Research › Browse › Judgment

Gujarat High Court · body

1994 DIGILAW 381 (GUJ)

STATE OF GUJARAT v. Zalabhai Vadhabhai

1994-12-14

K.J.VAIDYA

body1994
KJ. VAIDYA, J. ( 1 ) THIS appeal by the State of Gujarat is directed against the impugned judgment and order dated 8-1-1988 rendered in Criminal Case No. 731 of 1987, passed by the learned JMFC, Santrampur, wherein the Respondent-Zalabhai and his father vadhabhai Ganeshbhai Baria who came to be tried for the alleged offences punishable under Section 498-A read with Section 114 of the Indian Penal Code, were at the end of trial ordered to be acquitted. ( 2 ) ). In substance, to briefly narrate the prosecution case as it gets unfolded from the complaint (Exh. 1) filed by Mr. P. B. Shukla, Dy. S. P. , Lunavada, the incident in question wherein Bai Lila hanged herself to death due to the alleged cruelty perpetrated upon her by her husband Zalabhai and her father-in- law, took place on 24-2-1987 at about 10. 00 a. m. at village Bhavar. On the basis of this allegation, after the investigation was over, the accused came to be chargesheeted to stand trial for the aforesaid alleged offences before the learned J. M. F. C. , Santrampur. Thereafter the learned Magistrate on 18-7-1987 framed charge (Exh-3) alleging that Bai Lila, aged 21 committed suicide due to the cruelty perpetrated by her husband Zalabhai and father-in-law Vadhabhai, and accordingly, they were liable to be punished under Sections 498-A and 114 of the IPC. ( 3 ) ). At trial, the respondents pleaded not guilty and claimed to be tried. The learned magistrate after duly appreciating the prosecution evidence brought on the record, acquitted the accused, giving rise to the present appeal. ( 4 ) ). Mr. P. S. Chapaneri, the learned APP for the Appellant-State, while challenging the impugned order of acquittal has raised a preliminary objection to the fact that the learned magistrate had indeed no jurisdiction whatsoever to conduct the trial in view of the crystal clear facts emerging from the police papers itself where the offences alleged against the respondents were not only under Section 498-A of the Indian Penal Code but the same also very well fell within the purview of Section 306 of Indian Penal Code, which pertains to "abating the commission of suicide" and for which the punishment provided is upto ten years. In this view of the matter, according to the learned APP since the case was exclusively triable by the Court of Sessions, the learned Magistrate committed patent illegality in trying the same and ultimately acquitting the accused. Thus, when the trial was ab-initio void, the matter deserves to be remanded to the Sessions court having the jurisdiction to try the same. ( 5 ) ). When Mr. D. F. Am in, the learned advocate for the respondents was confronted with this point-blank contention regarding jurisdictional error committed by the learned magistrate, raised by the learned APP, he had no answer and rightly so, except saying that having regard to the nature of evidence brought on the record impugned order of acquittal cannot be said to be illegal one. ( 6 ) ). Now the point raised by the learned APP indisputably being a neat question of law going to the root of the jurisdiction, the same is required to be decided in favour of the prosecution. It is indeed unfortunate that the learned Magistrate without applying his mind to the facts alleged in the complaint as well as in the police papers, mechanically framed the charge, assumed the jurisdiction, conducted the trial and acquitted the accused. Both the complaint at Exh. 1 and the charge at Exh. 3 are crystal clear indicating that the offence alleged against the respondents clearly fell within the purview of Section 306 of indian Penal Code and despite this glaring legal position, for whatever reasons, the learned Magistrate has committed a patent and obvious error in assuming the jurisdiction. It is hardly required to be told that whenever any learned Magistrate or for that purpose a learned Sessions Judge is required to frame a charge, he has to carefully peruse the police papers and on the basis of the same only, appropriate offences must be specifically alleged against the accused. Framing up of the charges is not an idle formality. As a matter of fact, so far as the commencement of the proceedings before the learned magistrate are concerned, in Chapter-XVI of the Code, there is a provision by way of section 207 of the Code, which pertains to supply to the accused a copy of police report and other documents. As a matter of fact, so far as the commencement of the proceedings before the learned magistrate are concerned, in Chapter-XVI of the Code, there is a provision by way of section 207 of the Code, which pertains to supply to the accused a copy of police report and other documents. This Section 207 in its provisio clearly indicates that the learned magistrate is required to peruse the statements recorded under sub-section (3) of Section 161 of the Code of all persons whom the prosecution proposes to examine as its witnesses. If the learned Magistrate had undertaken this exercise of applying his mind to the facts alleged in police papers, then in that case, the eventuality which has unfortunately be fallen in the instant case of not framing the charge under Section 306 of indian Penal Code would not have been there !! As a matter of fact, further guidelines are given in Section 211 of the Code as regards the contents of the charge. It appears that perhaps because in the chargesheet itself the Investigating Agency has stated the alleged offences were under Sections 498-A and 114 of Indian Penal Code, the learned Magistrate has mechanically fallen in trap and framed the charge accordingly. Thus, both the investigating Agency as well as the learned Magistrate have over-looked the specific provisions -Under Section 306 of Indian Penal Code, which distinctly refers to the abetment of suicide. In this view of the matter, neither Section 107 nor Section 114 of the indian Penal Code could have been resorted to. Be the case as it may, the fact remains that because both the Investigating Agency and thereafter the learned Magistrate did not apply their mind to the facts of the case, that the error in question has taken place. In this view of the matter, it further appears that the learned Magistrate instead of committing the case to the Court of Sessions conducted the case himself. Thus, this being ex-facie the jurisdiclional error going to the root, it renders the entire trial void-initio. Under the circumstances, neither the learned APP can be permitted to argue that there is sufficient evidence for recording the order of conviction and sentence nor the learned counsel for the accused can be permitted to submit that the order of acquittal should remain as it is. Under the circumstances, neither the learned APP can be permitted to argue that there is sufficient evidence for recording the order of conviction and sentence nor the learned counsel for the accused can be permitted to submit that the order of acquittal should remain as it is. This court is quite conscious of the fact that the alleged offence is of the year 1987 and by this time as many as 7 years have passed, but that would be hardly a ground to condone the patent mistake committed by the learned Magistrate because the offence alleged is indeed a very serious offence against the young women recently married and that such offences in the society arc found increasing day by day. ( 7 ) THAT takes us to the second submission of Mr. Am in that reading the complaint and the police papers as a whole, except the silence and passivity of Vadhabhai ganeshbhai father of the respondent No. 1, there is nothing on the basis of which he can ever be involved implicated even for the alleged offence of abetment, and if that is the ultimate situation, he should not be tried mechanically just for the sake of trying only, more particularly when by this time, he is about 72 years of age. There is a considerable substance in what Mr. Amin has submitted. Of course, the learned APP has vehemently submitted that once the case was to be remanded for de-novo trial, this Court should send the case as a whole without giving any benefit to Vadhabhai. The learned APP further submitted that if indeed there is nothing, then at the time of framing of the. charge vadhabhai can make an appropriate application for discharge, which the learned Sessions judge would consider on merits. Now this submission of the learned APP has no substance for the simple reason that when the facts alleged on face of it do not hold out even the bleakest prospect of conviction, it would be just a mechanical exercise of power by this Court in remanding the case qua Vadhabhai and that in turn would also to the said extent be non-application of mind of this Court. Moment the Court definitely feels on perusing the papers that there is no substance in the evidence and yet the matter is remanded, it would not only be non-application of mind of this Court but having regard to the fact that Vadhabhai is aged 72, it would be unnecessarily perpetrating hardships on the old man. Bearing in mind this point, this Court is of the view that if Vadhabhai can reasonably taken out while remanding the matter, there is nothing wrong in giving benefit to him by taking him out. At this stage, the learned APP persisting in his contention of remanding the case against Vadhabhai also, submitted that having regard to the provisions contained in Section 386 (a) which pertains to the powers of the appellate court, this Court has no power to remand the matter in piece meal As regards the powers of the appellate court Under Section 386, there cannot be any dispute but at the same time, this Court is certainly not powerless to make such orders as may be necessary to prevent the abuse of process of law and to secure the ends of justice. In fact there is indeed no express prohibition in Section 386 of the Code, putting falters on {he power of High Court under section 482 whereby it cannot pass any order to prevent the abuse of the process of Court and secure the ends of justice, Having regard to the facts and circumstancesof the cse to mechanically remand the case of Vadhabhai would be simply unfair, unjust and illegal. ( 8 ) IT is unfortunate that the police officer of the rank of Dy. SP has just lost sight of the fact that the offence alleged against the respondents was also an offence under Section 306 of Indian Penal Code and had indeed the Dy. SP taken due care, the mistake committed by the learned Magistrate might not have crept- in. Of course, that can never be a valid defence for any learned Magistrate who was also duty-bound to peruse the police papers and find out whether he had jurisdiction to try the case or not. ( 9 ) ). In the result, this appeal is partly allowed. The impugned order of acquittal passed qua both the accused is hereby quashed and set-aside. ( 9 ) ). In the result, this appeal is partly allowed. The impugned order of acquittal passed qua both the accused is hereby quashed and set-aside. The case is remanded to the sessions Court for retrial of Zalabhai Vadhabhai Baria only for the alleged offence punishable under Sections 498-A and 306 of Indian Penal Code. Having regard to the fact that the alleged offence is of the year 1987, the Sessions Court is directed to give this case a "top-most"priority" and decide the same preferably on or before 31st May, 1995. Writ to be issued forthwith. .