Soma Sitra Kadu Vs. State (Administration of Union Territory of Dadra and Nagar Haveli) - Court Judgment

SooperKanoon Citationsooperkanoon.com/1103611
CourtMumbai High Court
Decided OnJul-31-2012
Case NumberCriminal Revision Application No.279 of 2012
JudgeABHAY M. THIPSAY
AppellantSoma Sitra Kadu
RespondentState (Administration of Union Territory of Dadra and Nagar Haveli)
Excerpt:
oral order: by consent, admitted and taken up for hearing forthwith. by consent, calling for record and proceedings is dispensed with. 2. the applicant is one of the accused in sessions case no.25 of 2010, pending before the court of sessions at dadra and nagar haveli, silvassa. the allegation against the applicant and other accused is that they have committed offences punishable under section 302 of the ipc, 143 of the ipc, 147 of the ipc and 506 of the ipc. the applicant made an application for discharge contending that there were no sufficient grounds for proceeding against him, but the said application was rejected by the learned sessions judge by his order dated 5 june 2012. being aggrieved by the said order of rejection, the applicant has approached this court invoking its revisional jurisdiction. 3. i have heard mr.gole, learned advocate for the applicant and mr.d.a. nalawade, learned public prosecutor for the union territory of dadra and nagar haveli. mr.nalawade has tendered the affidavit in reply of the investigating officer and the same is taken on record. 4. with the assistance of the learned counsel, i have gone through the impugned order and the copy of the chargesheet together with english translation of the statements recorded during investigation, which are annexed to the revision application. 5. the first information report has been lodged by kakadbhai the victim himself. he was assaulted on 24 august 2010 whereafter he was admitted in the hospital. it was in the hospital that his statement was recorded and treated as the first information report. kakadbhai died on 5 september 2010 and thereafter, the offence punishable under section 302 of the ipc was added in the said case, which had been initially registered only in respect of offences punishable under section 143, 147, 447, 323, 504 and 506 of the indian penal code. 6. the first information report shows that due to some quarrel, the first informant was assaulted by one devu ambat, vasant navsa, haliya, vajiya and two-three others. the first information report does not speak of the presence of the applicant at the time of the incident of assault. as a matter of fact, it is nobody's case that the applicant was one of the assailants or that he was present at the time of assault along with other assailants. 7. the statements of persons who claim to have witnesses the incident of assault also do not implicate the applicant as one of the assailants, and as already observed, the statements even do not allege the presence of the applicant at the time of the assault. 8. the applicant comes in picture in this manner: jaywanti, daughter of kakadbhai wanted to go to dolara, and had for that purpose, contacted one jairam who owns an autorickshaw. in the meanwhile, the assault on kakadbhai took place. jaywanti, on learning about it wanted to inform the police and was proceeding in the rickshaw of the said jairam. it is at that time, the applicant along with some other accused who are said to be the assailants, stopped the said rickshaw by showing his hand and threatened jairam by saying that 'jairam was roaming with kakadbhai and thereafter if he would roam with kakadbhai, he would also be beaten up.' 9. this statement of jaywanti is recorded on 27 august 2010. it may be recalled that the assault had taken place on 24 august 2010. 10. it is conceded that except this, no other role has been attributed to the present applicant. 11. mr.nalawade, public prosecutor contended that this is sufficient to show the prima facie involvement of the applicant in the alleged offences. according to him, the fact that the applicant was in the company of other persons who were alleged to be assailants, is significant. he submitted that the words attributed to the applicant: viz 'that jairam should not roam with kakadbhai and that if he would do so, he would also be beaten', are indicative of the involvement of the applicant in the conspiracy. 12. it is not possible to accept this contention. even if the fact that the statement of jaywanti was recorded after three days from the incident is ignored, the fact remains that the role attributed to the applicant would only show that 'he had learned about the assault at that time'. this would not show that he had knowledge of the fact that the assaults had been pre-planned by any of the assailants or other accused. in fact, there has been no charge of an offence punishable under section 120b of the ipc. it is not the theory of the prosecution that kakadbhai was assaulted in furtherance of a conspiracy between the accused persons. therefore, the question of the applicant being a party to any conspiracy, does not arise. 13. the applicant is also not alleged to be a member of the unlawful assembly that assaulted kakadbhai. 14. it is also not the case of the prosecution that the assault was in furtherance of the common intention of all the accused including the applicant and in any case, when the applicant was not present on the spot, the question of holding him liable by virtue of the provisions of section 34 of the ipc, has also to be ruled out. in fact, the provisions of section 34 of the ipc, have not been applied against the accused persons. 15. it is in these circumstances one has to consider whether the utterance attributed to the applicant, after the incident had taken place, would show his involvement in the alleged assault. the answer has to be in the negative. 16. undoubtedly, an attempt has been made to show that the utterance was actually a threat, but going by the words used, it is difficult to term it as 'threat'. it could simply be a 'caution' also. 17. section 227 of the code of criminal procedure reads as under:- "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." thus, what the judge has to consider at that stage is whether or not there is sufficient ground for proceeding against the accused. section 228 of the code of criminal procedure deals with framing of charge. it says that if the judge forms an opinion that there is ground for presuming that the accused has committed an offence, he shall frame a charge. 18. a perusal of the impugned order shows that the learned judge did not seriously consider whether there was ground for presuming that the applicant had committed any of the alleged offences. it appears that the impugned order came to be passed on an application which had been filed by the present applicant as also by a co-accused damu - accused no.7; and perhaps, because of that, the learned sessions judge failed to focus specifically on the case of the applicant. 19. in my opinion, the order directing framing of charge against the applicant is neither proper nor legal. the same is therefore required to be interfered with in the revisional jurisdiction. 20. revision application is allowed. 21. the applicant shall stand discharged. 22. the learned sessions judge shall proceed further with the case in accordance with law.
Judgment:

Oral Order:

By consent, admitted and taken up for hearing forthwith. By consent, calling for Record and Proceedings is dispensed with.

2. The applicant is one of the accused in Sessions Case No.25 of 2010, pending before the Court of Sessions at Dadra and Nagar Haveli, Silvassa. The allegation against the applicant and other accused is that they have committed offences punishable under section 302 of the IPC, 143 of the IPC, 147 of the IPC and 506 of the IPC. The applicant made an application for discharge contending that there were no sufficient grounds for proceeding against him, but the said application was rejected by the learned Sessions Judge by his order dated 5 June 2012. Being aggrieved by the said order of rejection, the applicant has approached this Court invoking its revisional jurisdiction.

3. I have heard Mr.Gole, learned Advocate for the applicant and Mr.D.A. Nalawade, learned Public Prosecutor for the Union Territory of Dadra and Nagar Haveli. Mr.Nalawade has tendered the affidavit in reply of the Investigating Officer and the same is taken on record.

4. With the assistance of the learned counsel, I have gone through the impugned order and the copy of the chargesheet together with English translation of the statements recorded during investigation, which are annexed to the revision application.

5. The First Information Report has been lodged by Kakadbhai the victim himself. He was assaulted on 24 August 2010 whereafter he was admitted in the hospital. It was in the hospital that his statement was recorded and treated as the First Information Report. Kakadbhai died on 5 September 2010 and thereafter, the offence punishable under section 302 of the IPC was added in the said case, which had been initially registered only in respect of offences punishable under section 143, 147, 447, 323, 504 and 506 of the Indian Penal Code.

6. The First Information Report shows that due to some quarrel, the First Informant was assaulted by one Devu Ambat, Vasant Navsa, Haliya, Vajiya and two-three others. The First Information Report does not speak of the presence of the applicant at the time of the incident of assault. As a matter of fact, it is nobody's case that the applicant was one of the assailants or that he was present at the time of assault along with other assailants.

7. The statements of persons who claim to have witnesses the incident of assault also do not implicate the applicant as one of the assailants, and as already observed, the statements even do not allege the presence of the applicant at the time of the assault.

8. The applicant comes in picture in this manner: Jaywanti, daughter of Kakadbhai wanted to go to Dolara, and had for that purpose, contacted one Jairam who owns an autorickshaw. In the meanwhile, the assault on Kakadbhai took place. Jaywanti, on learning about it wanted to inform the police and was proceeding in the rickshaw of the said Jairam. It is at that time, the applicant along with some other accused who are said to be the assailants, stopped the said rickshaw by showing his hand and threatened Jairam by saying that 'Jairam was roaming with Kakadbhai and thereafter if he would roam with Kakadbhai, he would also be beaten up.'

9. This statement of Jaywanti is recorded on 27 August 2010. It may be recalled that the assault had taken place on 24 August 2010.

10. It is conceded that except this, no other role has been attributed to the present applicant.

11. Mr.Nalawade, Public Prosecutor contended that this is sufficient to show the prima facie involvement of the applicant in the alleged offences. According to him, the fact that the applicant was in the company of other persons who were alleged to be assailants, is significant. He submitted that the words attributed to the applicant: viz 'that Jairam should not roam with Kakadbhai and that if he would do so, he would also be beaten', are indicative of the involvement of the applicant in the conspiracy.

12. It is not possible to accept this contention. Even if the fact that the statement of Jaywanti was recorded after three days from the incident is ignored, the fact remains that the role attributed to the applicant would only show that 'he had learned about the assault at that time'. This would not show that he had knowledge of the fact that the assaults had been pre-planned by any of the assailants or other accused. In fact, there has been no charge of an offence punishable under section 120B of the IPC. It is not the theory of the prosecution that Kakadbhai was assaulted in furtherance of a conspiracy between the accused persons. Therefore, the question of the applicant being a party to any conspiracy, does not arise.

13. The applicant is also not alleged to be a member of the unlawful assembly that assaulted Kakadbhai.

14. It is also not the case of the prosecution that the assault was in furtherance of the common intention of all the accused including the applicant and in any case, when the applicant was not present on the spot, the question of holding him liable by virtue of the provisions of section 34 of the IPC, has also to be ruled out. In fact, the provisions of section 34 of the IPC, have not been applied against the accused persons.

15. It is in these circumstances one has to consider whether the utterance attributed to the applicant, after the incident had taken place, would show his involvement in the alleged assault. The answer has to be in the negative.

16. Undoubtedly, an attempt has been made to show that the utterance was actually a threat, but going by the words used, it is difficult to term it as 'threat'. It could simply be a 'caution' also.

17. Section 227 of the Code of Criminal Procedure reads as under:-

"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."

Thus, what the Judge has to consider at that stage is whether or not there is sufficient ground for proceeding against the accused. Section 228 of the Code of Criminal Procedure deals with framing of charge. It says that if the Judge forms an opinion that there is ground for presuming that the accused has committed an offence, he shall frame a charge.

18. A perusal of the impugned order shows that the learned Judge did not seriously consider whether there was ground for presuming that the applicant had committed any of the alleged offences. It appears that the impugned order came to be passed on an application which had been filed by the present applicant as also by a co-accused Damu - accused no.7; and perhaps, because of that, the learned Sessions Judge failed to focus specifically on the case of the applicant.

19. In my opinion, the order directing framing of charge against the applicant is neither proper nor legal. The same is therefore required to be interfered with in the revisional jurisdiction.

20. Revision Application is allowed.

21. The applicant shall stand discharged.

22. The learned Sessions Judge shall proceed further with the case in accordance with law.