in his favour.
44. Perusing the judgments referred by the applicant, which are discussed herein above, it becomes clear that all such judgments can be distinguished on facts of the present case. In the present case applicant is not praying for quashing under Section 42 of the Code but came before the Court against order of framing of charge and on the bases of prima-facie evidence available on record in form of charge-sheet, applicant s assailment against findings of the trial Court for framing charge under Section 304(II) of the Indian Penal Code is not made out.
45. Whereas amongst judgments referred by the learned counsel for the applicant judgment in the case Century Spinning and Manufacturing Co. Ltd. (supra) is based upon the issue that in case of technical offence of non-payment of tax where company can be prosecuted or not. Thereby in such case Apex Court has held that no case is made out for framing charge. Therefore, such case is not applicable to all the cases. Whereas case of L. Munishwamy (supra) is broadly on issue of authority bar of jurisdiction of the High Court to quash the complainant in absence of prima-facie evidence and therefore only because there is a reference of provision of discharge in such decision, it is not applicable in all cases. The remaining four judgments are relating to issue of discharge under Section 239 of the Code. Since they are of the year 1979, 2002 2008 and 2010, and that such judgments are not widely relied upon, considering the relevant and latest judgments, the settled legal position is thus recorded as under:
46. Merely because of an observation in some cited cases that judge should not act as a post office, in every case it cannot be argued that the trial courts are acting as a post office of prosecution, more particularly without considering the overall / entire evidence on record, which specifically proves the commission of offence and thus when there is grave suspicious of commission of offence by the applicant as alleged in the charge sheet, which is discussed herein above, these citations does not help the accused in any manner to confirm his discharge.
Citations referred by the respondent:
47. So far as citations relied upon by the learned APP is concerned, it may be summarized as under:
2010(9) SCC 368, Sajjan Kumar vs. Central Bureau of Investigation:
The Apex Court has held that dehors to comments, observations and explanations emanating from the judgment of the learned single Judge, the trial Judge is free to analyse, appreciate, evaluate and arrive at a proper conclusion based on the materials being placed by prosecution as well as the defence during the trial. Thereby the Trial Court shall proceed without being hindered or influenced by the discussion and observations in this judgment in any manner, which are based solely on prima-facie consideration of available record only, and for considering the necessity of appropriate order under Section 227 of the Cr.P.C. only, and thereby its decision and final conclusion shall be purely based on the material brought in evidence at the trial.2008
(5) SCC 113 Hem Chand vs. State of Jharkhand:
The Apex Court has held in para 8 that, at the stage of framing of charge, the Court will not weigh the evidence. The stage for appreciating the evidence for the purpose of arriving at a conclusion as to whether the prosecution was able to bring home the charge against the accused or not would arise only after all the evidences are brought on records at the trial. The Court at the stage of framing charge exercises a limited jurisdiction. It would only have to see as to whether a prima facie case is made out or not. Whether a case of probable conviction for commission of an offence has been made out on the basis of the materials found during investigation should be the concern of the trial Court. At such stage, the higher Court should not delve deep into the matter for the purpose of appreciation of evidence. It would ordinarily not to consider as to whether the accused would be able to establish his defence, if any. (para 12) It is one thing to say that on the basis of the admitted documents, the accused was in a position to show that the charges could not have been framed against him, but it is another thing to say that for the said purpose he could rely upon some documents on his own way and interpret it on his own way even before proper proof of such documents or evidence on record without considering the way in which prosecution adduced it and relied or not relied upon it. While framing the charge the Court should restrict to rely upon any particular document or fact or circumstances in isolation of entire set of prima-facie evidence produced by the prosecution on record. The test at such stage where after accepting the charge beyond any case is made out, answer is yes in such question then there cannot be any order of discharge even an order of quashing of charge. Thereby, it clear that only one evidence in the form of CCTV footage cannot be made base for passing any such order and cannot be relied upon so as to free the petitioner from all the charges without trial.
3) 2011(11) SCC 556 = AIR 2012 SC 943, Tej Bir v. State of Haryana:
While dealing with similar application under section 401 of the Code of Criminal Procedure, 1973 before the High Court, whereby the High Court quashed the order of Additional Sessions Judge with respect to the charges framed against Kewal Kishan inter alia on the ground that there was no evidence against him; the Apex Court has held that, it is well settled that at the stage of framing of charges the High Court should not exercise its power of revision by way of quashing the charges by confining its attention only to the recitals in the F.I.R. An F.I.R. can never represent the entire evidence of the case. In the instant case, even though in the F.I.R., a reference was made to Kewal Kishan as masterminding of the conspiracy, the High Court should have refrained itself from quashing the charges by just referring to the recitals in the F.I.R.
The Apex Court has quoted the case of State of M.P. v. S.B. Johari and Ors. (AIR 2000 SC 665), where in it has been held that High Court in criminal revision cannot appreciate and weigh the materials on record for coming to the conclusion that charge against the accused could not have been framed. The Apex Court held that the settled legal position is that at the stage of framing of charge, the High Court has to prima facie consider whether there is sufficient ground for proceeding against the accused and the High Court is not required to appreciate the evidence and arrive at the conclusion whether the materials on record are sufficient for conviction of the accused or not. The test at this stage should be, whether after accepting the charge, as framed, any case is made out. Therby Apex Court has restored the charges against the appellant before it and ask him to face trial.
4) 1999(8) SCC 741 = AIR 1999 SC 3845, State of U.P. vs. Udai Narayan:
The Apex Court has specifically determined while dealing with the issue regarding discharge of accused from the charges that scanning and scrutinizing the evidence and materials produced by the prosecution is not permitted at the time of deciding the prayer for discharge and that positive conclusion on material record should be avoided as it may affect the trial.
5) 2012 (8) SCC 450 = AIR 2012 SC 3104, State thro. P.S.Lodhy Colony vs. Sanjeev Nanda:
Even in cases of vehicular accident, in few cases the Apex Court has also confirmed that charges under Section 304 part 2 can be sustained and thereby even the Apex Court has confirmed that punishment under Section 304 part 2 in case of vehicular accident.
6)AIR 2000 SC 665 = 2000 SCC(2) 57 : State of MP vs. SB Johari -
It was held that, the Court at the stage of S.227 and S.228 is not required to appreciate the evidence and arrive at the conclusion that the materials produced are sufficient or not for convicting the accused. Only prima facie case is to be looked into. The charge can be quashed if the evidence which the prosecutor proposes to prove the guilt of the accused, even if fully accepted, it cannot show that accused committed that particular offence.
48. Thus it is settled law that at the stage of framing the charge, the Court has to prima facie consider whether there is sufficient ground for proceeding against the accused. The Court is not required to appreciate the evidence and arrive at the conclusion that the materials produced are sufficient or not for convicting the accused. If the Court is satisfied that a prima facie case is made out for proceeding further then a charge has to be framed.
49. No other submissions were advanced before me by the petitioner.
Other citations on the subject of discharge of accused u/s 227 of the Code:
Following decisions of the Apex Court also needs to consider for determination, decision and conclusion on the issue on hand.
AIR
1980 SC 52 : Supdt. and Remembrance of Legal Affairs, West
Bengal vs. Anil Kumar Bhunja,
AIR
1987 SC 773 : State Of Himachal Pradesh Vs. Krishan Lal
Pardhan
AIR
1990 SC 1869 : Niranjan Singh K.S. Punjabi v. Jitendra
Bhimraj Bijjaya,
AIR
1996 SC 1744 : State of Maharashtra and Ors. v. Som Nath
Thapa and Ors.,
AIR
1997 SC 2041 : State of Maharashtra vs. Priya Sharan Maharaj,
AIR
2000 SC 665 : State of MP vs. SB Johari ,
AIR
2000 SC 2583 : State of M.P. v. Mohanlal Soni,
AIR
2001 SC 1507 : Om Wati vs. State,
AIR
2005 SC 359 : State of Orissa vs. Debendra Nath Padhi,
AIR
2007 SC 2149 : Soma Chakravarty v. State
AIR
2010 SC 663 : P. Vijayan v. State of Kerala and Anr.,
AIR
2011 SC 1103 : R.S. Mishra v. State of Orissa
AIR
2013 SC633 : Ajay Kumar Parmar v. State of Rajasthan
51. Details
of each case are not separately discussed, but gist of all such cases are to the effect that the law on the subject is now well-settle that while considering the discharge application, the Court is required to evaluate the material and documents on record for limited purpose i.e. to find out that whether facts emerged from such material even if taken on their face value, is enough in disclosing the existence of all the ingredients to constitute the alleged offences. The Court may, for this limited purpose, sift the evidence as it cannot be expected at such initial stage to accept entire prosecution story as gospel truth even if it is opposed to commonsense or the broad probabilities of the case. Therefore, at the stage of framing of the charge, the Court has to consider the material with a view to find out if there is ground for presuming that the accused has committed the offence or that there is no sufficient ground for proceeding against him and not for the purpose of arriving at the conclusion that it is not likely to lead to a conviction. The question whether there was mens rea and knowledge or negligence is not an abstract question of law but is a matter of evidence and cannot be considered at this stage. However I have gone through the record of the case and I am of the opinion that there is sufficient evidence on record to prove the case of the prosecution, where as explanation by the accused is not trust worthy, since not supported by the evidence less prima facie proof.
52. It is certain that there must be a very strong suspicion to form a presumptive opinion regarding the existence of factual ingredients constituting the offence alleged and thereby prima-facie sufficient ground to sustain the charge, for framing the charges so as to start the trial against the accused persons. It is also well settled that while framing the charge or while considering the request for discharge, inquiry must necessarily be limited to decide if the facts emerged from such material constitute the offence for which the accused could be charged. At such stage, the Court may peruse the record for that limited purpose, but it is not required to marshal the evidence with a view to decide the reliability thereof. Thereby the Court has to consider the material at such stage only with a view to find out if there is a ground for presuming that accused has committed an offence or that there is no ground to prosecute him.
Thereby, the Court has to sift the evidence, as it cannot be expected even at initial stage to accept all the prosecution story as gospel truth and even if it is opposed to common sense or the broad probabilities of the case, the Court has to consider the material with a view to find out that whether there is any ground to presume that the accused has committed the offence or that there is no ground for proceeding against him.
53. It is settled legal position that at such stage the Court has not to evaluate available prima facie evidence on record so as to confirm or decide particular thing but presence of prima facie evidence is sufficient to frame charge. Therefore, thought applicant has tried to disclose and interpret certain evidence in pleading, except issue which is necessary to decide present application other evidence has not been disclosed. However, I have gone through the entire pleadings and record and did not find any substance in the Revision Application.
54. However it cannot be ignored that what is to be looked in to is a very strong suspicion founded upon materials before the Magistrate, which leads him to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged ; therefore only because Apex Court has held so, it cannot be said that even if in absence of suspicion, presumptive opinion of the commission of offence as alleged is must and charge must be framed. Suffice to say that when enactment / statute provides for discharging accused, basically accused has a right to get discharge, which may be subject to fulfillment of certain criteria, that may be laid down either in the statute as well as its interpretation by the Apex Court and not otherwise. Therefore there can be order of discharge if there is no evidence with charge sheet which gives rise to even little suspicion to presume the commission of offence by the accused. Needless to say that even if there is suspicion regarding commission of offence, what is required to refuse discharge is suspicion of commission of offence by the accused against whom charge sheet is filed. Thus even if suspicion is possible for commission of offence, and if there is no evidence to link such suspicion with the accused, there cannot be a presumption against the accused that he had committed the offence and he may entitled to get discharged from the charges levied against him under the charge sheet. Needless to say that the charges levied against the person is to be considered and not the story or history of incident which results in to the commission of offence. For more clarity, commission of offence alone is not sufficient to frame charge against any person, there must be some suspicion that offence had been committed by the said person and not by any other person., If the suspicion is to the effect that though offence has been committed, probably accused might have not committed such offence but real offender may be some one else, Court has to see that truth comes out whereby the Investigating Agency may not be permitted to put their hands down mealy by filing charge sheet against any one suspect or any innocent person. In such cases trial cannot be allowed to continue only upon opinion of the investigating agency that accused had committed the offence as alleged in charge sheet. The Court has to arrive at independent opinion, after considering the available prima facie evidence on record which is only in the form of charge sheet, not only tabular charge sheet but list of witnesses and their statement before the investigating agency (police papers). It cannot be ignored that the ratio of conviction is quite low only because of the reason that though police papers supports the charge sheet, at the time of trail witnesses does not support their statement; this happens because of the possibility that in most of the crimes against the person/body under the Penal Code, the statement of witnesses are common to the effect that accused had acted in particular manner. However when crime is pertaining to some documents or properties intellectual and real, the investigating agency has to find out the real culprit with probable cogent evidenced, rather than only oral evidence that accused had committed crime as alleged. This is the area when its Courts duty to frame independent suspicion regarding not only commission of crime but involvement or roll of the accused against whom charge sheet is filed and if there is no possibility of even little suspicion against the accused regarding commission of offence by him, there is no bar to discharge such person from the charges levied against him,. In such cases it would be open for the original complainant and the investigating agency to keep such person under suspicion but to investigate further so as to find out real culprit, else filing of charge against a person only on suspicion but without sufficient evidence against him would be a futile exercise and it will not only increase unnecessary workload but crime in the society also, since real culprits are able to secluded them from the trial.
55. In AIR 2013 SC633, Ajay Kumar Parmar v. State of Rajasthan, it is held that the court should not pass an order of acquittal by resorting to a course of not taking cognizance, where prima facie case is made out by the Investigating Agency. More so, it is the duty of the court to safeguard the right and interests of the victim, who does not participate in discharge proceedings. At the stage of application of Section 227, the court has to shift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused. Thus, appreciation of evidence at this stage is not permissible.. Determination and Conclusion:
56. I have scrutinized the prima facie evidence on record which categorically proves the involvement of the accused in commission of crime and that there is prima facie evidence against him for framing the charges as levied in the charge sheet, considering the fact that;
Vehicle was driven in very high speed, which fact is supported by evidence on record Breach of Provisions of M V Act, Rules and Road Regulations (Traffic Rules) Not stopping after first impact with the assent car, if stopped at the spot, fateful accident could have been avoided, thereby let go the opportunity prevent accident, Runaway from the place of incident Duty & responsibility of large/big vehicle in such incident
57. However it is made clear that any discussed in this judgment should not be treated as expression of view or evaluation of evidence on merits or decision on charges by the prosecution or defence by the applicant. Thereby present conclusions of the Sessions Court as well as this Court are confined only for disposal of the discharge application filed under Section 227 of the Code. It is for the prosecution to establish its charge and the Trial Judge is at liberty to analyze and to arrive at an appropriate conclusion, one way or the other, in accordance with law. Thereby Trial Judge is free to dispose of the case uninfluenced by any of the observations made in this judgment.
58. In view of the above facts and circumstances, I do not find any merit in the application. There is a strong prima facie evidence about commission of the offence and involvement of the applicant as alleged in the charge sheet. Hence, the present application has no merits and deserves to be dismissed
59. Hence the revision application is dismissed. Rule is discharged.
(S. G. SHAH, J.) drashti Page 73 of 73