Bombay High Court
Sailesh Pranbhydas Mehta vs Dilip Harilal Mehta And Anr. on 24 April, 1979
Author: P.B. Sawant
Bench: P.B. Sawant
JUDGMENT P.B. Sawant, J.
1. These are two revision applications arising out of the same order, namely, the order dated 25th and 26th April, 1978, passed by the Additional Sessions Judge, Greater Bombay, in Criminal Application No. 25 of 1978. Revision Application No. 451 of 1978 is filed by the original complainant and Revision Application No. 1477 of 1978 is filed by the original accused. Both the said applications are being disposed of by this common judgment.
2. The complainant filed a criminal case being Case No. 32/W of 1976 in the Metropolitan Magistrate, 14th Court, at Girgaum, against the accused for the offence under section 497 of the Indian Penal Code. According to this complaint, the accused who is the first cousin of the complainant's father, had committed adultery during the years 1974 and 1975 within the meaning of the said section, with his wife Anjali. In the complaint, he gave a list of witnesses which included two persons, one was his sister Bakula and the other was Inspector of Police, Gamdevi Police Station, Bombay.
3. At the trial, before framing the charge the learned Magistrate took evidence under section 244 of the Criminal Procedure Code (hereinafter referred to as the said Code), and thereafter by his order, dated the 20th of January, 1978, framed a charge against the accused for the offence under section 497 of the Indian Penal Code. This order framing the charge was challenged by the accused by Revision Application No. 25 of 1978, under section 497 of the said Code before the Additional Sessions Judge, Greater Bombay, and the learned Judge by his impugned order held that there was no legal evidence before the learned Magistrate to frame the charge in question and quashed the said charge. However, instead of discharging the accused, the learned Judge remanded the matter to the learned Chief Metropolitan Magistrate for either trying it by himself or assigning it for trial to any other Metropolitan Magistrate for fresh trial, in support of this part of the order, namely, the remand, he stated that if after setting aside the order framing the charge he discharged the accused, the complainant might file a complaint and the proceedings might have to continue afresh. In his opinion, therefore, to save the time and energy of the parties concerned, the present proceedings should be continued and the complainant should be given an opportunity to lead such evidence as he choose to do. He has further observed that if such evidence is led, it might be that some of the grounds on which the evidence, which he had held inadmissible at that stage, might no more continue to be inadmissible and might be admitted properly. It is aggrieved by the first part of the order that the accused has preferred his revision application, and the other revision application filed by the accused is directed against the said later part of the order.
4. We will first deal with the revision application filed by the complainant. Mr. Vashi, the learned Counsel appearing for the complainant in this application, submitted that the learned Sessions Judge committed an error of law in holding that there was no legal evidence on record to frame the charge in question. According to him, the pieces of evidence relied upon by him, were proved according to law by the complainant and hence there was a patent error committed by the learned Judge in the exercise of his jurisdiction when he quashed the charge framed by the learned Magistrate, by his impugned order. We are unable to accede to or accept this contention advanced on behalf of the complainant, for the following reasons. Admittedly the six pieces of evidence on which the complainant relied in support of the framing of the charge, were as follows :
(a) Photographs (Exs. A to G)
(b) Writings (Exs. H and I) of the complainant's wife.
(c) Tape-recording of the conversation of the accused with complainant's sister Bakula and the transcript thereof (Ex. L)
(d) Tape-recording of the conversation between the complainant's wife and her sister.
(e) Torn pieces of papers alleged to be parts of letters written by the accused to the complainant's wife (Ex. N).
(f) A certified copy of the Matrimonial petition filed by the complainant's wife against the complainant in the City Civil Court, Bombay (Ex. O).
(a) As regards the photographs (Exs. A to G) admittedly the complainant does not know who had taken these photographs and when. He is also not relying upon the negatives of the said photographs for proof thereof. On the other hand, his case in connection with these photographs is that the same were found lying in a corner of the bathroom on one of the days when he had returned after a stroll with his wife. In the circumstances, the mere production of photographs is clearly no proof of the same according to law. We are, therefore, unable to appreciate the contention advanced by Mr. Vashi, that the learned Judge was in error in discarding the same as being improperly admitted as evidence on record.
(b) As regards the two writings (Exs. H and I), according to the complaint, the said writings are in the handwriting of his wife. Admittedly these writings have not been addressed to any particular person as such. Mr. Vashi was also unable to enlighten us as to how these writings came in the possession of the complainant and when the said writings were taken from his wife. In any case the writings were taken on record and relied upon by the learned Magistrate without the same being proved according to law. It is only the word of the complainant in this regard which has been accepted by the learned Magistrate. In the circumstances, it cannot be said, again, that the learned Judge has committed an error in holding it was not open for the learned Magistrate to rely upon the same for framing the charge.
(c) This is a transcript, as translated in English, of the tape-recorded conversation allegedly between the accused and the complainant's sister Bakula. Apart from the fact that this transcript has not come on record according to law. We went through the said transcript and found that there was absolutely no reference to any adulterous relationship between the accused and the complainant's wife. In fact, Mr. Vashi also could not satisfy us if there was any such reference to the so called illicit intimacy between the accused and the complainant's wife. What he wanted to urge with reference to this transcript of the conversation was that taking into consideration the other circumstances on record (which are being serially discussed herein), the conversation can be related to illicit intimacy between the accused and the complainant's wife. We are unable to appreciate this contention firstly because the other circumstances on record do not prove any such intimacy either collectively or individually. Secondly, even if the other circumstances, as alleged had made out the case of such an illicit intimacy between the parties, the transcript of this conversation neither in conjunction with the said circumstances nor independently make out any such case of illicit relationship even remotely.
(d) This is a transcript of again a tape-recorded conversation, allegedly between the complainant's wife and her sister. Here again, we are unable to find even a clue to the so-called illicit relationship between the accused and the complainant's wife. We are further unable to understand as to how this conversation between the complainant and her sister even if it were to allude to the so-called illicit relationship between the accused and the complainant's wife could at all be taken on record as evidence to prove the case of adultery against the accused. The learned Judge, therefore, had rightly held that the same was not admissible in evidence.
(e) Ex. M. collectively are the scraps of papers. They are supposed to be torn pieces of different letters addressed by the accused to the complainant's wife. How these scraps of papers by themselves do not at all show that they are parts of any letter or letters as such. Further they do not show that they are parts of a letter or letters addressed to any particular individual including the complainant's wife. The mutilated contents of the said scraps do not further make even one sentence complete in any of the scraps of paper. We are surprised as to how a Court of law could entertain these scraps of papers at all on its record to show that they were parts of a letter or letters addressed by the accused, as alleged by the complainant, to his wife. This is apart from the fact that, is stated earlier, the scraps of paper do not make any coherent meaning whatsoever. The learned Judge was, therefore, justified in holding that it was not open for the learned Magistrate to rely upon the said scraps of paper.
(f) The last piece of evidence relied upon by the learned Magistrate was a certified copy of the matrimonial petition (Ex. O) filed by the complainant's wife against him in the City Civil Court for getting divorce. In the first instance, this is a certified copy and no reasons have been given by the complainant as to why he could not produce the original of the petition from the City Civil Court, Bombay to the Metropolitan Magistrate's Court at Girgaum. Secondly, the complainant has not cited his wife as one of the witnesses in the complaint. As stated earlier, the only two witnesses cited by him are his sister Bakula and the Inspector of Police, Gamdevi Police Station. In the absence of the complainant's wife, who has filed the said petition, it is difficult to understand as to how the contents of the said petition could come on record. Thirdly, assuming that all that has been stated by the complainant's wife in the said petition is true, it is certainly no legal evidence against the accused, and hence the contents of the said petition, as they are, could not have been relied upon by the learned Magistrate to frame the charge in question.
5. These are all the pieces of evidence on which the learned Magistrate relied upon to frame the charge in question. We have discussed in detail the nature of each pieces of the so called evidence tendered before the learned Magistrate and relied upon by him for framing the charge, and demonstrated as to how the said documents are not pieces of legal evidence and could not have been relied upon by the learned Magistrate for framing the charge. In the circumstances, we are unable to understand as to how it could be said that the learned Sessions Judge was wrong in quashing the order framing the charge as being unsupported by any legal evidence on record.
6. Mr. Vashi then contended that what was necessary at this stage was to produce only a prima facie evidence to make out a case for framing the charge. It is open for the complainant to produce other and further evidence after the charge is framed .to prove the guilt of the accused. In the first instance, this submission is incorrect in law. What is required by section 244 of the Criminal Procedure Code is that when a warrant case is instituted otherwise then on a police report, the Magistrate has to hear the prosecution and take all such evidence as may be produced in support of the prosecution and section 246 of the said Code lays down that after all the evidence referred to in section 244 of the said Code is led the Magistrate must be of the opinion that there is ground for presuming that the accused has committed the offence, and then only he would frame a charge against the Accused. What is, therefore, necessary for the prosecution to lead is 'Evidence' and for the Magistrate to take into consideration is such 'evidence'. It is, therefore, implied that it is legal evidence that is to be produced by the prosecution and the Magistrate has to form his opinion on such legal evidence. Everything that is tendered in Court is not an evidence. Neither the prosecution can tender anything in Court nor the Magistrate can rely upon everything that is produced in Court to frame a charge under section 246 of the said Code. It is erroneous to presume that section 244 read with section 246 of the Criminal Procedure Code merely requires a Magistrate to from an opinion on the basis of some vague allegations that are made before him and all that is required by the prosecution is to create a suspicion in the mind of the Magistrate that there may be a case against an accused. That is exactly what the submission made by Mr. Vashi on behalf of the complainant comes to. That is why he submitted that the complainant could have proved the documents tendered by him and relied upon by him, according to law, even after the charge was framed, and it was not necessary that everything should be done to prove the said documents before the charge was framed. We are unable to accept this contention. There is no difference in the degree of the burden cast upon the prosecution to prove its case before the charge is framed. The same tests of legality with regard to the evidence tendered before the charge are applicable as they are with regard to the evidence tendered after the framing of the charge. It is wrong to presume that before the charge is framed, as stated earlier all that is necessary is to create a suspicion that the accused is guilty of the offence and the charge can be framed even on such suspicion, however, grave. In the circumstances, we are of the view that the learned Sessions Judge was right in holding that there was no legal evidence on record, which could be taken by the learned Magistrate into consideration for framing the charge and the charge framed was, therefore, on the basis of evidence which was no evidence in the eye of law. We are more than satisfied that the learned Judge was right in quashing the charge by his impugned order.
7. That takes us to the revision application filed by the accused. The grievance of the accused in this revision application is that the learned Judge having held that there was, no legal evidence produced by the complainant for framing the charge, the learned Judge should have discharged the accused and not remanded the matter to the Magistrate's Court again for giving a second opportunity to the complainant to produce evidence for the purpose of framing a fresh charge. We will first deal with a preliminary submission raised on behalf of the complainant regarding the maintainability of this application. The submission on behalf of the complainant was that a second revision application was filed by the accused against an interlocutory order framing the charge, the first revision application being that filed before the Sessions Court. In view of the provisions of sub-section (2) of Section 397 of the Criminal Procedure Code such, an application is barred. In this connection he has also submitted that even the original application filed by the accused before the Sessions Judge was contrary to the provisions of sub-section (2) of section 397 of the said Code, which bare the challenge to an interlocutory order by a revision under section 397(1) of the said Code, in the first instance, it must be made clear that the present application filed by the accused is not under section 397(3) but under section 482 of the said Code and under Article 227 of the Constitution. The provisions of section 482 of the said Code are available to prevent an abuse of the process of the Court even where a second revision application is barred by the provisions of sub-section (3) of section 397 of the said Code as is now laid down by the Supreme Court in its latest decision reported in Madhu Limaye v. The State of Maharashtra, A.I.R. 1977 S.C. 47. Therefore, there is no difficulty in the way of the accused in filing the present application under section 482 of the said Code. This is apart from the fact that under Article 227 of the Constitution, this Court has power of supervision over the subordinate courts and whenever there is an error apparent on the fact of the record the discretionary power under Article 227 of the Constitution can be exercised to correct the said error and keep the subordinate courts within their jurisdiction if the Court finds that the order challenged has resulted in injustice to the accused. We will presently show that the second part of the impugned order, namely, the order remanding the matter to the learned Magistrate for a fresh trial is, prima facie, unsupportable in law and has resulted, in injustice to the accused.
8. As regards the argument that even the revision application filed by the accused before the learned Sessions Judge was not maintainable because the order framing the charge was an interlocutory order. It may at once be pointed out that as held by the Supreme Court in Amarnath v. State of Haryana, A.I.R. 1977, S.C. 2105, every interim order passed by the Court is not necessarily an interlocutory order. There may be orders which are interim orders and which deal with an aspect of the trial and bring that aspect to an end. These orders may relate to the matters moment affecting the rights and liabilities of the parties. Such orders though interim, would not fall under the category of interlocutory orders within the meaning of sub-section (2) of section 397 of the said Code. In the present case we are faced with such an order which has brought to an end one of the aspects of the trial, namely, the stage up to the framing of the charge which stage cannot be revised or revoked by any further order that he may make. The learned Magistrate has now to proceed further with the trial from that stage and either acquit the accused or convict him of the offence with which he is charged. Hence the order framing the charge has definitely affected the rights of the accused. Although, therefore, the order framing the charge is an interim order, it is not an interlocutory order within the meaning of sub-section (2) of section 397 of the said Code and the same having affected the rights of the accused, it is open for the accused to challenge the same even under section 397(1) of the said Code. Hence there was nothing wrong if the learned Judge had under the provisions of section 397(1) of the said Code entertained the said revision application.
9. Now coming to the merits of the contention raised by the accused in this revision application, we find that there is much force in the said contention. This is a case without any evidence in the possession of the complainant to prove his charge against the accused under section 487 of the Indian Penal Code. We have already discussed, while dealing with the earlier revision application, the evidence which was sought to be produced and relied upon by the complainant in support of his case that the accused had committed adultery with his wife. We questioned Mr. Vashi, the learned Counsel appearing for the complainant, as to what other evidence he was going to produce in the present case to prove the said charge and he stated that he wanted to examine the complainant's sister Bakula and also his wife. Through the complainant's sister Bakula, all that he wanted to prove was the so-called conversation (Exhibit 10) referred to above while dealing with the complainant's revision application. We have already stated while discussing the nature of the transcript of the said conversation that it does not make out even remotely that the accused was in illicit intimacy with the complainant's wife. Even if, therefore, Bakula who was not examined before framing the charge, now examined there would be no evidence whatsoever against the accused in support of the charge levelled against him. As regards the complainant's wife, even assuming that the complainant's wife comes and states that the statements made by her in the matrimonial petition are correct and that is the only purpose for which she is proposed to be examined, unable to understand as to how the statement of the complainant's wife would be a legal evidence against the accused to prove that the accused had indulged in sexual intercourse with her. Thus we find that even if the complainant is given an opportunity, he will be unable to prove the charge against the accused. In this connection, it may be stated that on the 2nd of December, 1977, an application was made on behalf of the accused to the learned Magistrate requesting the Magistrate to direct the prosecution, namely, the complainant to submit a list of additional witnesses, if any, after the complainant had led the evidence, on the basis of which the charge was framed. To that application the learned Counsel appearing for the complainant, had given his reply wherein he had stated that the list of witnesses was already given with the complaint and the supplementary list could not be given at that stage. The learned Magistrate passed his order on the application stating therein that the list of witnesses was already given and hence there was no necessity to call upon the prosecution again to give a list of witnesses. This will further show that the complainant did not desire to produce any witnesses other than those cited in the list of witnesses given with the complaint. The argument now advanced by Mr. Vashi on behalf of the complainant, that in addition to the witnesses mentioned in the list appended to the complaint, he wanted to examine the complainant's wife is, therefore, clearly an after thought. As has already been stated earlier, the list of witnesses in the complainant mentioned only two witnesses, namely, the complainant's sister Bakula and the Inspector of Police, Gamdevi Police Station. Admittedly, the Inspector of Police, Gamdevi Police Station was not a witness inconnection with the charge levelled against the accused, but he was merely required to produce a complaint given by the complainant against his wife stating therein that his wife had left the house along with the ornaments. Thus we find that there is no substance in the complainant's grievance that, if an opportunity is given, he would be in a position to produce the evidence necessary to sustain the charge against the accused. It is for these reasons, we are of the view that the learned Sessions Judge had committed a prima facie error in remanding the matter for fresh evidence to be recorded before the framing of a fresh charge. The proper order in the present case ought to have been one of discharge of the accused. We may also in this connection state that even if all the evidence that was sought to be produced by the complainant and which has been discussed earlier, were to be accepted by the Court, no charge under section 497 of the said Code could be spelt out against the accused. The said evidence does not even touch the periphery of the main ingredient of the offence under section 497 of the said Code, namely, that the accused had sexual intercourse with the complainant's wife. It is for these reasons we are of the view that there is no substance in the prosecution launched by the complainant against the accused.
10. In the result, we are of the view that the Criminal Revision Application No. 451 of 1978 filed by the complainant will have to be dismissed and the Criminal Application No. 1477 of 1978 filed by the accused will I have to be allowed.
11. In the result, the order dated 20th January, 1978, passed by the of learned Magistrate framing the charge stands quashed as held by the learned Sessions Judge and the further order of remand of the matter to the trial Court, passed by the learned Sessions Judge also stands quashed. The accused therefore, stands discharged of the offence with which he was sought to be charged by the learned Magistrate.
12. Mr. Vashi applied for leave to appeal.
13. The application is rejected.