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2023 DIGILAW 1552 (BOM)

Prakash Hanumant Naik v. Police Inspector

2023-07-18

M.S.KARNIK

body2023
JUDGMENT/ORDER 1. Heard Shri Kerkar, learned counsel for the petitioner and Shri Bhobe, learned Public Prosecutor for the respondents-State. 2. The challenge in this petition is to the order dtd. 29/5/2023 passed by the revisional court. The petitioner is the original accused no.2. The petitioner's application filed before the trial court under sec. 258 of the Code of Criminal Procedure, 1973 (Cr.P.C., for short) came to be allowed by the order dtd. 27/12/2022. This order passed by the trial Court was challenged before the revisional court by the State of Goa. The revisional court has allowed the revision filed by the State. This is the impugned order. The petitioner, after carrying out amendments, has also challenged the order dtd. 5/1/2022 passed by the trial court framing charge against the petitioner under sec. 223 of the Indian Penal Code (IPC, for short). 3. Briefly stated, the facts are as under : On 25/8/2020, the Mapusa Police Station registered FIR vide Crime No. 230/2020 under Sec. 223 and 224 of the Indian Penal Code. (IPC, for short). The petitioner-accused no.2 at the relevant time was working as a Jail Guard. It is alleged that the accused no. 2 was negligent in the performance of his duty as a result of which, the accused no.1 an under trial prisoner escaped from custody. The investigation against the petitioner proceeded under Sec. 223 of IPC. The accused no.1 was proceeded with under Sec. 224 of IPC. A final report under Sec. 173 of the Cr.P.C. was filed on 1/7/2021. 4. By an order dtd. 5/1/2022, the trial court directed framing of charge against the petitioner under Sec. 223 of IPC. The petitioner filed a criminal revision application no.16 of 2022 before the revisional court challenging the order dtd. 5/1/2022 framing charge. During the pendency of the revision, the petitioner filed an application (exhibit 22) before the trial court on 30/11/2022 for stopping of proceedings under Sec. 258 of Cr.P.C. 5. By an order dtd. 27/12/2022, the trial court allowed the application filed by the petitioner under Sec. 258 of Cr.P.C. and stopped the proceedings against him. The trial court was of the view that as the offence under Sec. 223 of IPC is a non-cognisable offence, the mandatory permission as contemplated under Sec. 155(2) of Cr.P.C. not having been taken by the Investigating Officer, hence the proceedings are bound to be dropped against the petitioner. The trial court was of the view that as the offence under Sec. 223 of IPC is a non-cognisable offence, the mandatory permission as contemplated under Sec. 155(2) of Cr.P.C. not having been taken by the Investigating Officer, hence the proceedings are bound to be dropped against the petitioner. The respondent-State filed criminal revision application challenging the order dtd. 27/12/2022 before the revisional court on 4/3/2023. 6. On 13/3/2023, the petitioner filed an application for withdrawal of the criminal revision application no.16 of 2022 filed by him on account of the discharge of the petitioner stopping the proceedings under Sec. 258 of Cr.P.C. Consequently, the criminal revision application challenging the order dtd. 5/1/2022 framing charge, was disposed of by the order dtd. 2/5/2023 as not pressed. 7. It is pertinent to note that on 17/3/2023, the accused no.1 pleaded guilty and as such the accused no.1 was convicted for the offence punishable under Sec. 224 of IPC. The criminal proceedings as against the accused no.1 came to be disposed of. 8. The revisional court on 29/5/2023, set aside the order passed by the trial court dtd. 27/12/2022 under Sec. 258 of Cr.P.C. stopping the proceedings. Consequently, the order dtd. 5/1/2022 framing charge under Sec. 223 of IPC passed by the trial court stood revived. It is this order dtd. 29/5/2023 passed by the revisional court which is impugned in this petition and also the order dtd. 5/1/2022 of the trial court framing charge. 9. Heard learned counsel for the parties. Perused the paper book and the impugned order. 10. So far as the order impugned passed by the revisional court is concerned, the court was of the opinion that the trial Judge did not consider the effect of Sec. 155(4) of Cr.P.C. which led to the erroneous granting of the application under Sec. 258 of Cr.P.C. It is on this count that the order of the trial court discharging the petitioner was interfered with by the revisional court. 11. To appreciate the controversy in perspective, a few facts need to be restated. The petitioner was proceeded against with under sec. 223 of IPC whereas the accused no.1 was proceeded against with under Sec. 224 of IPC. Ss. 11. To appreciate the controversy in perspective, a few facts need to be restated. The petitioner was proceeded against with under sec. 223 of IPC whereas the accused no.1 was proceeded against with under Sec. 224 of IPC. Ss. 223 and 224 of IPC, reads thus : "Sec. 223 - Escape from confinement or custody negligently suffered by public servantWhoever, being a public servant legally bound as such public servant to keep in confinement any person charged with or convicted of any offence or lawfully committed to custody, negligently suffers such person to escape from confinement, shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both. Sec. 224 - Resistance or obstruction by a person to his lawful apprehension - Whoever intentionally offers any resistance or illegal obstruction to the lawful apprehension of himself for any offence with which he is charged or of which he has been convicted, or escapes or attempts to escape from any custody in which he is lawfully detained for any such offence, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. Explanation.- The punishment in this Sec. is in addition to the punishment for which the person to be apprehended or detained in custody was liable for the offence with which he was charged, or of which he was convicted." 12. It is pertinent to note that the offence under Sec. 223 of IPC is non-cognisable and triable by any Magistrate. So far as the offence under Sec. 224 of IPC is concerned, the same is cognisable and triable by any Magistrate. At this juncture, it would be relevant to refer to the provisions of Sec. 155 of Cr.P.C., more particularly sub-sec. (4) of Sec. 155. Sec. 155 of Cr.P.C., reads thus : Sec. 155 - Information as to non-cognizable cases and investigation of such cases- (1) When information is given to an officer in charge of a police station of the commission within the limits of such station of a non-cognizable offence, he shall enter or cause to be entered the substance of the information in a book to be kept by such officer in such form as the State Government may prescribe in this behalf, and refer, the informant to the Magistrate. (2) No police officer shall investigate a non-cognizable case without the order of a Magistrate having power to try such case or commit the case for trial. (3) Any police officer receiving such order may exercise the same powers in respect of the investigation (except the power to arrest without warrant) as an officer in charge of a police station may exercise in a cognizable case. (4) Where a case relates to two or more offences of which at least one is cognizable, the case shall be deemed to be a cognizable case, notwithstanding that the other offences are non-cognizable." (emphasis mine) 13. Considering that the petitioner was proceeded against with under Sec. 223 of IPC and the accused no.1 was proceeded against with under Sec. 224 of IPC investigation proceeded as per Sec. 155(4) of Cr.P.C. After the charge was framed by the trial court on 5/1/2022 against the petitioner under Sec. 223 of IPC, the said order framing charge was challenged by the petitioner before the revisional court. During the pendency of the revision, the petitioner filed an application under Sec. 258 of Cr.P.C. before the trial Court for stopping the proceedings which application came to be allowed. The petitioner therefore did not press the revision that was filed challenging the order framing charge under Sec. 223 of IPC. However, the order passed by the trial court stopping the proceedings under Sec. 258 of Cr.P.C. was set aside by the revisional court. A piquant situation arose where the revision filed by the petitioner challenging the order framing charge was disposed of as not pressed as the proceedings against him were dropped under Sec. 258 of Cr.P.C. and thereafter comes the order of the revisional court setting aside the order passed by the trial court stopping the proceedings under Sec. 258 of Cr.P.C. The order framing charge stood revived as a result. Hence, the order framing charge by the trial court is now challenged in this petition, which was earlier the subject matter of challenge before the revisional court. Since the order of the trial court stopping the proceedings under Sec. 258 of Cr.P.C. is set aside by the revisional court, in ordinary course, it would have been appropriate to direct the petitioner to approach the revisional court for revival of the revisional proceedings where the framing of charge was under challenge. Since the order of the trial court stopping the proceedings under Sec. 258 of Cr.P.C. is set aside by the revisional court, in ordinary course, it would have been appropriate to direct the petitioner to approach the revisional court for revival of the revisional proceedings where the framing of charge was under challenge. However, learned counsel for the petitioner submitted that the withdrawal of the revision challenging the order framing charge should not come in his way in the petitioner's challenge to the order framing charge by the trial court, as the order framing charge is not in consonance with the provisions of Chapter XXII which provides for trial of summons cases by Magistrates. There is definitely merit in the contention of learned Public Prosecutor that the petitioner should pursue his remedy before the revisional court against the order framing charge. Considering the nature of the challenge and the history of this litigation, in order to avoid multiplicity, in the interest of justice, I have proceeded to examine the challenge of the petitioner to the trial court's order framing charge. The withdrawal of the revision was on account of subsequent development enumerated hereinbefore. I do not propose to relegate the petitioner to the revisional court. 14. The trial court while framing charge under Sec. 223 of IPC has observed thus : "7. As far as the allegations against the accused no.2 of he being negligent is concerned, this will have to be proved by the prosecution on merits. At this stage there is nothing on record even to suggest that the accused no.2 was not negligent and that he is entitled for discharge. 8. In the result, I order to frame charge against accused no.2 for the offence under Sec. 223 of IPC" 15. In this context, I may notice the provisions of Chapter XX regarding trial of summons cases by Magistrate. Ss. 251 and 258 of Cr.P.C. relevant in the contextual facts, reads as under : "Sec. 251 - Substance of accusation to be state. - When in a summons-case the accused appears or is brought before the Magistrate, the particulars of the offence of which he is accused shall be stated to him, and he shall be asked whether he pleads guilty or has any defence to make, but it shall not be necessary to frame a formal charge. .... - When in a summons-case the accused appears or is brought before the Magistrate, the particulars of the offence of which he is accused shall be stated to him, and he shall be asked whether he pleads guilty or has any defence to make, but it shall not be necessary to frame a formal charge. .... Sec. 258 - Power to stop proceedings in certain cases - In any summons-case instituted otherwise than upon complaint, a Magistrate of the first class or, with the previous sanction of the Chief Judicial Magistrate, any other Judicial Magistrate, may, for reasons to be recorded by him, stop the proceedings at any stage without pronouncing any judgment and where such stoppage of proceedings is made after the evidence of the principal witnesses has been recorded, pronounce a judgment of acquittal, and in any other case release, the accused, and such release shall have the effect of discharge." 16. The criminal case against the petitioner is to be tried as a summons case. In view of the provisions of Sec. 251, after the particulars of the offence of which he is accused is stated to him, the petitioner has to be asked whether he pleads guilty or whether he claims to be tried but it is not necessary to frame a formal charge. On a careful perusal of the impugned order, the learned trial court, while ordering that the charge has to be framed against the petitioner for the offence under Sec. 223 of IPC, appears to have proceeded on the footing as if the order to be passed had to be more in the nature of an order required to be passed under chapter XIX of Cr.P.C. in respect of trial of warrant cases before Magistrates. Sec. 240 of Cr.P.C., in chapter XIX reads thus : "Sec. 240 - (1) If, upon such consideration examination, if any, and hearing, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try and which, in his opinion could be adequately punished by him, he shall frame in writing a charge against the accused. (2) The charge shall then be read and explained to the accused, and he shall be asked whether he pleads guilty of the offence charged or claims to be tried." 17. The order dtd. (2) The charge shall then be read and explained to the accused, and he shall be asked whether he pleads guilty of the offence charged or claims to be tried." 17. The order dtd. 5/1/2022 passed by the trial court, therefore, calls for interference and is accordingly set aside. The learned trial Court may consider the proceedings from the stage of Sec. 251 of Cr.P.C. It is open for the petitioner to file a fresh application under sec. 258 of Cr.P.C., which shall be considered on its own merits and in accordance with law. It is made clear that the proceedings and application, if any, filed by the petitioner, be considered afresh qua the petitioner without being influenced by any orders earlier passed by the trial court or the revisional court. 18. Now that the order framing charge is set aside, the order passed under Sec. 258 of Cr.P.C. looses its significance, so also the impugned order of the revisional court. The impugned order of the revisional court as well as the order of trial court dtd. 27/12/2022 is consequently set aside. 19. Petition is allowed in the above terms.