Madhya Pradesh High Court
Sanjeev Ahirwar vs The State Of Madhya Pradesh on 20 June, 2022
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 20th OF JUNE, 2022
CRIMINAL REVISION NO. 2104 of 2022
Between:-
SANJEEV AHIRWAR S/O SHRI
PRAN SINGH @ PRAYAG SINGH
AHIRWAR, AGED 20 YEARS,
OCCUPATION - LABOUR,
RESIDENT OF PALIWAL COLONY,
NEAR NAHAR PULIYA, SIRONJ,
TEHSIL SIRONJ, DISTRICT
VIDISHA (MADHYA PRADESH)
........APPLICANT
(BY SHRI GAURAV MISHRA - ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH
THROUGH POLICE STATION
SIRONJ DISTRICT VIDISHA
(MADHYA PRADESH)
2. CHOTELAL AHIRWAR S/O SHRI
KHILAN SINGH AHIRWAR,
RESIDENT OF WARD NO. 2,
PALIWAL COLONY, NEAR WARE
HOUSE, SIRONJ, DISTRICT
VIDISHA (MADHYA PRADESH)
2
........RESPONDENTS
(BY SHRI NAROTTAM SHARMA - ADVOCATE)
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This application coming on for hearing this day, the Court passed
the following:
ORDER
This criminal revision under Sections 397, 401 of CrPC has been filed against the order dated 05.05.2022 passed by First Additional Sessions Judge, Sironj, District Vidisha in S.T. No.14/2022, by which the charges under Section 304 (Part-II) of IPC and under Section 184 and 185 of Motor Vehicles Act have been framed.
2. It is submitted by the counsel for the applicant that according to the prosecution case, the applicant and two more persons namely deceased Jeevan Ahirwar and Deepak @ China Ahirwar were going on a motorcycle. The applicant was under the influence of alcohol. He was driving the motorcycle in rash and negligent manner. Near Chaudakhedi junction, the applicant could not handle the motorcycle at a curve, as a result, the motorcycle fell down in a drain. The applicant himself as well as the deceased Jeevan Ahirwar sustained serious injuries, whereas Deepak @ China succeeded in jumping from the motorcycle. Jeevan Ahirwar succumbed to the injuries sustained by him. In the MLC of the applicant, it is mentioned that smell of alcohol was coming. The police after completing the investigation filed the charge-sheet under Section 304 (Part-II) of IPC and under Sections 184 and 185 of Motor Vehicles Act. By the impugned order, the Trial Court framed the charges mentioned above.
33. It is submitted by the counsel for the applicant that there is no sufficient scientific evidence to prima facie show that the applicant was under the influence of alcohol. Merely because the presence of alcohol smell coming out from the oral cavity at the time of medical has been mentioned by the Doctor in Pre-MLC does not mean that the applicant was under the influence of alcohol. Even otherwise, it is a simple case of accident and, therefore, the Trial Court has committed a material illegality by framing charges under Section 304 (Part-II) of IPC.
4. Per contra, the revision is vehemently opposed by the counsel for the State. It is submitted that the Motor Vehicles Act does not permit a person to drive the vehicle after consuming liquor. Drink and drive is not only detrimental to the life of the driver as well as the pillion rider, but it is also detrimental to the life of all the citizens who are walking or driving on the road. Under these circumstances, as the accident took place because of the fact that the driver of the vehicle was not in a fit state of mind on account of consumption of liquor, therefore, it is clear that the Trial Court did not commit any mistake by framing the charges under Section 304 (Part-II) of IPC.
5. Heard the learned counsel for the parties.
6. In the Pre-MLC, the Doctor has specifically pointed out the presence of alcohol smell from the oral cavity of the applicant. Whether the said observation made by the Doctor in the Pre-MLC of the applicant is sufficient to record the conviction or not, is a different matter, but at present there is prima facie evidence on record to show that the applicant was under the influence of alcohol.
7. It is well established principle of law that roving and meticulous 4 enquiry is not permissible at the stage of framing charge. If it is found that there is a grave suspicion that the applicant might have committed the offence, then the said material is sufficient for framing charges.
8. Counsel for the petitioner could not point out any provision of law which permits a person to drive a vehicle after consuming liquor. Even otherwise, driving a vehicle in drunken condition or under the influence of drug is an offence under Section 185 of the Motor Vehicles Act.
9. The Supreme Court in the case of State of Sanjeev Nanda reported in (2012) 8 SCC 450 has dealt with the effect of alcohol on the mind and body of a driver. In paragraph 86 and 87, it has been held as under:-
"86. Drunken driving has become a menace to our society. Every day drunken driving results in accidents and several human lives are lost, pedestrians in many of our cities are not safe. Late night parties among urban elite have now become a way of life followed by drunken driving. Alcohol consumption impairs consciousness and vision and it becomes impossible to judge accurately how far away the objects are. When depth perception deteriorates, eye muscles lose their precision causing inability to focus on the objects. Further, in more unfavourable conditions like fog, mist, rain, etc., whether it is night or day, it can reduce the visibility of an object to the point of being below the limit of discernibility. In short, alcohol leads to loss of coordination, poor judgment, slowing down of reflexes and distortion of vision.
87. Punishment meted out to a drunken driver is at least a deterrent for other such persons getting away with minor punishment and fine. Such incidents are bound to increase with no safety for pedestrians on the roads. The contention raised by the learned Senior Counsel that the accused was not under the influence of liquor or beyond the limit prescribed under the Motor 5 Vehicles Act and he was in his senses and the victims were at fault being on the middle of the road, is without any substance and only to be rejected."
10. Furthermore, it is well established principle of law that while framing charges, the Court is required to evaluate the material and documents on record. The Court is not required to conduct a roving enquiry into the probative value of material on record. If material indicates that the accused might have committed the offence, then framing of charge is necessary.
11. The Supreme Court in the case of Sheoraj Singh Ahlawat and others Vs. State of Uttar Pradesh and another reported in (2013) 11 SCC 476 has held as under:-
"15. This Court partly allowed the appeal qua the parents-in-law while dismissing the same qua the husband. This Court explained the legal position and the approach to be adopted by the court at the stage of framing of charges or directing discharge in the following words: (Onkar Nath case [(2008) 2 SCC 561 :
(2008) 1 SCC (Cri) 507] , SCC p. 565, para 11) "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 therefrom, 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 6 offence alleged would justify the framing of charge against the accused in respect of the commission of that offence."
(emphasis supplied)
16. Support for the above view was drawn by this Court from the earlier decisions rendered in State of Karnataka v. L. Muniswamy [(1977) 2 SCC 699 : 1977 SCC (Cri) 404 : 1977 Cri LJ 1125] , State of Maharashtra v. Som Nath Thapa [(1996) 4 SCC 659 :
1996 SCC (Cri) 820 : 1996 Cri LJ 2448] and State of M.P. v. Mohanlal Soni [(2000) 6 SCC 338 : 2000 SCC (Cri) 1110 : 2000 Cri LJ 3504] . In Som Nath case [(1996) 4 SCC 659 : 1996 SCC (Cri) 820 : 1996 Cri LJ 2448] the legal position was summed up as under:
(SCC p. 671, para 32) "32. ... if on the basis of materials on record, a court could come to the conclusion that commission of the offence is a probable consequence, a case for framing of charge exists. To put it differently, if the court were to think that the accused might have [Ed.: The words "might have"
and "has" are emphasised in original.] committed the offence it can frame the charge, though for conviction the conclusion is required to be that the accused has [Ed.: The words "might have" and "has" are emphasised in original.] committed the offence. It is apparent that at the stage of framing of a charge, probative value of the materials on record cannot be gone into; the materials brought on record by the prosecution has to be accepted as true at that stage."
(emphasis supplied)
17. So also in Mohanlal case [(2000) 6 SCC 338 : 2000 SCC (Cri) 1110 : 2000 Cri LJ 3504] this Court referred to several previous decisions and held that the judicial opinion regarding the approach to be adopted for framing of charge is that such charges should be framed 7 if the court prima facie finds that there is sufficient ground for proceeding against the accused. The court is not required to appreciate evidence as if to determine whether the material produced was sufficient to convict the accused. The following passage from the decision in Mohanlal case [(2000) 6 SCC 338 : 2000 SCC (Cri) 1110 : 2000 Cri LJ 3504] is in this regard apposite: (SCC p. 342, para 7) "7. The crystallised judicial view 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."
18. In State of Orissa v. Debendra Nath Padhi [(2005) 1 SCC 568 : 2005 SCC (Cri) 415] this Court was considering whether the trial court can at the time of framing of charges consider material filed by the accused. The question was answered in the negative by this Court in the following words: (SCC pp. 577 & 579, paras 18 & 23) "18. We are unable to accept the aforesaid contention. The reliance on Articles 14 and 21 is misplaced. ... Further, at the stage of framing of charge roving and fishing inquiry is impermissible. If the contention of the accused is accepted, there would be a mini-trial at the stage of framing of charge. That would defeat the object of the Code. It is well settled that at the stage of framing of charge the defence of the accused cannot be put forth. The acceptance of the contention of the learned counsel for the accused would mean permitting the accused to adduce his defence at the stage of framing of charge and for examination thereof at that stage which is against the criminal jurisprudence. By way of illustration, it may be noted that the plea of alibi taken by the accused may have to be examined at 8 the stage of framing of charge if the contention of the accused is accepted despite the well-settled proposition that it is for the accused to lead evidence at the trial to sustain such a plea. The accused would be entitled to produce materials and documents in proof of such a plea at the stage of framing of the charge, in case we accept the contention put forth on behalf of the accused. That has never been the intention of the law well settled for over one hundred years now. It is in this light that the provision about hearing the submissions of the accused as postulated by Section 227 is to be understood. It only means hearing the submissions of the accused on the record of the case as filed by the prosecution and documents submitted therewith and nothing more. The expression 'hearing the submissions of the accused' cannot mean opportunity to file material to be granted to the accused and thereby changing the settled law. At the state of framing of charge hearing the submissions of the accused has to be confined to the material produced by the police.
***
23. As a result of aforesaid discussion, in our view, clearly the law is that at the time of framing charge or taking cognizance the accused has no right to produce any material."
(emphasis supplied)
19. Even in Rumi Dhar v. State of W.B. [(2009) 6 SCC 364 : (2009) 2 SCC (Cri) 1074] , reliance whereupon was placed by the counsel for the appellants, the tests to be applied at the stage of discharge of the accused person under Section 239 CrPC were found to be no different. Far from readily encouraging discharge, the Court held that even a strong suspicion in regard to the commission of the offence would be sufficient to justify framing of charges. The Court observed: (SCC p. 369, para 17) 9 "17. ... While considering an application for discharge filed in terms of Section 239 of the Code, it was for the learned Judge to go into the details of the allegations made against each of the accused persons so as to form an opinion as to whether any case at all has been made out or not as a strong suspicion in regard thereto shall subserve the requirements of law."
20. To the same effect is the decision of this Court in Union of India v. Prafulla Kumar Samal [(1979) 3 SCC 4 : 1979 SCC (Cri) 609] where this Court was examining a similar question in the context of Section 227 of the Code of Criminal Procedure. The legal position was summed up as under: (SCC p. 9, para 10) "10. Thus, on a consideration of the authorities mentioned above, the following principles emerge:
(1) 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.
(2) 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.
(3) The test to 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.
(4) That in exercising his jurisdiction under 10 Section 227 of the Code the Judge which under the present Code is a senior and experienced Judge cannot act merely as a post office or a mouthpiece 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."
12. Considering the totality of the facts and circumstances of the case, coupled with the fact that prima facie there is a material to show that the applicant was under the influence of alcohol at the time of accident and he was driving the vehicle negligently, this Court is of the considered opinion that the Trial Court did not commit any mistake in framing of charge under Section 304 (Part-II) of IPC.
13. Accordingly, the revision fails and is hereby dismissed.
14. However, it is made clear that any observation made by this Court shall not have any bearing on the final outcome of the trial as the revision has been decided in the light of limited scope of interference. The Trial Court shall decide the trial strictly on the basis of evidence which would come on record.
(G.S. AHLUWALIA) JUDGE Abhi ABHISHEK CHATURVEDI 2022.06.21 18:47:15 +05'30'