Gujarat High Court
Gopalsinh Bhimsinh Rathod vs State Of Gujarat on 5 August, 2003
Equivalent citations: (2003)3GLR2656
Author: J.R. Vora
Bench: J.R. Vora
JUDGMENT J.R. Vora, J.
1. This is the Revision Application filed against an order passed by 4th Fast Track Court, Rajpipla, as Court of Addl. Sessions Judge, on 6th of February, 2003, in Session Case No. 52/92 below Exh. 3 Application filed by present accused in that case, for discharging him.
2. As per the brief facts of the case, certain employees of Gujarat Spinners Mill Colony Limited had gone on a strike due to disturbance between management and the labourers. After obtaining police security, the management decided to start productions. Some of the labourers willingly co-operated. A group of SRP personnel in addition to police security were also stationed at the gate of the said Mill. The incident appeared to have occurred on 5.11.1989 and the Management had decided to start production on 6.11.1989. The police personnel, as above said, were on duty. At that time, one truck entered towards the gate for loading of goods produced in the Mill. The labourers, who were on strike, in the shape of mob, rushed towards the gate to restrain the truck from entering into the Mill. The police personnel attempted to restrain the mob of labourers but the mob started pelting stones. When the mob was uncontrolled, lathi charge and tear gas shells were employed. Even then, the mob was not dispersed and the police to control the mob, ordered gun firing in the air. About 30 rounds were discharged. When General Manager one Mr. Rathod and one Mr. Vyas attempted to enter into the Mill, the mob again attacked and caused damage to the security cabin of the Mill and Managers were beaten with stick and iron rods. Some police personnel were also injured and, therefore, a complaint came to be filed by Shri P.R.Gehlot, Police Sub-Inspector, Rajpipla, on 5.11.1989 at 11.15 hours. Thereafter, complainant in this case one Archhelal Karimanprasad on 7.11.1989 at about 20.35 hours in respect of the disturbance at the Mill, filed complaint against present applicant under Section 307 of the Indian Penal Code stating that the labourers who were on strike were attacking towards the gate of the Mill and police thereafter executed the firing. On account of firing, labourers started dispersing. The complainant Archhelal Karimanprasad, at that time, was standing near the right side of Security Office at the pan shop. The second person named by complainant as Prabhu @ Pirshinath was also standing with him. Other person one Rameshwar Yadav was also present. At that time, the applicant from the broken window of security cabin took out a rifle-12 bore and fired towards the complainant, which hit the complainant's left thigh. The complainant was fallen down. He was taken to hospital and thereafter complaint came to be filed.
3. On filing of the charge sheet, an application at Exh. 3 before the Asst. Sessions Judge, Bharuch, came to be filed in the above said case No. 52/02 by the present applicant - accused that having regard to the complaint filed, having regard to the panchnama and police papers, no offence against him is made out under Section 307 of the Indian Penal Code, and alternatively, if at all, the said offence is committed, then the said act is done in self defence, falling under exception of the Indian Penal Code, not amounting to any offence and, therefore, it was urged that he be discharged from the said charges under Sec. 307 of the IPC. The learned Addl. Sessions Judge, Bharuch, after hearing both the parties, came to the conclusion that taking into consideration, the complaint filed by Archhelal Karimanprasad and after perusing the statements of witnesses Rajendra Ranga and Ramnath Rudraprasad, prima facie, there is material on record to proceed against the applicant.
4. Being aggrieved, this Revision Application is preferred against above order of learned Addl. Sessions Judge, Bharuch, rejecting the application of the present applicant for discharging him for which the applicant is charged.
5. Learned Advocate Mr. Buch for the applicant was heard at length. His first endeavour was to draw the attention of this Court towards the complaint filed by Police Sub-Inspector P.R.Ghelot against 14 persons mentioned in the complaint and other 1500 labourers. It was, therefore, argued that the present complainant was amongst the mob. It was argued that firstly there is no material which would justify proceeding against the applicant for charge under Section 307 of the IPC, in the present case. It was argued that there was commotion at the gate of the Mill, the police personnel had to open fire for dispersing the mob and, therefore, the complaint came to be filed by present complainant is an after thought and to falsely implicate the present applicant in the above said case in view of first complaint filed by PSI Ghelot. My attention was also drawn to Sections 307 and 300 of the IPC. It was urged that there was no intention on the part of the applicant or it could not be made out from the material available that there was intention on the part of the applicant to cause murder of the complainant. Unless, this intention part as envisaged by Section 300 of IPC is prima facie proved, no offence under Section 307 said to have been established, even for the framing of the charge. In this context, it was also urged that, if at all, the applicant opened fire, as alleged, then the same was in the self-defence, not amounting to an offence because by the complaint filed by P.R.Gehlot, Police Sub-Inspector, Rajpipla as well as the complaint filed by very complainant, it is very clear that there was a mob attacking the employees of the Mill and two employees including Police personnel, were seriously injured and the act was only a self-defence. It was also urged that the complaint which came to be filed by the complainant is filed after two days of filing of the complaint by Police Sub-Inspector P.R.Ghelot, Rajpipla, against the labourers. There was, therefore, according to learned Advocate for the applicant, no intention to kill the complainant in the first place. There cannot be any intention on the part of the applicant, according to learned Advocate, to kill the complainant by the gun fire, and if that be so, then also, the case of the applicant is covered by sub-sec. (2) of Section 300 to protect himself from the attack of mob. It was also urged that there are two sets of evidence i.e. one supporting the complainant and another not supporting the complainant. In this view of the matter, it was urged that no prima facie case is made out and what is urged by the accused about the private self defence is required to be considered at this juncture.
6. Learned Advocate for the applicant also relied upon certain decisions which will be referred to hereinafter.
7. The phrase appearing in Section 227 of the Code that "there is no sufficient ground for proceeding against the accused" is meaningful and wider. The Court after considering the record of the case, the document submitted, shall come to conclusion that whether there is prima facie material on record to proceed against the accused for judicial finding. Even if the material indicates strong and serious suspicion about the complicity of the accused in the crime, then the court has to frame the charge. It must be borne in mind that truth, veracity and effect of evidence is not required to be adjudicated at the stage of framing of the charge. The strict standards of proof and the test of scrutiny of the evidence as to the guilt or otherwise of the accused is not to be applied by the courts at this stage. So far as possible, an exercise be undertaken to assess the material on record with a view to find that if the facts emerging from material on record taken at their face value disclose the existence of ingredients of the offence alleged. True, it is that in this exercise, court cannot take what prosecution states as gospel truth.
8. What should be the approach of the Court while dealing with Sections 227 and 228 of the Criminal Procedure Code in framing of charge against the accused or discharging is well explained by Apex Court in the matter of STATE OF M.P. vs. S.B. JOHARI & ORS., reported in (2000) 2 SCC 57. The Apex Court observed in para 4 as under :
"In our view, it is apparent that the entire approach of the High Court is illegal and erroneous. From the reasons recorded by the High Court, it appears that instead of considering the prima facie case, the High Court has appreciated and weighed the materials on record for coming to the conclusion that charge against the respondents could not have been framed. 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. The charge can be quashed if the evidence which the prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged by cross-examination or rebutted by defence evidence, if any, cannot show that the accused committed the particular offence. In such case, there would be sufficient ground for proceeding with the trial. In Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijjayya after considering the provisions of Sections 227 and 228 CrPC, the Court posed a question, whether at the stage of framing the charge, the trial court should marshal the materials on the record of the case as he would do on the conclusion of the trial. The Court held that at the stage of framing the charge inquiry must necessarily be limited to deciding if the facts emerging from such materials constitute the offence with which the accused could be charged. The court may peruse the records for that limited purpose, but it is not required to marshal it with a view to decide the reliability thereof. The Court referred to earlier decisions in State of Bihar vs. Ramesh Singh, Union of India v. Prafulla Kumar Samal and Supdt. and Remembrancer of Legal Affairs, W.B. v. Anil Kumar Bhunja and held thus :
"From the above discussion it seems well settled that at the Sections 227 - 228 stage the court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The court may for this limited purpose sift the evidence as it cannot be expected even at the initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case."
The Apex Court in the case of SUPRESH @ PAPPU BHUDHARMAL KALANI vs. STATE OF MAHARASHTRA, reported in (2001) 3 SCC 703 observed in paras 9, 10 and 12 as under :
" 9. We do not feel it necessary to repeat the discussions on the different points and the decisions which have been referred to in the judgment. However we notice a few recent decisions of this Court touching on the question. In the case of State of Maharashtra v. Priya Sharan Maharaj, this Court referring to the case of Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijjaya held (at SCC p. 397, para 8) that at the stage of Sections 227 and 228 the court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The court may, for this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as the gospel truth even if it is opposed to common sense 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 not 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.
10. In the case of State of M.P.v. Mohanlal Soni this Court referring to several previous decisions, held at (SCC p. 342 para 7) that the crystallised judicial review is that at the stage of framing 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 evidence to conclude whether the materials produced are sufficient or not for convicting the accused.
11. The learned Special Judge in para 18 of the order extracting from the judgment of the Bombay High Court in Rudolf Fernandes v. State of Goa observed, and in our view rightly, that each case depends upon its particular facts and circumstances and sometimes even a remote link between the activities of an accused and the facts of the case may justify a reasonable inference warranting a judicial finding that there is ground for presuming that an accused has committed the offence or at least to presume that the question of his being directly or indirectly involved in the commission of such offence is not to be ruled out." 9. Considering the case from this angle and in the limited scope, from the complaint and from the statements of the witnesses Rajendra Ranga, Ramnath Rudraprasad, it clearly comes out at this stage that the accused, as per the allegation, did fired from 12 bore rifle towards the complainant. Of course, a distinction is required to be made that the witnesses supports the version of the prosecution to the extent that from the security cabin, the accused from 12 bore rifle opened fire. If the complaint of the complainant is read together with the statements of the witnesses, it leaves no doubt that prima facie the case against the applicant is made out by the prosecution to frame charge against the present applicant under Section 307 of the Indian Penal code. True, it is that there was a mob attacking the Mill, and since long, there was a police security, even the SRP personnel were stationed at the gate, to defend the mill, but the incident which is complained of appears to have occurred, according to the complainant and witnesses when the complainant was standing near the pan shop and after the Police firing came to an end. In this view of the matter, the say of the applicant that the act done is in self-defence, cannot be believed for the purpose of framing of the charge. The complaint is clear to the extent that the gun was fired towards the complainant. A bullet fired from the 12 Bore rifle kills a person and it is a knowledge of all human being that firing such gun towards the complainant denotes nothing but such intention and premeditation on the part of the applicant, as found from the material produced on the record. Therefore, though it cannot be disputed that the material which the accused placed at the time of the framing of the charge must be taken into consideration including his plea of self-defense. But, in this case, from the facts and circumstances which emerges from the material, it is clear that there was intention on the part of the applicant, constituting offence under Section 307 of the IPC, and at this juncture, the act done in view of the facts and circumstances narrated above, cannot be termed as an act done in right of private defence so as to discharge the applicant in the above said Session Case. Material produced by the prosecution if taken on its face value, discards the probability of plea of self-defense of the applicant.
10. Learned Advocate for the applicant has relied upon a decision of the Andhra Pradesh High Court in the case of T.V. Sarma v. R. MEERIAH, reported in AIR 1980 219 (FB) wherein Full Bench of Andhra Pradesh High Court observed that the language is wide enough to include any ground which he considers sufficient for not proceeding against the accused. The para 17 has been relied upon. Like wise, a decision of the Apex Court in the matter of SATISH MEHRA vs. DELHI ADMINISTRATION AND ANOTHER, reported in (1996) 9 SCC 766 and para 9 was relied upon. The Supreme Court observed in this decision that when the court is of opinion that there is ground to presume that the accused has committed an offence, the procedure laid down therein has to be adopted. When those two sections are put in juxtaposition with each other the test to be adopted becomes discernible. Is there sufficient ground for proceeding against the accused. The Supreme Court further observed that the standard of proof normally adhered to at the final stage is not to be applied at the stage where the scope of consideration is where there is "sufficient ground for proceeding". Learned Advocate for the applicant has also relied upon a decision of the Apex Court in the matter of DILAWAR BALU KURANE vs. STATE OF MAHARASHTRA, reported in (2002) 2 SCC 135, wherein the Supreme Court has laid down that where there are two views equally possible and evidence gives rise to some suspicion but not grave suspicion, the court can discharge the accused. The learned Advocate for the applicant also relied upon a decision of the Apex Court in the matter of STATE OF MADHYA PRADESH vs. MOHAN LAL SONI, reported in 2000 SAR (Criminal) 712, wherein also the Supreme Court observed that the court at the stage of framing of charge is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The court for this limited purpose can sift the evidence on record. Paras 8, 9, 10, 12, 13, 14 and 15 are relied. The learned Advocate for the applicant also relied upon a decision of this Court in the matter of N.V. KATARIA vs. STATE OF GUJARAT, reported in 2000 (2) GLH 97 wherein it has been held that at the time of the framing of the charge, the defence of the accused and the material produced by him also required to be taken into consideration and that the court is bound to ascertain whether the prosecution intends to rely on direct cogent circumstances or an assumption and presumption and that suspicious circumstances is not sufficient to link the accused with crime.
11. As narrated above, the facts of this case from permissible scrutiny at this stage passes the test laid down by the decision cited above by learned Advocate for the applicant. If the case of the prosecution is taken at its face value, it clearly reveals that after the mob was dispersed or was dispersing after the police firming, the applicant aimed a gun from the broken window of the Security Cabin while the complainant was not, according to him, in the mob, but was standing near the pan shop. The prosecution case may not be the gospel truth, but at the same time, nothing is found from the record to come to prima facie finding that complaint filed by the complainant is utterly false. If that finding is not possible, then the plea of the applicant, as right of private defense, is entirely meritless.
12. Whatever is observed in this judgment is observed in respect of Sections 227 and 228 of the Criminal Procedure Code and any observations made in this judgment as to the fact shall not come in the way of the applicant during trial or even for raising plea of right of defense before the Trial Court. The Trial Court shall not be influenced by the observations of this judgment while conducting and deciding the trial.
13. In view of the above discussion, there is sufficient material even after considering the defence of the accused, to proceed against the accused for the charges levelled against him for Section 307 of the Indian Penal Code.
14. For the reasons aforesaid, this Revision Application stands dismissed.