Research › Search › Judgment

Bombay High Court · body

2011 DIGILAW 938 (BOM)

Anil Manohar Walke v. Pramod Uttamrao Tidke

2011-08-02

A.P.BHANGALE

body2011
Judgment : 1. Heard Mr. P.S.Patil, Adv. for the Applicant and Mr. R.J.Mirza, Adv. for the Respondent. 2. By way of instant application, the applicant has prayed for to quash and set aside the impugned judgment and order in Criminal Revision No.109 of 2009, dt.19.6.2010 whereby the learned 4th Additional Sessions Judge, Amravati was pleased to quash and set aside the order regarding framing of charge against the accused u/s. 506 of the Indian Penal Code in Regular Criminal Case No.218 of 2006. 3. It appears that Criminal Complaint Case No.218 of 2006 was filed by the present applicant in the Court of Chief Judicial Magistrate, Amravati against Nandkishor Vishwanath Raut (reportedly dead) and Pramod Uttamrao Tidke (sole respondent) alleging that, on 10.3.2006, the applicant was abused as “Nalayaka” by Nandkishor Raut (deceased) and the present respondent Pramod Tidke threatened the applicant not to depose and submit documents as evidence before the Enquiry Officer. It may be noted that, in the enquiry in respect of complaint made by certain students to the Director of vocational Education and Training, Mumbai, the present applicant was summoned to give his statement and documentary evidence. This fact gave rise to the incident, as alleged by the applicant (Original complainant). The applicant had to lodge a complaint dt.10.3.2006 reporting about the incident to City Kotwali Police Station, Amravati against both the accused. The Police Station had not taken cognizance of the complaint. Therefore, the applicant was constrained to file private complaint which was registered as Criminal Complaint Case No.218 of 2006, in which verification of the complainant was recorded by the learned Chief Judicial Magistrate, Amravati at Exh.9. The learned Magistrate, who perused the complaint and evidence led by the witnesses, after hearing the learned Counsel for the complainant, issued process for the offence punishable u/ss.294 and 506-I of the Indian Penal Code. Pursuant to the order of issuance of process dt.23.7.2007, the respondent/accused appeared in the proceedings. After recording the evidence before charge, the learned trial Magistrate, by a reasoned order dt.5.3.2009, decided to frame charge against the respondent for an offence punishable u/s.506 of the Indian Penal Code after recording satisfaction on the ground that giving threat by the accused to cause injury is sufficient to frame charge u/s.506 of the Indian Penal Code. After recording the evidence before charge, the learned trial Magistrate, by a reasoned order dt.5.3.2009, decided to frame charge against the respondent for an offence punishable u/s.506 of the Indian Penal Code after recording satisfaction on the ground that giving threat by the accused to cause injury is sufficient to frame charge u/s.506 of the Indian Penal Code. The order was challenged in Criminal Revision No.109 of 2009, which was set aside by the learned Additional Sessions Judge. 4. It appears that the learned Additional Sessions Judge heard the revision on merits and made a reference to the ingredients of the offence punishable u/s.506 of the Indian Penal Code and held that the evidence brought on record revealed that the revision petitioner had uttered words; mere abuses to respondent no.1 are not sufficient and he must be beaten. Considering the same, the learned Additional Sessions Judge found that there was no direct threat to the complainant to beat him as the complainant had nowhere stated that, after hearing the words uttered by the accused, alarm was caused in his mind and he was frightened. The threat which was given by the petitioner to respondent no.1 certainly was not in respect of the property or reputation of the complainant or to cause him to do any act which he was not legally bound to do or omit to do any act which he was legally entitled to do. Similarly, the threat which was allegedly given by the petitioner to respondent no.1 was also not to cause death or to cause grievous hurt or to cause disturbance of any property or to cause grievous hurt or to cause destruction of any property or to cause an offence punishable with death, imprisonment for life, imprisonment for a term which may extend to seven years or to impute unchastity to a woman. Thus, the observations of the learned Additional Sessions Judge with reference to the essential ingredients mentioned by him in the impugned judgment and order are objected by the applicant herein on the ground that there was no justification for the Additional Sessions Judge to go beyond the parameters of revisional jurisdiction upon an assumption that the entire evidence was before him. It is submitted on behalf of the applicant that the learned Additional Sessions Judge ought not to have entered into appreciation of evidence before framing charge in the case. It is submitted on behalf of the applicant that the learned Additional Sessions Judge ought not to have entered into appreciation of evidence before framing charge in the case. Since the accused had every opportunity to defend the case notwithstanding the framing of charge on the basis of prima facie view of the matter by the learned trial Magistrate. 5. According to the learned Advocate for the respondent, the threat was given by deceased accused and not by the present respondent. Therefore, the impugned judgment and order is sustainable as there was no material to proceed further against the accused. 6. The learned Advocate for the respondent placed reliance upon the ruling in the case of V.M.Sanghiand another vs. Rammorath Gourishankar Tiwari and another reported in 1988 (3) Crimes 319 ,wherein the petitioners were recipient of process calling upon them to face accusation of offence punishable u/ss.341, 504 and 506 r/w. Section 34 of the Indian Penal Code. The Court referred to preliminary statement of the complainant to observe that it did not make out any offence and observed that the offence cannot be said to have been made out because the complainant was not an employee of the petitioner and secondly, mere threat is not sufficient to attract the charge of criminal intimidation. That threat should be given with intent to cause alarm to the person threatened, who does not say that he was alarmed. Therefore, no offence was made out for to take cognizance. 7. The next ruling which was relied upon is in the case of MadhavraoGajanan Deshpande .vs. State of Maharashtra and another reported in 2003 (4) Mh.L.J. 101,in which the accused was facing accusations u/ss. 451, 504, 506-I of the Indian Penal Code. This Court had, after referring the provisions of Sections 504, 506-I and 451 of the Indian Penal Code, held that the Court is bound to make a scrutiny of the material placed before it for the purpose of coming to a prima facie conclusion as to whether the offence indicated by such police report is prima facie made out or not. Judicious application of mind is very much necessary to find that whether the Court can take cognizance of the report submitted under the provisions of the Code of Criminal Procedure. Judicious application of mind is very much necessary to find that whether the Court can take cognizance of the report submitted under the provisions of the Code of Criminal Procedure. Mechanical acceptance of such report or complaint and issuance of process in pursuance thereof is not the function of the Court, keeping in view the relevant provisions of the Code of Criminal Procedure. 8. In V.M.Sanghi's case, statement of the watchman was produced, which was considered verbatim and it was found that no offence requiring the Magistrate to take cognizance was made up. Therefore, the petition was allowed. While, in the case of Madhavrao Gajanan Deshpande, this Court had expressed its opinion regarding precaution to be taken by the Court before whom police report is submitted after completion of investigation. The Court cannot allow itself to accept police report without scrutiny and to take cognizance of the complaint because judicious application of mind is necessary. Mechanical acceptance of police report or complaint and issuance of process is not the function of the Court because failure in that context would definitely result in miscarriage of justice. For these reasons, this Court has, in order to correct illegal act of mechanical acceptance of the police report, issued Writ of Certiorari in favour of the petitioner in that case. 9. In the facts and circumstances of the present case, however, it cannot be said that the learned trial Magistrate had mechanically accepted the complaint, recorded verification and then issued process. In para 2 of the averments in the complaint, the complainant has included abuses as “Nalayaka“ to accused no.1 and threat was imputed to accused no.2 whereby the complainant was threatened to be beaten if he deposes and submits documents as evidence before the Enquiry Officer. Mr.S.S.Pedapalliwar from the Regional Office, Amravati - Enquiry Officer was appointed pursuant to complaints made from the students against both the accused. In the verification statement in support of the complaint also specific role has been attributed to accused no.2 (present respondent) who had instigated accused no.1 not only to abuse the complainant but also to beat him with a view to prevent the complainant from giving the evidence before the Enquiry Officer Mr.Pedapalliwar. In the verification statement in support of the complaint also specific role has been attributed to accused no.2 (present respondent) who had instigated accused no.1 not only to abuse the complainant but also to beat him with a view to prevent the complainant from giving the evidence before the Enquiry Officer Mr.Pedapalliwar. Under these circumstances, the learned trial Magistrate mentioned this fact in the reasoned order dt.5.3.2009 and expressed his satisfaction that the complainant has made out prima facie case to frame charge against the accused for the offence punishable u/s.506 of the Indian Penal Code since the testimony of the witnesses on behalf of the complainant was not challenged at that stage by the accused as the accused chose to reserve the cross-examination till framing of the charge. Thus, there was evidence of the complainant as well as two witnesses to prima facie suggest that the accused had abused and threatened the complainant to beat him. 10. The learned Counsel for the applicant made a reference to the ruling in the case of SajjanKumar vs. Central Bureau Of Investigation reported in 2011 ALL SCR 24in order to support the submission that, at the stage of framing of charge, even a strong suspicion is enough for the Court to think that there is ground for to presume that the accused has committed offence and then it is not open for the Court to say that there is no sufficient ground for to proceed against the accused. At the stage of framing charge, the Court has to arrive at a prima facie opinion as to whether it shall proceed further with the trial or not. Nodoubt that the trial Magistrate is entitled to sift and weigh the materials on record but only to see as to whether there is sufficient ground to proceed further. The Apex Court mentioned the following principles in para 17 which are operative at the stage when charge is to be framed : “(I) The Judge while considering the question of framing the charges under Section 227 of the Cr.P.C. 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. The test to determine prima facie case would depend upon the facts of each case. The test to determine prima facie case would depend upon the facts of each case. (ii) 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. (iii) The Court 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 etc. However, at this stage, there cannot be a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial. (iv) If on the basis of the material on record, the Court could form an opinion that the accused might have committed offence, it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence. v) At the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing a charge the Court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible. vi) At the stage of Sections 227 and 228, the Court is required to evaluate the material and documents on record with a view to find out if the facts emerging therefrom taken at their face value discloses the existence of all the ingredients constituting the alleged offence. For this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case. vii) If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage, he is not to see whether the trial will end in conviction or acquittal.“ 11. Thus, at the initial stage, the test is whether prima facie case has been made out for presuming that the accused has committed an offence. If the answer is in the affirmative, then the charge must be framed. Thus, at the initial stage, the test is whether prima facie case has been made out for presuming that the accused has committed an offence. If the answer is in the affirmative, then the charge must be framed. In other words, if there is sufficient material for to proceed further against the accused on general consideration of the material placed before the Court, the Court is justified to frame charge. The Court need not meticulously judge truth, veracity and effect of evidence as to guilt or otherwise at the stage of framing of charge. Even a strong suspicion founded upon materials before the Court which leads to form presumptive opinion as to existence of factual ingredients constituting offence alleged may justify framing of charge against the accused in respect of alleged commission of offence. It is not at all necessary for the Court at the stage of framing of charge to enter into elaborate enquiry or to go into various aspects of the matter because merits need not be examined at the stage of framing of charge nor rowing enquiry into pros and cons is necessary. There is no need to assess evidence prematurely or to assess merits or demerits of defence. Once the trial Court is satisfied that there is sufficient ground to proceed further even on the basis of strong suspicion, the trial Court will be justified to frame charge. 12. Therefore, considering the reasoned order which was passed by the learned Chief Judicial Magistrate, Amravati on 5.3.2009 in juxtaposition with the impugned judgment and order passed by the learned 4th Adhoc Additional Sessions Judge, Amravati on 19.6.2010, one cannot say that decision of the learned trial Magistrate was grossly erroneous or that there was no compliance with legal provisions or that there was arbitrary exercise of discretion by the learned trial Magistrate for decision to frame charge against the accused. Therefore, the learned Additional Sessions Judge appears to have exceeded the parameters of revisional jurisdiction by overlooking the material which was considered by the learned trial Magistrate for decision to frame charge against the accused. In my opinion, the interference by the revisional Court was unwarranted in the absence of any glaring illegality or miscarriage of justice. Therefore, the learned Additional Sessions Judge appears to have exceeded the parameters of revisional jurisdiction by overlooking the material which was considered by the learned trial Magistrate for decision to frame charge against the accused. In my opinion, the interference by the revisional Court was unwarranted in the absence of any glaring illegality or miscarriage of justice. Considering the principles stated by the Apex Court in the Sajjan Kumar's case, one cannot say that the learned trial Magistrate has taken a wrong view of law by passing the reasoned order dt. 5.3.2009 for to frame the charge against the accused for the offence punishable u/s.506 of the Indian Penal Code. Therefore, the impugned judgment and order dt. 19.6.2010 passed in Criminal Revision Application No.109 of 2009 is quashed and set aside. The order passed below Exh.1 in R.C.C. No. 218 of 2006, dt. 5.3.2009 passed by the learned Chief Judicial Magistrate, Amravati is restored. The learned Chief Judicial Magistrate, Amravati is directed to proceed further with the matter from the stage as on 5.3.2009, in accordance with law. The Criminal Application is allowed accordingly. 13. Mr.R.J.Mirza, Adv. for the respondent herein prayed for grant of stay to the effect and operation of this order for to adopt the remedy available under the law against this order. Mr.P.S.Patil, Adv. for the applicant strongly opposed the prayer. Considering the fact that all the contentions in defence shall be available to the applicant despite framing of charge, there is no just and proper reason for to stay the operation of this order, as it would prevent progress of the trial. Hence, the prayer so made by the Advocate for the respondent is rejected.