Calcutta High Court (Appellete Side)
Vikram Chatterjee @ Bikram Chatterjee vs The State Of West Bengal & Anr on 13 February, 2019
Author: Shivakant Prasad
Bench: Shivakant Prasad
IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
APPELLATE SIDE
Present :
The Hon'ble Justice Shivakant Prasad
CRR 3241 of 2018
with
CRAN 3192 of 2018
Vikram Chatterjee @ Bikram Chatterjee
-Vs.--
The State of West Bengal & Anr.
For the Petitioner : Mr. Tirthankar Ghosh
Mr. Satadru Lahiri
Md. M. Hossain
For the State : Mr. S. G. Mukherjee
Mr. Sudip Ghosh
For the O.P./Appellant : Mr. Sandipan Ganguly
Mr. Soumopriyo Chowdhury
Mr. S. Mohanta
Heard on : 04.02.2019
C.A.V. on : 04.02.2019
Judgment on : 13.02.2019
SHIVAKANT PRASAD, J.
In this revisional application, the petitioner Vikram Chatterjee @ Bikram Chatterjee has assailed the order dated October 9, 2018 passed by the learned Additional Sessions Judge, 16th Court, Alipore, 24 Parganas (South) in connection with SC No. 3(3) of 2018 arising out of CGR Case No. 1771/2017 corresponding to Tollygunge Police Station Case No. 109 dated 29.4.2017 under Sections 279/338/427/304 Part II of the Indian Penal Code, 1860, thereby rejecting the petitioner's prayer for discharge under Section 227 of the Criminal Procedure Code.
The brief facts leading to this case is that the petitioner a renowned actor of Film Industry has been arraigned as an accused in the above referred case for the reason of having suffered an unfortunate accident due to certain technical fault in his vehicle as a result, his friend co-passenger succumbed to death due to fatal injuries.
On the basis of General Diary being GD No. 2824 dated 29.4.2017 lodged by one Sadhu Charan Singha, S.I. of Police, Tollygunge Police Station Case No. 109 dated 29.4.2017 was registered and on completion of investigation the Investigating Agency submitted final report being charge-sheet No. 114/2017 dated 19.7.2017 under Sections 279/338/427/304 Part II of the Indian Penal Code, 1860 before the learned Chief Judicial Magistrate, Alipore, 24 Parganas (South) who has taken cognizance thereof. The case was committed to the Court of Sessions Judge, Alipore, 24 Parganas (South) after supply of the copies of the police papers under Section 207 of the Code, who transferred the case to Additional District & Sessions Judge, 16th Court, Alipore, 24 Parganas (South) for trial and disposal after talking cognizance under Section 193 of the Code.
The petitioner filed an application under Section 227 of the Code of Criminal Procedure praying for his discharge from the case on the ground that there is no sufficient material evidence to proceed against the accused, on the basis of charge-sheet because the evidence and documents ex-facie do not disclose any suspicious circumstances against the accused so as to frame charge against him.
Mr. Tirthankar Ghosh, learned counsel appearing for the petitioner submitted that if two views are possible on scrutiny of evidence at the time of framing of charge, one of them which gives rise to suspicion only, as distinguished from grave suspicion as to the guilt of the accused, then learned Judge has to see whether the trial will end in conviction or acquittal.
It is submitted that to bring home the offence alleged under Section 304 II IPC one has to cause death by doing an act with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death as defined under Section 299 IPC and Court has to satisfy itself with regard to five exceptions as enumerated in Section 300 IPC.
Mr. Ghosh further submitted that the prosecution has to prove that a vehicle has to be driven in such a manner so rash or so negligent as to endanger human life, or to be likely to cause hurt or injury to any other person to bring home charge under Section 279 IPC and argued that it is not possible to hold that the petitioner drove the vehicle in a lonely road in the yester night on the date of occurrence to cause hurt or injury to anybody endangering human life due to the alleged rash and negligent driving.
As regards charge under Section 338 of IPC, prosecution is called upon to prove that one has to cause grievous hurt to any person by doing any act so rashly or negligently so as to endanger human life, or the personal safety of others and thus argued that ingredients of offence under Section 338 IPC cannot be satisfied on evidence in the facts of the case.
It is also submitted that the offence under Section 427 IPC is similar to that of Section 425 IPC. I agree on this contention that the only distinction between the two is in the extent of the charge done by the mischief. This Section is attracted when the damage caused by mischief is to an amount of fifty rupees or upwards and to prima facie bring home the charge of Section 425 IPC one has knowledge that he is likely to cause, wrongful loss or damage to the public or to any person, causes the destruction of any property or any such change in any such property, or in the situation thereof and destroys or diminishes its value or utility or affects it injuriously.
Under Section 185 of M.V. Act one has to drive vehicle in a drunken condition but according to Mr. Ghosh, there is no prima facie case made out to hold such charge against the petitioner as he was not found in a drunken condition.
With the above contention Mr. Ghosh submitted that the petitioner prayer for discharge from the instant case should have been allowed as the evidence prima facie collected by the Investigating Officer, it cannot be said that suspicion can be drawn against the petitioner for commission of the offence as alleged in the charge-sheet.
It reflects from the order impugned that upon hearing both parties the learned Judge has rejected the application under Section 227 of the Code of Criminal Procedure fixing the matter on December 3, 2018 for consideration of charge against the accused/petitioner by the impugned order dated October 9, 2018 passed in SC 3(3) of 2018 arising out of CGR Case No. 1771 of 2017.
Mr. Ghosh submitted by adverting to the fact of the case that there is no clinching evidence to show that the accused/petitioner was drunk at the time of driving the vehicle and due to collision the right side of the vehicle was damaged and the accused/petitioner inspite of being driver of the vehicle did not receive much injuries on his person, whereas the co-passenger who was seating at the left side of the vehicle, was not damaged due to collision but suffered fatal injury on her person because she was not wearing seat belt and for that asking the accused/petitioner to face ordeal of criminal trial for commission of the alleged offences punishable under Section 304 Part II of the Indian Penal Code, 1860 cannot be considered within the realm of law.
It is also submitted that the learned Court has rejected the petition of discharge in a mechanical manner merely guided by some general prejudices because the material evidence are collected in the course of investigation of the alleged offences on mere assumptions without intelligently scrutinizing and testing the probabilities, truthfulness, genuineness and otherwise dependability of the accusations.
It is further submitted that the learned Judge has relied upon vague surmises and conjectures for drawing adverse inference as to the complicity of the accused/petitioner in connection with the instant case because of tremendous media hype as well as public uproar in the city over the unfortunate incident.
Mr. Ghosh refers to a decision in case of Mohan Lal vs. State of Punjab [(2018) SCC Online SC 974) to submit that since the investigation in the present case was conducted by the Police Officer who himself was the complainant, the trial is vitiated and as such the petitioner is entitled to acquittal and adverts my attention to the observation made in paragraph 18 and 19 reproduced thus for profitable understanding :
"18. In a criminal prosecution, there is an obligation cast on the investigator not only to be fair, judicious and just during investigation, but also that the investigation on the very face of it must appear to be so, eschewing any conduct or impression which may give rise to a real and genuine apprehension in the mind of an accused and not mere fanciful, that the investigation was not fair. In the circumstances, if an informant police official in a criminal prosecution, especially when carrying a reverse burden of proof, makes the allegations, is himself asked to investigate, serious doubts will naturally arise with regard to his fairness and impartiality. It is not necessary that bias must actually be proved. It would be illogical to presume and contrary to normal human conduct, that he would himself at the end of the investigation submit a closure report to conclude false implication with all its attendant consequences for the complainant himself. The result of the investigation would therefore be a foregone conclusion.
19. The discussion in the present case may not be understood as confined to the requirements of a fair investigation under the NDPS Act only carrying a reverse burden of proof. Balder Singh (supra) related to a prosecution under Section 165A of the IPC. Nonetheless, it observed that if the informant were to be made the investigating officer, it was bound to reflect on the credibility of the prosecution case. Megha Singh (supra) concerned a prosecution under the Terrorist and Disruptive Activities (Prevention) Act, 1985. It was held that the Head Constable being the complainant himself could not have proceeded with the investigation and it was a practice, to say the least, which should not be resorted to so that there may not be any occasion to suspect fair and impartial investigation. Rajangam (supra) was a prosecution under the NDPS Act, an objection was taken that PW-6 who apprehended the accused could not have investigated the case. Upholding the objection, relying on Megha Singh (supra) the accused was acquitted."
It has been ruled by the Hon'ble Apex Court that the trial itself would stand vitiated where the complainant himself had conducted investigation.
In the above cited decision reference to cases in Bhagwan Singh Vs. The State of Rajasthan [(1976) 1 SCC 15], Megha Singh vs. State of Haryana [(1996) 11 SCC 709], State by Inspector of Police, Narcotic Intelligence Bureau, Madurai, Tamil Nadu vs. Rajangam [(2010) 15 SCC 369] have been taken into consideration to conclude that while appreciating evidence on record, the fact that the investigation was conducted by the informant himself would weigh with the Court in ordering acquittal of the accused.
In case of Bhagwan Singh (supra) the Apex Court held that if the complainant himself was the Investigating Officer the case of prosecution would not be free from doubt. In Megha Singh (supra) while recording acquittal on that count it was observed that such practice should not be resorted to.
In case of State represented by Inspector of Police, Vigilance & Anti-Corruption, Tiruchirapally, Tamil Nadu vs. V. Jayapaul (supra) Hon'ble Apex Court also held that the investigation by the same officer who 'lodged' the FIR would prejudice the accused inasmuch as the Investigating Officer cannot be expected to act fairly and objectively and that such investigation could be assailed on the ground of bias or real likelihood of bias on the part of the Investigating Officer which has to be subject to proof.
By referring to above cited decisions Mr. Ghosh fortifies his argument that the Investigating Officer of the case in hand being the complainant himself was largely interested in arraigning the petitioner as an accused without any evidence collected in respect of the offences charged with.
I am unable to agree with such argument of Mr. Ghosh at this juncture taking into consideration the entirety of the fact as emerges from the case diary pressed in service by Mr. S.G. Mukherjee, learned Public Prosecutor appearing for the State/opposite party wherefrom it is prima facie revealed that in the yester night of the incident, the petitioner was on the steering as the driver of the vehicle driving at the speed of 105 k.m. per hour. However, it is for the learned trial Court to consider the police papers as to whether the offences alleged would come within the realm Section 304A IPC or under Section 304 II of IPC and whether the Investigating Officer was bias to submit charge-sheet against the petitioner for the major section under Section 304 II of IPC but such observation can be arrived at on appraisal of the evidence of the prosecution witnesses after their examination on oath.
In rebuttal, Mr. S. G. Mukherjee learned counsel for the State invites my attention to a decision in case of Mukesh Singh Vs. State (Narcotic Branch of Delhi) wherein the similar question was raised for consideration as to whether investigation held by police officer who himself was the complainant would vitiate the trial entitling the petitioner accused to an order of acquittal. But the Hon'ble Apex Court found it difficult to accept the view taken in case of Mohan Lal (supra) with observation that it would be completely different thing to say that the trial itself would be vitiated for such infraction and accordingly, the Hon'ble Court referred the question to be decided by a Bench of appropriate strength before the Hon'ble the Chief Justice of India.
The decision in case of State of Punjab Vs. Baldev Singh [(1999) 6 SCC 172) by Constitution Bench of the Hon'ble Supreme Court was relied in Mukesh Singh (supra) with the conclusion In paragraph 57(3) to the effect that a search made by an empowered officer, on prior information, without informing the person of his right that if he so requires, he shall be taken before a gazetted officer or a Magistrate for search and in case he so opts, failure to conduct his search before a gazetted officer or a Magistrate, may not vitiate the trial but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered from his person, during a search conducted in violation of the provisions of Section 50 of the Act.
Judgments in Bhaskar Ramappa Madar and Others vs. State of Karnataka [(2009) 11 SCC 690] and Surender Alias Kala Vs. State of Haryana [(2016) 4 SCC 617], were also relied to argue that the investigation would not get vitiated merely because it was conducted by the informant himself.
Mr. Mukherjee, thus referring to the above cited decisions argued that investigation of the case by the complainant who registered the FIR and submitted charge-sheet against the petitioner would not vitiate.
I have heard Mr. Ghosh, appearing for the petitioner, Mr. Mukherjee appearing for the State and Mr. Sandipan Ganguly learned counsel appearing for the opposite party no. 2 and perused the impugned order. I find that the learned Judge has taken into consideration the case record together with the case diary and prima facie was of the view that the vehicle driven by the petitioner was at speed of 105 k.m. per hour and sometimes few seconds the speed was reduced to 95 k.m. per hour but no break was used at the time of collision which is beyond the permissible limit of 40 k.m. per hour for 24 hours. As regards negligence or knowledge the petitioner who drove the car had the best knowledge as to his skill and capacity of driving of the vehicle and driving at a high speed at that hour would endanger human life when his deceased a co-passenger was in the front seat.
I have made it clear in my foregoing paragraph that the learned trial Court has to consider the police papers at the time of consideration of charge as to whether the offences alleged in the charge-sheet would come within the realm of Section 304A IPC or under Section 304 II of IPC.
It would be useful to rely on the authority of the Hon'ble Supreme Court in the case of Sheoraj Singh Ahhawat & Ors. vs. State of Uttar Pradesh & Anr. reported in AIR 2013 SC 52 in which, after analyzing various decisions on the point, the view expressed in para 11 in Onkar Nath Mishra vs. State (NCT of Delhi), (2008) 2 SCC 561 was taken into consideration which reads thus :
"11. It is trite that at the stage of framing of charge the court is required to evaluate the material and documents on record with a view to finding out if the facts emerging there from, taken at their face value, disclosed the existence of all the ingredients constituting the alleged offence. At that stage, the court is not expected to go deep into the probative value of the material on record. What needs to be considered is whether there is a ground for presuming that the offence has been committed and not a ground for convicting the accused has been made out. At that stage, even strong suspicion founded on material which leads the court to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged would justify the framing of charge against the accused in respect of the commission of that offence."
In State of Bihar vs. Remesh Singh reported in 1978 SCR(1) 257 it has been observed that it is neither necessary nor advisable for mention in any great detail the facts of the prosecution case or refer to all the materials and the evidence which may be produced by the prosecutor when a trial proceeds in the Sessions Court. Unnecessary details in that regard have got to be avoided so that it may not prejudice either the prosecution or the defence.
Under Section 226 of the Code of Criminal Procedure while opening the case for the prosecution the prosecutor has to describe the charge against the accused and state by what evidence he proposes to proof the guilt of the accused. At the initial stage the duty of the Court to consider the record of the case and the documents and the submissions of the parties are required to be considered. Thereafter only the Judge has to consider as to whether he considers for the discharge of the accused in respect of any of the offence under Section 227 or to frame charge under Section 228 of the Code. Therefore, the learned Judge while considering the charge for the purpose of framing in respect of a particular offence has to form an opinion that there is ground for presuming that the accused has committed an offence charged exclusively triable by Sessions Court. Both the provisions are to be read conjointly, however, it is not obligatory for the Judge at that stage of the trial to consider in detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter under Section 227 or 228 of the Code. At that stage the Court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is a strong suspicion which leads the court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. The presumption of the guilt of the accused which is to be drawn at the initial stage is not in the sense of the law governing the trial of criminal cases. The accused may have contentions in his defence in respect of the offences charged with but the evidence has to be led at the trial for the conclusion for the defence or for the prosecution.
Therefore, it emerges from such observation made by the Hon'ble Supreme Court that at the initial stage of opening of the trial it is not open for the trial Court to make a roving or fishing inquiry into the probabilities and surrounding circumstances concerning the offence.
I am of the considered opinion that trial starts after the framing of the charge on the basis of the charge-sheet and the case diary containing the documentary evidence collected at the time of investigation. Indubitably, charge-sheet in respect of the aforesaid sections has been submitted on conclusion of investigation on finding prima facie case which are required to be substantiated on evidence to be adduced by the prosecution at the trial to hold the petitioner guilty or not guilty of the offences charged with.
Ergo, having regard to the cardinal principle of law in the field and on perusal of the order impugned I do not find that it suffers from any illegality. Notwithstanding the observation so made in this judgment I hold that it shall have no bearing in the trial of the case and the learned trial Court will proceed to consider framing of the charge in accordance with law and to take all endeavor for disposal of the case as expeditiously as possible.
In the result, revisional application being No. CRR 3241 of 2018 and CRAN No. 3192 of 2018 are disposed of.
Urgent certified photocopy of this Judgment, if applied for, be supplied to the parties upon compliance with all requisite formalities.
(SHIVAKANT PRASAD, J.)