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2020 DIGILAW 357 (GUJ)

Meet Rohanbhai Vaidya v. State of Gujarat

2020-02-26

UMESH A.TRIVEDI

body2020
JUDGMENT : 1. By way of this Criminal Revision Application the original informant of the case challenges the order passed by the learned Judicial Magistrate First Class, Maliya Hatina dated 22.04.2014 in Criminal Case No.203 of 2011 whereby Exh.29 application given by the first informant to invoke the provisions of Section 307 of the Indian Penal Code (hereinafter referred to ‘IPC’) against accused by altering the charge already framed under Section 216 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘the Code’). 2. According to the prosecution case, on 07.11.2010, the first informant registered one FIR against five named accused as also eight to ten unknown persons for the offences punishable under Sections 143, 147, 148, 149, 594, 506(2), 323 and 427 of the IPC as also under Section 135 of the Bombay Police Act, 1951. Over and above that, offence under Section 30 of the Arms Act, 1959 is also invoked by the first informant. 3. On registration of the offence, the accused named therein appears to have been arrested on 09.11.2010. It is very pertinent to note here that the first informant vide an application dated 09.11.2010 requested the Police Sub Inspector, Chorwad, where offence is registered, to invoke the provisions of Section 307 of the IPC into FIR as his FIR was self eloquent for that. Coincidently, on that very day, the accused came to be arrested in connection with the offence. It appears from the record, more particularly, from page 39 of the compilation that the present petitioner - first informant, who was summoned for giving deposition before the Court on 11.03.2014, appears to have come prepared with a detailed application, Exh.29 running into four pages requesting the Court to defer his deposition and instead alter the charge under Section 216 of the Code invoking Section 307 of IPC also against the accused. The learned Judge, after receipt of the application, Exh.29 on 11.03.2014, the day fixed for recording the deposition of the first informant, deferred the recording of his deposition and fixed the said application for hearing. As coming out from the order itself, it is clear that charge-sheet in the case came to be filed on 31.03.2011 for an offence as mentioned in the impugned order itself. As coming out from the order itself, it is clear that charge-sheet in the case came to be filed on 31.03.2011 for an offence as mentioned in the impugned order itself. It is also reflected from the order that despite the application dated 09.11.2010 by the first informant to invoke the provisions under Section 307 of the IPC into FIR was considered during investigation but the Investigating authority thought it fit not to invoke the same as it was not made out. Thereafter, on 09.12.2012 charge in the case against the accused came to be framed. 3.1 After hearing the parties, learned Magistrate, by the impugned order, rejected the application preferred by the first informant submitted through in-charge APP of that case. According to the first informant, all necessary ingredients of offence under Section 307 of the IPC are disclosed in the FIR. Not only that when the accused had put the sword over the neck of the witness Harish and aimed the licensed revolver over the head of the first informant with a threat of dire consequence, an offence under Section 307 of the IPC is clearly made out. According to what is mentioned in the application, Exh.29, the first informant as also other witnesses were assaulted and many witnesses were slapped, and therefore, according to the first informant, when FIR itself was very clear showing weapons of offence, being sword and revolver, Section 307 of the IPC is required to be invoked and charge framed is required to be altered under Section 216 of the Code as it can be altered at any time prior to pronouncement of the judgment in the case. It is further mentioned in the application, Exh.29, by the first informant, that the said deadly weapons like sword and revolver have been recovered by the Investigating Officer from the accused. 4. Shri Raj Tanna, learned advocate for M/s. H.L. Patel Advocates, for the petitioner, submitted that rejecting the application by the learned Magistrate is not in accordance with law. He has further submitted that when the accused used the sword and revolver as weapon of offence, their intention was clear to commit an offence under Section 307 of the IPC. When they put the sword on the neck of the witness – Harish as also revolver pointing towards the head of the first informant, the attempt to murder is clear. When they put the sword on the neck of the witness – Harish as also revolver pointing towards the head of the first informant, the attempt to murder is clear. He has further submitted that causing any injury with the deadly weapon is not a requirement for invoking provisions of Section 307 of the IPC. He has further submitted that though several decisions have been cited before the learned Magistrate, on the aforesaid principle, those decisions have not been followed by the Court in its true perspective. He has further submitted that even if charge is framed, it can be altered before pronouncement of the judgment in the case, and therefore, there is no time period fixed for requesting the Court to move an application for invoking the provisions of Section 307 of the IPC by any party. He has further submitted that from the very beginning his case was that an offence under Section 307 of the IPC is made out. It is supported by his prompt application addressed to the Police Sub Inspector, Chorwad to invoke the same on the next day of the incident. However, the first informant cannot be condemned for delay when he prefers an application for invoking provisions of Section 307 of the IPC in the year 2014 to the Court. He has further submitted that filing of charge-sheet was never within his knowledge, and therefore, he was rest contended that he has applied before the Police Sub-Inspector for invoking provisions of Section 307 of IPC, he would not have presumed that they have not invoked the same. At any rate, according to his submission, the first informant is never informed about filing of chargesheet under the Scheme of Code, and therefore, at the first available opportunity, when he was summoned before the Court for the purpose of deposition, he could not know that charge is not framed for an offence under Section 307 of the IPC, and therefore, he has requested the Court for altering the charge under Section 216 of the Code and to invoke the provisions of Section 307 of the IPC for the charge. 4.1 Shri Tanna, learned advocate for the petitioner, has relied on the decision in the case of Anant Prakash Sinha @ Anant Sinha Vs. 4.1 Shri Tanna, learned advocate for the petitioner, has relied on the decision in the case of Anant Prakash Sinha @ Anant Sinha Vs. State of Haryana reported in 2016 (6) SCC 105 , more particularly, paragraph 16 thereof for the proposition that the Court can alter or change the charge if there is any defect or something is left out. The test is, it must be founded on the material available on record. It can be on the basis of the complaint or the FIR or accompanying documents or the material brought on record during the course of trial. 5. As against that, Ms. Moxa Thakkar, learned Additional Public Prosecutor, submitted that the application dated 09.11.2010 requesting to invoke the provisions of Section 307 of the IPC tendered by the first informant to the Investigating authority was on record and on conclusion of the same, the Investigating authority did not find any material to support that claim invoking the provisions of Section 307 of the IPC, and therefore, while submitting the charge-sheet, it was never invoked. However, she has further submitted that the charge-sheet had already been filed on 31.03.2011 for the offence alleged in the FIR. Drawing attention to the statement of Rohanbhai Vaidya, she submitted that the petitioner is the son of the said witness, who reached the place of the incident on being called through one Bhavyakantbhai by his son. Though, he is not an eye witness to the incident, he had reached the spot after the incident and asserted the facts from his own son. According to her submission, the said witness, Rohanbhai Vaidya, is the person who took the injured to the hospital, as recorded in the certificate issued by CHC, Chorwad dated 07.11.2010. Drawing attention to the certificates of the injured witnesses, Harish Naranbhai Chudasma as also Meet Rohanbhai Vaidya, she has submitted that within less than an hour, without police yadi, father of the first informant, who is an advocate by profession, took them to the hospital, where, on examination by the Doctor, no injury except abrasion, general complaint of body ache and tenderness is found by the Doctor. According to her submission, history reflected from the certificate reveals that four named persons as also eight to ten unnamed persons have assaulted the first informant as also the injured with sword, stick and also kick and fist blow. According to her submission, history reflected from the certificate reveals that four named persons as also eight to ten unnamed persons have assaulted the first informant as also the injured with sword, stick and also kick and fist blow. She has further submitted that reflecting the names of the assailant in the medical certificate or the weapon used by the accused, by way of history, may not be that much relevant but at the same time the lawyer father of the first informant took the witnesses and injured to the hospital, history does not reveal that any fire arm was ever used. Again, according to her submission, FIR into the incident has come to be filed at about 10 p.m. much subsequent to the examination of the injured by the Doctor at CHC, Chorwad. She has further submitted that though charge-sheet into the offence came to be filed on 31.03.2011 and charge in the case against the accused came to be framed on 09.12.2012, application, Exh.29, came to be filed by the first informant, the day on which he was summoned by the Court for the purpose of deposition. According to her submission, as recorded by the trial Court, the attempt on behalf of the first informant appears to be to delay the trial against the accused because the first informant and other witnesses of this very case are facing cross case for an offence punishable under Section 354 and other allied offences of IPC, which is numbered as Criminal Case No.881 of 2010. According to the submission of learned Additional Public Prosecutor, the argument of the petitioner that on the next day of the alleged incident, FIR came to be filed against him and others, that too, subsequent to the FIR filed by him as a counter blast or to settle the case filed by the petitioner, is not correct as the first informant of that FIR, being C.R. No. I 57 of 2010 for an offence punishable under Section 354 and other offences faced by the present petitioner, is given by one Meenaxiben @ Manjulaben who was undergoing treatment at Veraval Hospital and it appears that a cross case is filed, may be subsequent to filing of the FIR by the petitioner. From the said FIR, it is clear that it was taken down by the PSI at the Government Hospital in Veraval, and therefore, she has submitted that there is no substance in the argument that a cross case, being faced by the petitioner for the offence punishable under Section 354 of the IPC, is only an afterthought and has been filed subsequent to the FIR given by the petitioner to get settled the case filed by him. On the contrary, according to her submission, the first informant himself is attempting to delay the trial against the accused as he himself is facing the charge under Section 354 of the IPC arising from the Cross Case. She has further submitted that after considering the papers of investigation as also the decisions cited by the parties, the Court has rejected the application holding that since evidence is yet to be recorded, without going into the merits of the allegation, what is referred in the FIR and the statements are to be relied on. Despite the reliance placed on such FIR and statements, though the accused had ample opportunity, time and circumstances to attempt to commit murder, the injured have not received any bleeding injury at all though the accused were armed with sword as also revolver, as claimed, and therefore, she has submitted that this Criminal Revision Application be rejected. 6. Having heard learned advocates for the appearing parties, one thing is clear that the first informant himself is attempting to delay the trial against the accused because he himself is facing the charge under Section 354 of the IPC arising from a cross case. 6.1 Though it may be a coincidence, the day on which the accused, in the case filed at the instance of the petitioner, got arrested the petitioner filed application dated 09.11.2010 requesting Police Sub Inspector, Chorwad Police Station to invoke the provisions of Section 307 of the IPC is nothing but an attempt to see that the accused may not get bail from the trial Court. Considering the fact that after filing of the said application dated 09.11.2010, the petitioner has practically done nothing, either requested the Court to invoke the provisions of Section 307 of the IPC or apply for further investigation into an offence if charge-sheet is not filed for that offence. Considering the fact that after filing of the said application dated 09.11.2010, the petitioner has practically done nothing, either requested the Court to invoke the provisions of Section 307 of the IPC or apply for further investigation into an offence if charge-sheet is not filed for that offence. The said inaction on the part of the petitioner – first informant is not pardonable as he is the son of a practicing advocate. He cannot plead ignorance that he never knew that charge-sheet has not been filed for an offence under Section 307 of the IPC against the accused despite the fact that an application dated 09.11.2010 was submitted. Not only that, his father, being a practicing advocate in the local Court where charge-sheet is filed, he must be having knowledge about not only the case filed at the instance of his son but where his son is facing the trial. The charge, in this case, came to be framed on 09.12.2012. Despite that, there was never an attempt by the first informant or even any of the witnesses to request the Court to alter the charge. Not only that, prior thereto also, there was no any application made to any higher police authority drawing attention that though there are clear ingredients satisfying an offence under Section 307 of the IPC, the same is not invoked by the Police. No application was ever filed before the Police Authority praying for further investigation into an offence nor any application was moved before the competent Court either seeking direction for the purpose of further investigation or requesting the Court, after satisfying it about the ingredients of offence under Section 307 of the IPC to frame the charge for an offence punishable under Section 307 of the IPC. It would not be easy to assume that the practicing advocate father of the first informant – petitioner was not knowing about the framing of the charge in a case where his own son is the first informant where section 307 of the IPC is not invoked. It would not be easy to assume that the practicing advocate father of the first informant – petitioner was not knowing about the framing of the charge in a case where his own son is the first informant where section 307 of the IPC is not invoked. At the same time, not only that, the day on which he was served with the summons, the petitioner did not move the Court but it is only when he entered the witness box he was ready with four page typed application requesting the Court to alter the charge and frame it, with an offence punishable under Section 307 of the IPC as also deferring recording of deposition of himself. 6.2 It would be further important to note that the advocate father of the first informant took him as also the injured witnesses to the hospital without police yadi within less than an hour, where except abrasion, complaint of general body ache and tenderness, nothing could be found by the Doctor. At the same time, in the history by both the injured, use of weapon though stated by both of them to be sword, stick etc. there was no reference of revolver at all by any of the injured. Not only that, the present FIR has come to be filed by the petitioner approximately after two hours the Doctor examined both of them. Though, on the basis of these materials, so many things could have been stated but I refrain myself from examining in that detail so as not to prejudice the case of either the prosecution or of the accused. At the same time, the attempt on behalf of the petitioner is not pardonable at all. The person, who is prompt, to request the police authority within a day or two of the FIR, of invoking the provisions under Section 307 of the IPC, has not cared to ascertain whether police has submitted the charge-sheet for that offence or not. Not only that, he has not cared to see the said provision be invoked either by moving the Court for further investigation or requesting the Court to frame that charge for an offence punishable under Section 307 of the IPC. Not only that, he has not cared to see the said provision be invoked either by moving the Court for further investigation or requesting the Court to frame that charge for an offence punishable under Section 307 of the IPC. Again, he cannot plead ignorance of law because he himself is also facing the charge for an offence punishable under Section 354 of the IPC in a Cross Case before the very same Court. Though two years prior to the application, Exh.29, requesting to alter the charge, the charge has come to be framed, he did not move the Court. As such, from the documents produced by the petitioner, it could not be known whether he was the first witness to be examined in this case or not. Suffice it to say that the day on which he was to be examined, he had tendered such an application and requested the Court to defer recording of his evidence. Ultimately, after analyzing in detail and considering the material available before the Court, when a conclusion is arrived at by the Court, that there is no offence under Section 307 of the IPC could be invoked, the said application came to be rejected. 6.3 Not only that, after filing of this Criminal Revision Application, challenging the order dated 22.04.2014 it has never been religiously followed up for hearing so far on any day. No effective order is yet passed by the Court in this case though filed in the year 2014. The petitioner has never requested the Court to hear this Criminal Revision Application, if at all it could not be heard for any other reason, when he was very keen to see that the accused faces the charge under Section 307 of the IPC. He appears to be feeling very happy about it because of pendency of the petition, the trial Court was also not proceeding though charge was framed in the year 2012 against the accused, and therefore, he did not request the Court for hearing. It is equally surprising that though there is no stay granted by this Court, trial Court has also not proceeded with the case. The decision relied on by Shri Tanna, learned advocate for the petitioner for the principle stated therein there cannot be any quarrel on it. The charge can be altered at any time prior to pronouncement of judgment. It is equally surprising that though there is no stay granted by this Court, trial Court has also not proceeded with the case. The decision relied on by Shri Tanna, learned advocate for the petitioner for the principle stated therein there cannot be any quarrel on it. The charge can be altered at any time prior to pronouncement of judgment. However, for altering the charge, the party has to make out a case. The petitioner having failed to make out a case for altering and framing the charge under Section 307 of the IPC, the learned trial Judge has committed no mistake in rejecting the application, Exh.29 preferred by the petitioner. At the same time, there is no error committed by it so as to interfere with the impugned order in revisional jurisdiction and hence this application is rejected. This application could have been rejected with heavy cost but I refrain myself from imposing such cost.