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Madhya Pradesh High Court · body

2012 DIGILAW 405 (MP)

Anil alias Noni Panda v. State of M. P.

2012-04-13

N.K.GUPTA

body2012
JUDGMENT : Bythe instant criminal revision, the applicants have challenged the order dated20-7-2011 passed by the 4th Additional Sessions Judge, Tikamgarh in S.T. No. 33/2011 by way of a revision whereby charges of offence punishableunder Sections 307 or 307/34, 329 or 329/34, 294 and 506 (2) of IPC wereframed. 2.Prosecution case in short is that on 28-8-2010 at about 8.00 p.m. in the night wherethe complainant Ramswaroop was present in his house,accused Noni Panda came to his house and informedthat other accused Nanna Panda was calling him, andtherefore, complainant Ramswaroop went to the houseof Nanna Panda. At the house of Nanna Panda, both the accused Noni Panda and Nanna Panda told him to provide a sum of Rs . 5 lakhs immediately otherwisethey would kill him. Accused Rajesh @ Kallu Pandaassaulted him by the base of a firearm on his head causing him some injuries onhis head. Similarly, Noni Panda has also assaultedhim by base of the kcitta on his nose and as aresult, blood oozed out of his nose. Thereafter, they assaulted Ramswaroop by the base of firearm and also by kicks andfists. After hearing the noise of Ramswaroop , motherof the complainant Ramswaroop reached the spot andshe saved the complainant. The FIR was lodged on the same very day. Complainant Ramswaroop was sent to the hospital for his medicolegal examination and treatment. Doctor found 5-6 injuries on his person. Outof them, two injuries were incised wounds situated on middle of the head andright ear, whereas other wounds were found on head, chest and other parts ofthe body, and therefore, X-ray was advised. In X-ray report no bony injury wasfound either on skull, nose or chest. After due investigation challan was filed. 3.Learned 4th Additional Sessions Judge, Tikamgarh ,vide order dated 20-7-2011 framed the aforesaid charges against the applicants and recorded their plea. 4.Heard the learned Counsel for the parties at length. 5.Learned Counsel for the appellants has submitted that there was no intention ofthe applicants to kill the victim. No fatal or grievous injury was caused tothe victim Ramswaroop , and therefore, neither anyoffence under Section 329 or under Section 307 of IPC was made out. The casewas triable by the Court of Judicial Magistrate FirstClass, but the learned Additional Sessions Judge unnecessarily framed thecharges of offence punishable under Sections 307 and 329 of IPC and alsoalternate charges under Section 34 of IPC. The casewas triable by the Court of Judicial Magistrate FirstClass, but the learned Additional Sessions Judge unnecessarily framed thecharges of offence punishable under Sections 307 and 329 of IPC and alsoalternate charges under Section 34 of IPC. Learned Counsel for the applicantshas further submitted that learned Additional Sessions Judge did not mentionany reason as to how the charges of offence punishable under Section 307 or 329of IPC were made out. Under such circumstances, it is submitted that thelearned Additional Sessions Judge has passed a non-speaking order, whichsuffers from legal errors and therefore, that may be quashed. 6.On the other hand, learned Counsel for the State' has refuted the contentionsmade by learned Counsel for the applicant. He has submitted that offence under Section307 of IPC is clearly made out. The applicants have assaulted the victim on hishead and nose, and therefore, their intention appears to be apparent. Secondly,learned Counsel for the State has referred the judgment of the Hon'ble Apex Court in the caseof Om Wati ( Smt .) and another Vs. State through Delhi Admn . and others, (2001) 4 SCC 333 and in the case of Kanti Bhadra Shah and another Vs.State of W.B., (2000) 1 SCC 722 , in which it is directed that if Trial Courtdischarges any accused from some charges, then a detailed order will be passed,but at the time of framing of charges, if charges are framed, then there is noneed to mention any reason in details. Under such circumstances, it is prayedthat the present revision may be dismissed with costs. 7.According to the provisions of Sections 227 and 228 of Cr.PC ,it is for the Trial Court to consider the material available on record with theobject that if it is not rebutted, then whether the accused can be convictedfor a particular offence or not. By considering such material, if the accusedis convicted for that offence, then charges for that offence shall be framed. The Hon'ble Apex Court in the case of Supdt . & Remembrancer of Legal Affairs, West Bengal Vs. Anil Kumar Bhunja and others, AIR 1980 SC 52 , by referring the viewtaken in the case of State of Bihar Vs. Ramesh Singh, AIR 1977 SC 2018 , took the following view :- "18......the truth, veracity and effect of the evidence which the prosecutor proposes toadduce are not to be meticulously judged. Anil Kumar Bhunja and others, AIR 1980 SC 52 , by referring the viewtaken in the case of State of Bihar Vs. Ramesh Singh, AIR 1977 SC 2018 , took the following view :- "18......the truth, veracity and effect of the evidence which the prosecutor proposes toadduce are not to be meticulously judged. The standard of test, proof andjudgment which is to be applied finally before finding the accused guilty or otherwise, is not exactly to be applied at the stage ofSection 227 or 228 of the Code of Criminal Procedure, 1973. At this stage, evena very strong suspicion founded upon materials before the Magistrate, whichleads him to form a presumptive opinion as to the existence of the factualingredients constituting the offence alleged; may justify the framing of chargeagainst the accused in respect of the commission of that offence." Similarly,in the case of Stree Atyachar Virodhi Parishad Vs. Dilip Nathumal Chordia and another, (1989) 1 SCC 715 , took the followingthe view : - "14.......Itis in the trial, the guilt or the innocence of the accused will be determinedand not at the time of framing of charge. The Court, therefore, need notundertake an elaborate enquiry in sifting and weighing, the material. Nor it isnecessary to delve deep into various aspects. All that the Court has toconsider is whether the evidentiary material on record if generally accepted,would reasonably connect the accused with the crime. No more need be enquiredinto." Itwould also be seen from the view taken by the Hon'ble Apex Court in Para 7 in the case of Niranjan Singh Karatn Singh Punjabi Vs. Jitendra Bimraj Bijja and others, AIR 1990 SC 1962 , which read as under :- "7......Itseems well settled that at the Sections 227-228 stage the Court is required toevaluate the material and documents on record with a view to finding out if thefacts emerging there from taken at their face value disclose the existence ofall the ingredients constituting the alleged offence. The Court may for thislimited purpose sift the evidence as it cannot be expected even at that initialstage to accept all that the prosecution states as gospel truth even if it isopposed to common sense or the broad probabilities of the case." Therefore,at the stage of framing of charges, veracity of the witnesses is not requiredto be considered, but evidence produced by the police should be considered toevaluate that the charges relating to that crime may be framed or not. 8.Under such circumstances, the matter may be considered in the light of theaforesaid judgments passed by the Hon'ble Apex Court . For consideration of offencepunishable under Section 307 of IPC, intention and knowledge of the accusedshould be considered. In this context, the judgment of the Hon'ble Apex Court in the case of Hari Kishan Vs. State of Haryana , AIR 1988 SC 2127 , may bereferred, in which it is held as under :- "UnderSection 307, IPC what the Court has to see is, whether the act irrespective ofits result, was done with the intention or knowledge and under circumstancesmentioned in that section. The intention or knowledge of the accused must besuch as is necessary constitute murder. Without this ingredient beingestablished, there can be no offence of "attempt to murder". UnderSection 307 the intention precedes the act attributed to accused. Therefore,the intention is to be gathered from all circumstances, and not merely from theconsequences that ensue. The nature of the weapon used, manner in which it isused. Motive for the crime, severity of the blow, the part of the body wherethe injury is inflicted are some of the factors thatmay be taken into consideration to determine the intention." Ifthe facts of the present case are considered in the light of the aforesaidjudgments, when it would be clear that the applicants were armed with firearmsat the time of incident, but no fire was done by any of the applicants.Secondly, the applicants assaulted the victim Ramswaroop by base of the firearm on his head and nose, which were the vital parts of thebody, but assault was not done using any force, and therefore, no grievousinjury could be caused to the victim Ramswaroop , andtherefore, looking to the overt-acts of the applicants, it cannot be said thatintention of the applicants was to kill him. On the contrary, it appears thatthey wanted to threaten the complainant so that he would make the payment.Doctor who examined the victim Ramswaroop in themedico legal examination did not opine that any of the injury was fatal. Notreatment report is submitted with the challan toshow that some surgery took place upon the victim Ramswaroop ,otherwise he could die. Bleeding from the nose or skin of the head cannot besaid to be a fatal or grievous in nature. Under such circumstances, it would beclear that the applicants neither fired from firearms, nor used any deadlyweapon nor assaulted the victim in forceful manner therefore, it is apparentthat they were not intending to kill the victim. Similarly, by injuries causedto the victim, it cannot be said that the applicants had any knowledge that bytheir act victim Ramswaroop could die. Under suchcircumstances, it is apparent that no intention or knowledge of the applicantsis established prima facie to show that by their overt acts victim Ramswaroop could die, and therefore, no offence underSection 307 of IPC may be constituted. At the most the case may come within thepurview of Sections 324 and 323 of IPC only. However, it is apparent that nooffence under Section 307 of IPC is made out against the applicants eitherdirectly or with the help of Section 34 of IPC. 9.First of all if the case is considered on the basis of the facts, then it wouldbe apparent that in X-ray report no grievous injury was found upon the victim Ramswaroop , and therefore, no offence under Section 329 ofIPC is made out against the applicants. For constitution of offence punishableunder Section 329 of IPC, injuries caused to the victim must be grievous otherwise only offence under Section 327 of IPC maybe constituted, which is triable by the Court ofJudicial Magistrate First Class. In the present case, no grievous hurt asdefined under Section 320 of Cr.PC was caused to thecomplainant Ramswaroop , and therefore, prima facie nooffence under Section 329 of IPC is made out. 10.Similarly, if the matter is to be considered for the offence punishable underSection 329 of IPC, then for commission of that offence, it is necessary thatsome grievous injury is caused to the victim in the incident. There is nogrievous injury found by the doctor. 10.Similarly, if the matter is to be considered for the offence punishable underSection 329 of IPC, then for commission of that offence, it is necessary thatsome grievous injury is caused to the victim in the incident. There is nogrievous injury found by the doctor. Grievous injury is required to be suchwhich fulfills the ingredients of Section 320 of IPC, and therefore, if anyinjury caused to the victim which endanger his life, then it would be coveredin grievous injury. But in the present case, injuries caused to the victim Ramswaroop were neither fatal nor grievous, and therefore,prima facie no offence under Section 329 of IPC was made out. At the mostoffence under Section 327 of IPC may be constituted, which is triable by the Court of Judicial Magistrate First Class. 11.Since no offence under Section 307 or 329 of IPC is made out either directly orwith the help of Section 34 of IPC, then the case remains to be triable by the Court of Judicial Magistrate First Class andit does not remain to be triable by the Court ofSessions and it was for the learned Additional Sessions Judge to remand thecase under Section 228 of Cr.PC to concerned ChiefJudicial Magistrate, and therefore, a legal mistake has been committed by thelearned Additional Sessions Judge, Tikamgarh whichcan be cured in the instant revision. 12.Learned Counsel for the applicants has submitted that it is apparent from therecord that charges of offence under Section 307 or 329 of IPC were framedwithout any basis and therefore, it was expected from the learned AdditionalSessions Judge to mention some reasons in short for framing of such chargeswhereas learned Public Prosecutor has submitted that the Hon'ble Apex Court has directed not to mention anything if charges are framed. If thejudgment of the Hon'ble Apex Court in the case of Kanti Bhadra Shah (supra) is perused, then it would beclear that the Hon'ble Apex Court interpreted the provision of Sections 227and 240 of Cr.PC . If thejudgment of the Hon'ble Apex Court in the case of Kanti Bhadra Shah (supra) is perused, then it would beclear that the Hon'ble Apex Court interpreted the provision of Sections 227and 240 of Cr.PC . For the ready reference, therelevant portion is reproduced as under : - "......If the Trial Court decides to frame a charge there is no legal requirement thathe should pass an order specifying the reasons as to why he opts to do so.Framing of charge itself is prima facie order that the Trial Judge has formedthe opinion, upon considering the police report and other documents and afterhearing both sides, that there is ground for presuming that the accused hascommitted the offence concerned.......Even in a trial before a Court ofSession, the Judge is required to record reasons only if he decides todischarge the accused (vide Section 227 of the Code). But if he is to frame thecharge he may do so without recording his reasons for showing why he framed thecharge." Inthe aforesaid judgment, it is also held that there is no legal requirement thatTrial Court should write an order showing the reason for framing of charges,there is no need to further burden the already burdened Trial Courts with suchextra work. 13.Similarly, in the case of Om Wati (supra), the Hon'ble Apex Court has referred the judgment of Kanti Bhadra's case (supra), andheld that there is no legal requirement that trial Court should write the ordershowing the reasons for framing of charges. Some portion of Para 7 of that judgment may be read as under : - "7........Thetime has reached to adopt all possible measures to expedite the Courtprocedures and to chalk out measures to avert all roadblocks causing avoidabledelays. If a Magistrate is to write detailed orders at different stages merelybecause the Counsel would address arguments at all stages, the snail-pacedprogress of proceedings in Trial Courts would further be slowed down. We arecoming across interlocutory orders of Magistrates and Sessions Judges runninginto several pages. We can appreciate if such a detailed order has been passedfor culminating the proceedings before them. We arecoming across interlocutory orders of Magistrates and Sessions Judges runninginto several pages. We can appreciate if such a detailed order has been passedfor culminating the proceedings before them. But it is quite unnecessary towrite detailed orders at this stage, such as issuing process, remanding theaccused to custody, framing of charges, passing over to next stages in thetrial....." 14.At present if some trials of Section 306 of IPC may be considered where nopresumption under Section 113-A of the Evidence Act is applicable, then chargesunder Section 306 of IPC can only be framed if overt act of the accused fallswithin the purview of Section 107 of IPC. At present so many revisions arepending before this Court, because the Trial Court did not examine at the timeof framing of the charges that, whether the overt act of the accused fallswithin the purview of Section 107 of IPC. Similarly, in the case of offencepunishable under Section 307 of IPC when accused contests the-case that nofatal or grievous injury was inflicted upon the victim and apparently on thebasis of the documents filed by the police, there was no intention or knowledgeof the accused to kill the victim, then in such cases charges for offencepunishable under Section 307 of IPC cannot be framed, but such type of chargesare being framed by the Trial Courts without application of mind and a bulk ofrevisions are pending against such orders. 15.Learned Counsel for the applicants submits that looking to the aforesaidcondition, though there is no provision under Sections 227 and 240 of Cr.PC but a speaking order is to be passed by the TrialCourt at the time of framing of charges on the basis of principles of naturaljustice. However, such contention cannot be accepted, because in the case ofS.N. Mukherjee Vs. Union of India, AIR 1990 SC 1984 ,the Hon'ble Apex Court on the basis of its previousjudgment in Sorn Datt Datta's case, AIR 1969 SC 414 , has observed as under :- "38.......Keepingin view the expanding horizon of the principles of natural justice, we are ofthe opinion, that the requirement to record reason can be regarded as one ofthe principles of natural justice which govern exercise of power byAdministrative Authorities. The rules of natural justice are not embodiedrules. The extent of their application depends upon the particular statutoryframework whereunder jurisdiction has been conferredon the Administrative Authority. The rules of natural justice are not embodiedrules. The extent of their application depends upon the particular statutoryframework whereunder jurisdiction has been conferredon the Administrative Authority. With regard to the exercise of a particularpower by an Administrative Authority including exercise of judicial orquasi-judicial functions the Legislature, while conferring the said power, mayfeel that it would not be in the larger public interest that the reasons forthe order passed by the Administrative Authority be recorded in the order andbe communicated to the aggrieved party and it may dispense with such arequirement." 16.Similarly, the Full Bench of this Court in the case of Rana Natwarsingh Vs. State of Madhya Pradesh and others, AIR 1980 MP 129 , has held as under :- "9......Apartfrom any requirement imposed by the statute or statutory rule expressly or bynecessary, implication, we are unable to accept the contention of Mr. Dutta that there is any general principle or any rule ofnatural justice that a Statutory Tribunal should always and in every case givereasons in support of its decision......The decision in Som Datt Vs. Union of India (supra), is an authority forthe propositions that, ( i ) unless expressly orimpliedly required by a statute or the rules, there is no obligation on aTribunal to give reasons, (ii) the giving of reasons is not a requirement ofnatural justice, and (iii) a non-speaking order could not be set aside merelyon the ground that it was non-speaking." Undersuch circumstances, it would be clear that since there is no provision underSections 227 and 240 of Cr.PC to pass a speakingorder, if charges are framed, then principles of natural justice cannot beapplied in such a manner in light of the decisions given by the Hon'ble Apex Court in the cases of Som Datt (supra) and S.N. Mukherjee (supra), and the Full Bench of this Court in case of Rana Natwarsingh (supra). 17.There are so many cases beyond the above quoted examples in Para 14 of this orderin which such type of situation arises that Presiding Officer of the TrialCourt does not apply his mind at the time of framing of charges, and therefore,number of criminal revisions before this Court are unnecessarily increasing. Insuch revisions, sufficient time is required for their disposal. 17.There are so many cases beyond the above quoted examples in Para 14 of this orderin which such type of situation arises that Presiding Officer of the TrialCourt does not apply his mind at the time of framing of charges, and therefore,number of criminal revisions before this Court are unnecessarily increasing. Insuch revisions, sufficient time is required for their disposal. Defence Counsel appearing before the Lower Court takes time before the Lower Court with the pretext that revision is pendingand due to such type of orders unnecessarily delay causes in the disposal ofthe cases. Though Trial Court cannot be directed to pass a speaking order whileframing of charges and in each case Trial Court is not supposed to pass aspeaking order at the time of framing of charges, but looking to the aforesaidsituations, Trial Courts are advised not to avoid the application of judicialmind at the time of framing of charges. Some reasons in concise manner may begiven if charges are framed in such vulnerable cases. 18.Moreover, it is appropriate to quote one more situation that if police filescharge-sheet for particular offences with one set of facts and Trial Courtfinds that some more offences are constituted, and therefore, Trial Court whileframing of charges adds charges of those sections of which offence wasconstituted, then there is no procedure given in Section 227 or 240 of Cr.PC for such a situation. For example, if husband andfamily members are facing a trial of murder of bride by burning and challan was filed for commission of offence punishableunder Sections 302 and 498-A of IPC, Trial Court feels that parents andrelatives of the deceased have made allegations of dowry demand and harassmentalso, and therefore, charge under Section 304-B of IPC may also be added orappended. This is not a case for modification of the charges, but it is a casewhere charges are to be framed for the first time. Such type of situationcannot be governed under Section 227 or 240 of Cr.PC and in such a case accused has every right to know as to why such charge wasframed and therefore, principle of natural justice shall apply. It is for theCourt to show the reason as to why additional charge of offence is framed. Tosuch a situation, the dictum laid down by the Hon'ble Apex Court in the caseof Om Wati (supra) and Kanti Bhadra's case (supra),shall not be attracted. It is for theCourt to show the reason as to why additional charge of offence is framed. Tosuch a situation, the dictum laid down by the Hon'ble Apex Court in the caseof Om Wati (supra) and Kanti Bhadra's case (supra),shall not be attracted. Under such circumstances, it is for the Trial Court tomention reasons for framing of charges in such a peculiar situation. 19.By aforesaid discussion, it would be clear that where it is required for theTrial Court to mention concise reasons for framing of particular charge underthe provisions of principle of natural justice then it is the duty of thePresiding Officer to that Court to mention reasons for framing of such charge,whereas in General Trial Court is not required to pass a speaking order in eachand every case. In other vulnerable cases as mentioned in Para 14 of thisorder, Trial Court is advised to apply its mind and in such peculiar caseswithout mentioning much details in the order some to the point reasons may begiven for framing of charges, so that the Revisionary Court can be well informed on the view of the Judge at the time of framing ofcharges in such cases. 20.In the present case, learned Additional Sessions Judge did not consider that nogrievous or fatal injury was caused to the victim and no intention or knowledgeof the applicants was visible that they intended to commit a murder. On theaforesaid discussion, it would be clear that neither any offence under Section307 nor Section 329 of IPC is made out against the applicants either directlyor with the help of Section 34 of IPC. The offence under Sections 327 and 324of IPC may be constituted against the applicants either directly or with thehelp of Section 34 of IPC, and therefore, it is apparent that a legal error hasbeen caused by the learned Additional Sessions Judge, Tikamgarh .The case was to be remanded to the Court of Chief Judicial Magistrate underSection 228 of Cr.PC , but it was kept pending beforethe Sessions Court. Under such circumstances, revision filed by the applicantsdeserves to be allowed. Under such circumstances, revision filed by the applicantsdeserves to be allowed. 21.Consequently, the present revision filed by the applicants is hereby allowedand the order dated 20-7-2011 passed by the 4th Additional Sessions Judge, Tikamgarh relating of framing of charges against the applicants is hereby quashed.Learned Additional Sessions Judge, Tikamgarh isdirected to remand the case to Chief Judicial Magistrate, Tikamgarh for trial of offences punishable under Section 327 or 327/34, 324 or 324/34,294, 506 (2) of IPC. 22.A copy of this order be sent forthwith to the TrialCourt for information and compliance.