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2015 DIGILAW 229 (BOM)

Vikrant Rajkumar Gupta v. State of Maharashtra

2015-01-22

P.B.VARALE

body2015
JUDGMENT : P.B. Varale, J. 1. Admit. Heard finally by consent of the learned Counsel appearing for the parties. By this revision application, the applicant challenges the order passed by the learned Sessions Judge, Akola, dated 01/11/2014, thereby framing of charge against the applicant under Section 304-B, 306 and 498-A read with Section 34 of the Indian Penal Code and prays for interim order in nature of stay to the proceedings of Sessions Trial No. 31/2010. 2. The learned Counsel for the applicant submits that if the interim order is not passed, the purpose of filing the present application by the applicant would be frustrated. The learned Counsel invited my attention to the F.I.R., the Order-Sheet/Roznama, of which a copy is placed on record as Annexure C, and the charge framed by the learned Sessions Judge, dated 01/11/2014. It was an attempt of the learned Counsel for the applicant to submit that the material itself is insufficient for the alleged offences against the applicant under Section 498-A, 304-B and 306 of the Indian Penal Code. The learned Counsel then submits that no opportunity was granted of hearing either to the applicant-accused or the Counsel representing the applicant. He submits that the applicant was enlarged on bail. It is submitted that the applicant on 01/11/2014 attended the Court with a prayer for cancellation of 'non-bailable warrant' issued against him, and to the shock and surprise of the applicant, on the very day, the learned Sessions Judge framed the charge without offering any opportunity of hearing to the applicant-accused, who was present in the Court. He submits that the course adopted by the learned Sessions Judge is contrary to the judicial pronouncement of this Court reported in 2007 (1) Bom. C.R. (Cri.) 881 in the matter of Ambadas Kashirao Kharad vs. State of Maharashtra. 3. I have gone through the material placed on record as well as the judgment on which the learned Counsel for the applicant placed heavy reliance. 4. The learned Counsel for the applicant claims an urgency on the backdrop of the fact that if the matter is not considered urgently, it will be a futile attempt of the applicant to approach this Court. The learned A.P.P. fairly submits that as the issue involved is on the principle reflected in the judicial pronouncement of this Court, the matter can be considered at this stage. 5. The learned A.P.P. fairly submits that as the issue involved is on the principle reflected in the judicial pronouncement of this Court, the matter can be considered at this stage. 5. The issue involved in the present application is the framing of the charge by the learned Sessions Judge, Akola on 01/11/2014 against the applicant. The perusal of the material placed on record shows that on 23/10/2009, the report was lodged at Ramdaspeth Police Station. Akola at the instance of one Ashokkumar Agrawal. It was submitted in the report that marriage of his daughter viz. Nitu was solemnized with the applicant in the year 2006. His daughter was subjected to ill-treatment at the instance of her husband and mother-in-law since beginning of her matrimonial life. He stated that the couple was blessed with a son prior to two years of the lodgment of the report. Even though, this fact did not change the behavior of the accused and the daughter of the complainant was continued to be subjected to the ill treatment. Though the father made attempt to fulfill the demands on different occasions, there was no end to the demands. On 19/10/2009, he received a phone call from his daughter of being subjected to the ill treatment of mother-in-law. The father immediately started proceeding to Akola. On the way he was informed on phone that Nitu consumed some poisonous substance and she is admitted in the hospital. On reaching the hospital, they found Nitu in an unconscious state. She then was shifted to Nagpur Hospital, but there was no change in her physical condition and on 23/10/2009, he lost his daughter. 6. The learned Counsel for the applicant submits that other accused i.e. mother Chanda Rajkumar Gupta was protected by this Court allowing the Criminal Application No. 3502/2009 seeking her pre-arrest bail. He submits that applicant-Chanda was enlarged on bail. He also submits that on failure to attend the Court for one occasion, 'non-bailable warrant' was issued to the applicant. The applicant immediately approached the Court and on 01/11/2014 filed an application for cancellation of 'non-bailable warrant' issued against him. He submits that the applicant is being represented through Counsel and on 01/11/2014, the Counsel of the applicant was not available, but the applicant himself was before the Court. The applicant immediately approached the Court and on 01/11/2014 filed an application for cancellation of 'non-bailable warrant' issued against him. He submits that the applicant is being represented through Counsel and on 01/11/2014, the Counsel of the applicant was not available, but the applicant himself was before the Court. To the surprise of the applicant, on 01/11/2014, the learned Sessions Judge framed the charge against the applicant for the offence punishable under Sections498-A and 306 read with Section 34 and alternatively 304B of the Indian Penal Code. The learned Counsel submits that the course undertaken by the learned Sessions Judge is clearly contrary to the judicial pronouncement of this Court reported in 2007 (1) Bom. C.R. (Cri.) 881 in the matter of Ambadas Kashirao Kharad vs. State of Maharashtra. The submission of the learned Counsel was, offering an opportunity of hearing to the accused is not an empty formality, but it the requirement of the provision, and this position is reflected in clear and unambiguous words in the judgment of this Court in the matter of Ambadas Kashirao Kharad vs. State of Maharashtra. He submits that on such opportunity given to the applicant the applicant would certainly be in a position to say and submit that the material falling too short to attract the offences as alleged against the applicant. The learned Counsel then placed heavy reliance on the judgment of this Court in the matter of Ambadas Kashirao Kharad vs. State of Maharashtra. 7. The learned A.P.P. fairly submits that on principle, there cannot be any dispute on the proposition of law reflected in the judgment of this Court in the matter of Ambadas Kashirao Kharad vs. State of Maharashtra. It will be for our benefit to refer to the material portion of the judgment of this Court. This Court on an identical fact scenario, wherein the Additional Sessions Judge framed charge in Sessions Trial No. 13/2001 without hearing the Advocate or the applicant, observed in paragraph 6, which reads thus: "6. Chapter XVIII of the Code of Criminal Procedure deals with the procedure to be followed by the Sessions Court in case of trial before it. At this stage, it would be appropriate to quote sections 226, 227and 228 (as amended by the State of Maharashtra) of the Code of Criminal Procedure. Chapter XVIII of the Code of Criminal Procedure deals with the procedure to be followed by the Sessions Court in case of trial before it. At this stage, it would be appropriate to quote sections 226, 227and 228 (as amended by the State of Maharashtra) of the Code of Criminal Procedure. They read as under: Section 226 - Opening case for prosecution : When the accused appears or is brought before the Court in pursuance of a commitment of the case under section209, the prosecutor shall open his case by describing the charge brought against the accused and stating by what evidence he proposes to prove the guilt of the accused. Section 227 Discharge : If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing. Section 228 - Framing of charge:- (1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which a) is not exclusively triable by the Court of Session, he may, frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate or any other Judicial Magistrate of the first class and direct the accused to appear before the Chief Judicial magistrate, or, as the case may be, the Judicial Magistrate of the first class, on such date as he deems fit, and thereupon such Magistrate shall try the offence in accordance with the procedure for the trial of warrant cases instituted on a police report; b) is exclusively triable by the Court, he shall frame in writing a charge against the accused. (2) Where the Judge frames any charge under Clause (b) of sub-section (1), the charge shall be read and explained to the accused and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried. It would be also useful for our purpose to refer observations of this Court as referred in paragraphs 8 and 9 of the judgment, which reads thus: "8. It would be also useful for our purpose to refer observations of this Court as referred in paragraphs 8 and 9 of the judgment, which reads thus: "8. A bare perusal of the above sections makes it clear that in a Sessions Trial the case has to begin with opening of the case by the prosecution followed by arguments on behalf of the prosecution and the accused culminating in passing of an order provided in section227 of the Code of Criminal Procedure. The compliance of sections226 and 227 is not an empty formality and the Sessions Courts dealing with the sessions cases are bound to comply with the sections 226 and 227 of the Code of Criminal Procedure in letter and spirit. Section 226 has been enacted so that the accused knows in advance the nature of the evidence which the prosecution proposes to lead to prove the charge brought against him. The object of section 227 is to ensure expeditious disposal of sessions cases so that the accused is discharge if there is no case against him or tried quickly and either acquitted or convicted as the case may be. Section 27 also saves the accused from harassment inasmuch as if the records do not make out any prima facie case against the accused, the accused is entitled to be discharged. This is not only with a view to avoid undue harassment of the accused but also waste of public time over the cases which do not disclose even prima facie case. Therefore, at this stage the Judge has to apply his judicial mind to find out as to whether prima facie any offence is made out against the accused having regard to the record relied upon by the prosecution. No doubt exercise undertaken by the Judge at this stage is to find out if there is a prima facie evidence against the accused so that the accused can be tried by the competent Court, that is, Sessions Court or any other Court/Magistrate having jurisdiction to try the offence. 9. What I find in the present case is that the learned Additional Sessions Judge has directly proceeded to frame charge against the applicants without complying with the provisions of sections 226 and 227 of the Code of Criminal Procedure. This practice ex facie contrary to Chapter XVIII of the Code of Criminal Procedure and as such cannot be countenanced. 9. What I find in the present case is that the learned Additional Sessions Judge has directly proceeded to frame charge against the applicants without complying with the provisions of sections 226 and 227 of the Code of Criminal Procedure. This practice ex facie contrary to Chapter XVIII of the Code of Criminal Procedure and as such cannot be countenanced. Thus, considering the judgment of this Court and the material placed on record, in my opinion, the learned Counsel for the applicant has made out a case. The order passed by the learned Sessions Judge, Akola thereby framing charge against the applicant is quashed and set aside and the matter is remitted back to the learned Sessions Judge for passing fresh order after complying with the Sections 226 and 227 of the Code of Criminal Procedure. Needless to state that the observations of this Court while deciding the present application are not on merits, but on the issue of giving an opportunity to the applicant before framing of the charge. The application is disposed of in above referred terms.