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2011 DIGILAW 1563 (BOM)

Danish Khan v. State

2011-12-21

F.M.REIS

body2011
JUDGMENT :- Heard Shri Arun Bras De Sa, learned Counsel appearing for the petitioners and Shri C.A. Ferreira, learned Public Prosecutor appearing for the respondents. 2. The above revision petition challenges the order dated 6/5/2011 passed by the learned Additional Sessions Judge, South Goa at Margao in Session Case No.4/2011 whereby charges were directed to be framed against the petitioners and other accused under Section 364-A, 394 r/w Section 34 of the Indian Penal Code. 3. Shri Arun Bras De Sa, learned Counsel appearing for the petitioners has pointed out on the basis of the material produced by the prosecution along with the charge sheet that the ingredients required to be satisfied under provisions of Section 364-A of the Indian Penal Code are not found and, as such, the question of directing framing of charge under Section 364-A of the Indian Penal Code against the petitioners and other accused does not arise at all. Learned Counsel has taken me through the provisions of Section 364-A of the said Code and pointed out that the ingredients required to frame such charges are found wanting in the material produced by the prosecution along with the charge sheet. Learned Counsel further pointed that the Division Bench of this Court has dealt with the provisions of Section 364-A of the Indian Penal Code in the judgment reported in 2008 ALL MR (Cri) 2830 in the case of Philips Fadrick D'Souza & Anr. V/s. State of Maharashtra & anr. Learned Counsel has particularly laid emphasis to para 3,9 to 19 and pointed out that considering the said judgment of the Division Bench of this Court, the learned Judge has erroneously directed the framing of charge against the petitioners under Section 364-A of the Indian Penal Code. Learned Counsel has also relied upon another judgment of the Division Bench of this Court reported in 2011 ALL MR (Cri) 2585 in the case of Mohammad Murtuza Mohammed Mosin Shaikh V/s. The State of Maharashtra. Learned Counsel has also relied upon an unreported judgment of the Delhi High Court dated 01/09/2011 passed in CRL. REV. P. 777/2010 in the case of Vikas Tyagi & Anr. V/s. State. Learned Counsel appearing for the petitioners has also relied upon another judgment of Gwalior Bench of the Madhya Pradesh High Court passed in Criminal Appeal No.295/2003 dated 28/07/2011. Learned Counsel has also relied upon an unreported judgment of the Delhi High Court dated 01/09/2011 passed in CRL. REV. P. 777/2010 in the case of Vikas Tyagi & Anr. V/s. State. Learned Counsel appearing for the petitioners has also relied upon another judgment of Gwalior Bench of the Madhya Pradesh High Court passed in Criminal Appeal No.295/2003 dated 28/07/2011. Learned Counsel has pointed out that considering the ratio laid down by this Court as well as the other High Court in the judgments referred herein above, the learned Sessions Judge has erroneously directed framing of charge under Section 364-A of the Indian Penal Code. Learned Counsel further pointed out that he does not challenge the direction of the learned Judge to frame charge under 'Section 394 read with Section 34 of the Indian Penal Code. Learned Counsel, as such, submitted that the impugned order deserves to be quashed and set aside to that extent. 4. On the other hand, Shri C.A. Ferreira, learned Public Prosecutor appearing for the prosecution has supported the impugned order. Learned Public Prosecutor has pointed out that the prosecution has brought material to establish all the said ingredients of the Indian Penal Code. Learned Public Prosecutor further pointed out that the judgments which are relied by the learned Counsel appearing for the petitioners are in matters where whole trial has been completed and the accused therein have been acquitted. Learned Counsel further pointed out that at the stage of the framing of the charge it is not necessary for the Court to give any reason nor to minutely examine the evidence for the purpose of framing the charge. Learned Counsel further pointed out that there is sufficient material on record to frame the charge against the petitioners under Section 364-A of the Indian Penal Code. In support of his submissions, the learned Public Prosecutor relied upon the judgment of the Apex Court reported in 2008 (10) SCC 681 in the case of Sanghi Brothers (Indore) Private Limited V/s. Sanjay Choudhary & Ors. as well as the judgment of the Apex Court on case of Ashish Chadha V/s. Smt. Asha Kumari & Anr. and another judgment of the Apex Court reported in 2011 ALL SCR 24 in the case of Sajjan Kumar V/s. Central Bureau of Investigations. 5. as well as the judgment of the Apex Court on case of Ashish Chadha V/s. Smt. Asha Kumari & Anr. and another judgment of the Apex Court reported in 2011 ALL SCR 24 in the case of Sajjan Kumar V/s. Central Bureau of Investigations. 5. Upon hearing the learned Counsel appearing for the parties, I find that the learned Judge while passing the impugned order did not have the benefit of considering the judgments relied upon by the learned Counsel appearing for the petitioners as also the judgments relied by the learned Public Prosecutor. Without going into the merits or otherwise of the rival contentions as to whether the judgments relied upon by both the parties are applicable to the facts of the case or not, it would be appropriate that the learned Additional Sessions Judge is directed to decide as to whether there is sufficient material to direct the framing of charge under Section 364-A of the Indian Penal Code, after hearing both the parties in accordance with law. All the contentions of both the parties on merits are left open. 6. In view of the above, I pass the following order: ORDER (i) The impugned order dated 6/05/2011 directing the framing of charge under Section 364-A of the Indian Penal Code is quashed and set aside. (ii) Learned Additional Sessions Judge is directed to decide about the framing of charge under Section 364-A of the Indian Penal Code afresh after hearing both the parties in accordance. (iii) All the contentions of both the parties with that regard are left open. (iv) The rest of the impugned order dated 6/05/2011 framing the charge under Section 394 read with Section 34 of the Indian Penal Code stands confirmed. (v) The above petition stands disposed of accordingly. (vi) Interim order stands accordingly vacated. (vii) The Additional Session Judge is directed to proceed to consider the matter on 9/01/2012 at 10.00 a.m. Ordered accordingly.