Bombay High Court
Rajendra Narayan Nalawade vs The State Of Maharashtra on 19 October, 2000
Equivalent citations: 2001BOMCR(CRI)~, (2001)2BOMLR608, 2001(1)MHLJ478
Author: J.A. Patil
Bench: J.A. Patil
JUDGMENT J. A, Patil, J.
1. Heard Shri Naveen Chomal, Advocate for the petitioner and Shri Bharat Mehta, A.P.P. for the Respondent State.
2. By this revision application under Section 397 of the Code of Criminal Procedure, the petitioner has challenged the order dated 4.5.2000 passed in Misc. Application No. 179 of 2000 in Sessions Case No. 161 of 1998 by the Additional Sessions Judge, Mumbai. The learned Judge rejected the petitioner's application for remand of the case to the Court of Metropolitan Magistrate for his trial for the offence under Section 506 (Part II) of the Indian Penal Code. The relevant facts necessary for disposing of this application are, in brief, as under :
3. The petitioner is the accused in Sessions Case No. 161 of 1998 and a charge-sheet for the offence punishable under Section 307 of the Indian Penal Code is filed against him. The allegation against the petitioner is that on the evening of 27.10.1997, the petitioner was seen running away from a lane and he was being chased by some people who were loudly shouting "thief, thief". A police party on patrolling duty, on seeing this, started chasing the petitioner and encircled him. It is alleged that at that time, the petitioner was armed with a pistol and that he pointed out the pistol at the policemen who had encircled him and threatened them that he would kill them in case they did not allow him to go away. It is alleged that the petitioner was about to fire a shot but before that the police party managed to catch hold of him and seized the pistol from his hand. The petitioner was arrested and on completion of the Investigation, he came to be charge-sheeted for the offences punishable under Section 307 of the Indian Penal Code and under Section 3 read with Section 25 of the Arms Act.
3. Before the Sessions Court, petitioner moved an application contending that prima facie the allegations made against him did not disclose any offence of attempt to commit murder as contemplated by Section 307 and that at the most he could be charged of the offence of criminal intimidation under Section 506 (Part II) of the Indian Penal Code. The petitioner pointed out that he had not done any overt act which could be construed as an attempt to commit murder. The learned Judge, however, did not accept this contention and observed that for the purpose of criminal liability, it is sufficient if the attempt has gone so far that the crime would have been completed but for extraneous intervention which frustrated its consummation. The learned Judge further observed that whether the accused had the intention to kill or not is a matter in the domain of evidence. In this view of the matter, the learned Judge proceeded to reject the application.
4. Shri Chomal contended before me that the alleged act of the petitioner is only to the effect that he pointed out a loaded pistol at the policemen. According to him, the petitioner did not do any overt act, such as firing a shot at the policemen. He only threatened the policemen by means of a pistol, which he was holding, in order to effect his escape from the policemen and others who were chasing him. Therefore, according to Shri Chomal, the learned Judge committed an apparent error in rejecting the petitioner's application. Shri Bharat Shah, the learned APP, on the other hand, submitted that the conduct of the petitioner at the relevant time clearly shows that he made an attempt to commit murder of the policemen.
5. It may noted that every crime passes through three stages : the first being intent, which is direction of conduct towards the object chosen. The second is preparation which consists in devising or arranging means or measures necessary for commission of offence. The third stage is the attempt which a direct movement towards the commission of offence after preparation is made. It Is only when the attempt Is successful, that the crime is committed. The dividing line between preparation and attempt in some cases is very thin and the question whether there has been an attempt to commit an offence of only a preparation to commit it, is required to be decided on the facts of each particular case.
6. Relevant portion of Section 307 of the Indian Penal Code reads as under:
"Attempt to murder.-- Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned."
The words "under such circumstances" occurring in Section 307 are very material and they require the Court to take into consideration the relevant circumstances. In the Instant case, the petitioner was running away, with a view that he should not be apprehended by the people whowere chasing him by shouting "thief, thief. As mentioned above, a police party on patrol duty took to chase the petitioner and encircled him. It is true that the petitioner was carrying a loaded pistol with him and that he pointed out the same at some policemen and threatened to kill them, in case he was not allowed to go away. Prima facie, these facts indicate that the petitioner did not intend to commit any murder and all that he wanted was to effect his escape from the hands of the policemen, who had encircled him. It will thus be seen that there was actually no overt act on his part towards the direction of committing the murder of any of the policemen. The matter would have been different if the petitioner had fired a shot at one of the policemen. In that event, it could have been said that he did make an attempt to commit murder irrespective of the fact that whether the bullet fired by him had caused any injury to the policemen, whom he had made a target or whether the bullet totally missed its target.
7. Shri Chomal relied upon the decision in Sagayam v. State of Karnataka, wherein the facts were that the accused had threatened to kill the Police Officer and even tried to pierce him with a sword. The Supreme Court, however, held that this only indicated that there was only a threat to assault the Police Officer and that the overt act attributed to the accused would not amount to attempt to commit murder. The other case relied upon by Shri Chomal is Nachhattar Singh v. State of Punjab, wherein the facts were that the accused was trying to escape after committing an offence. He inflicted knife injuries to a person, who tried to catch hold of him. The Injuries were simple in nature. On these facts, the Punjab and Haryana High Court held that the accused could not be held guilty of attempt to commit murder and that he was liable to be convicted under Section 324 of the Indian Penal Code for causing injuries. The facts in the present case are far better than the facts mentioned in the above mentioned two decisions. As pointed out above, the petitioner did not fire any shot at any of the policemen, who had encircled him. All that he did was only to point out the pistol at the policemen and threatened them to kill in case he was not allowed to go.
8. In Shivaji v. State of Maharashtra, a Division Bench of this Court, of which I was a member, considered the question as to what amounts to attempt to commit murder. In that case, the accused was being chased by the police in a jeep. It was alleged that the accused had fired shots from his revolver towards the policemen, but nobody was hit with it. There was no evidence to show as to what was the distance between the accused and the police jeep when he fired the shots at the policemen. There was nothing on record to show that the shots were fired from the effective range of the revolver. The accused was held not guilty of the offence under Section 307 of the Indian Penal Code and it was observed that in order to prove a case of attempt to commit murder, the prosecution has to prove two things. The first is that the accused had Intention or knowledge to commit murder, and, secondly, the overt act done by him was capable of causing death. In the instant case, the overt act attributed to the petitioner is only a threat to kill coupled with pointing out of a loaded pistol. Obviously, this is not an act which in itself could be said to be capable of causing the death. It will, therefore, be clear that even accepting the prosecution case as it stands, it falls too short to show that there was actually any overt act on the part of the petitioner, which can amount to an attempt to commit murder. The learned Judge failed to consider this aspect of the case. Therefore, the order passed by him is erroneous and Improper.
9. The learned Judge has further observed in his order that if in the Trial Court the evidence discloses that the petitioner has committed a lesser offence, then the Court can certainly consider the same. The question is, however, why the petitioner should face a trial on the charge of attempt to commit murder, if prima facie, the overt act attributed to him does not fall within the mischief contemplated by Section 307 of the Indian Penal Code. It may further be noted that the offence under Section 307 of the Indian Penal Code is triable only by the Sessions Court. If, however, that charge is deleted, then there will be a change of forum, as the offences under Section 506 (Part II) and under Section 3 read with Section 25 of the Arms Act are triable by the Magistrate.
10. In the result, the application is allowed. The impugned order passed by the learned Additional Sessions Judge Is hereby quashed and set aside and he is directed to proceed further in the matter in accordance with the provisions of Section 228(1)(a) of the Code of Criminal Procedure.
11. Rule is made absolute in the above terms.
12. Parties and the concerned authorities to act on an ordinary copy duly authenticated by the Sheristedar of this Court. Certified copy expedited.