State
of Maharashtra Vs. Salman Salim Khan & Anr
[2003] Insc 663 (18
December 2003)
N. Santosh
Hegde & B.P. Singh
2 4615
2003 SANTOSH HEGDE, J.
Heard
learned counsel for the parties.
Leave
granted.
The
entire exercise which culminated in the impugned judgment of the High Court, in
our opinion, was an exercise in futility and sheer waste of time and money.
The
law governing the trial of criminal offences provides for alteration of charges
at any stage of the proceedings depending upon the evidence adduced in the
case. If the trial is being held before a Court of Magistrate it is open to
that court at any stage of trial if it comes to the conclusion that the
material on record indicates the commission of an offence which requires to be
tried by a superior court, it can always do so by committing such case for
further trial to a superior court as contemplated in the Code of Criminal
Procedure (the Code).
On the
contrary, if the trial is being conducted in a superior court like the Sessions
Court and if that court comes to the conclusion that the evidence produced in
the said trial makes out a lesser offence than the one with which the accused
is charged, it is always open to that court based on evidence to convict such
accused for a lesser offence. Thus, arguments regarding the framing of a proper
charge are best left to be decided by the trial court at an appropriate stage
of the trial.
Otherwise
as has happened in this case proceedings get protracted by the intervention of
the superior courts.
Now
coming to the present appeal :
The
respondent herein was originally charged of an offence punishable under
sections 304A, 279, 337, 338, 427 IPC and 134(a)(b) read with sections 181 and
185 of the Motor Vehicles Act, 1998 as also under section 66(1)(b) of the
Bombay Prohibition Act. All these offences are triable by a court of Magistrate
of competent jurisdiction. These charges against the respondents were
registered based on a complaint lodged by one Shri Ravindra Patil, a Police
Constable attached to the Security Department and posted with the respondent to
look after his security.
It is
the case of the prosecution that on the night intervening the 27th and 28th
September, 2002, the respondent drove his car under the influence of alcohol,
in a rash manner and caused the death of one person and caused grievous
injuries to four others who happened to be sleeping on the footpath. A few days
later the chargesheet filed as above, came to be modified based on the
additional statement of the complainant, and instead of section 304A IPC,
section 304 Part II, IPC was substituted which is an offence exclusively triable
by a Court of Sessions hence the learned Magistrate who took cognizance of the
offence, committed the said case to the Court of Sessions for trial.
It is
to be noted that the respondent was granted bail even after the charge was
modified to include section 304 Part II, IPC. On the framing of the charge
under section 304 Part II, IPC, the respondent filed Criminal Application
No.463 of 2003 in the Court of Sessions alleging that the facts as narrated in
the complaint did not constitute an offence punishable under section 304 Part
II, IPC and if at all, only a charge for an offence punishable under section
304A could be framed against him, apart from other offences triable by the
court of Magistrate. Said application came to be rejected by the Sessions Court
and the learned Sessions Judge then proceeded to frame charges; one of which
was for an offence punishable under section 304 Part II, IPC.
Being
aggrieved by the dismissal of his application and the consequential framing of
charge under section 304 Part II, the respondent preferred a criminal
application under section 482 of the Code before the Criminal Appellate Bench
of the High Court of Judicature at Bombay. The High Court by the impugned order
has allowed the said application and quashed the order made by the learned
Sessions Judge framing charge under section 304 Part II, IPC against the
respondent herein while it maintained the other charges and directed the appropriate
Magistrate's court to frame de novo charges under various sections mentioned in
the said impugned order of the High Court including one under section 304A IPC.
It is
against the said order of the High Court, the State of Maharashtra has preferred this appeal. Mr. Ashwani
Kumar, learned senior counsel appearing for the State of Maharashtra contended
that a perusal of the original complaint as supplemented by the additional
statement of the complainant clearly shows that the respondent drove his vehicle
on the day of the accident without holding a motor driving licence, under the
influence of alcohol, in a rash and negligent manner and failed to contain the
speed of the vehicle in spite of being cautioned by the complainant, thus
causing the death of one person and grievous injuries to four others.
Therefore, it is clear, at this stage at least, that the respondent had the
knowledge that by such act of his, he would be causing death of the victim if
he meets with an accident. Such knowledge, according to learned counsel, is
evident from the conduct of the respondent as could be seen from the averment
in the complaint itself. He also contended that the High Court in a petition
under section 482 of the Code could not have weighed the material that was before
the court nor could it have tested the veracity of the statement of the
complainant at this stage to come to the conclusion that the principal offence
would not fall under section 304, Part II, IPC. He further contended that by
doing so, the High Court has pre-judged the issue and by giving a conclusive
finding in this regard has pre-empted the courts below from assessing the
evidence during the trial and if need be, from properly altering the charges.
Mr. Harish
N Salve, learned senior counsel representing the respondent-accused, per
contra, contended that from a plain reading of the complaint which is the only
material available at this stage for the purpose of framing charges, no
reasonable person could ever have come to the conclusion that the respondent
ever had any knowledge that by his act of driving the motor vehicle, he would
cause such an act which would lead to the death of any person. He further
submitted that from the material on record itself it is clear that if at all
any act of the respondent is responsible for the death of the victim same
cannot be termed anything other than a rash and negligent act punishable under
section 304A. Learned senior counsel further submitted that since the learned
Sessions Judge while rejecting the application of the petitioner filed before
it in altering the charge from section 304 Part II to 304A, IPC, had itself
passed a lengthy order which indicated that the said court had formed a
conclusive opinion as to the nature of offence which definitely would have prejudiced
the case of the respondent in the trial, the High Court was left with no choice
but to decide this question as to the nature of offence if at all committed by
the respondent.
But
for the fact that two courts below i.e. the Sessions Court and the High Court
having gone into this issue at length and having expressed almost a conclusive
opinion as to the nature of offence, we would not have interfered with the
impugned order of the High Court because, as stated above, neither of the sides
would have been in any manner prejudiced in the trial by framing of a charge
either under section 304A or section 304 Part II, IPC except for the fact that
the forum trying the charge might have been different, which by itself, in our
opinion, would not cause any prejudice. This is because at any stage of the
trial it would have been open to the concerned court to have altered the charge
appropriately depending on the material that is brought before it in the form
of evidence. But now by virtue of the impugned judgment of the High Court even
if in the course of the trial the Magistrate were to come to the conclusion
that there is sufficient material to charge the respondent for a more serious
offence than the one punishable under section 304A, it will not be possible for
it to pass appropriate order. To that extent the prosecution case gets pre-
empted.
We are
of the opinion that though it is open to a High Court entertaining a petition
under section 482 of the Code to quash charges framed by the trial court, same
cannot be done by weighing the correctness or sufficiency of evidence. In a
case praying for quashing of the charge, the principle to be adopted by the
High Court should be that if the entire evidence produced by the prosecution is
to be believed, would it constitute an offence or not. The truthfulness, the
sufficiency and acceptability of the material produced at the time of framing
of charge can be done only at the stage of trial. By relying upon the decisions
of the apex Court most of which were with reference to appeals arising out of
convictions, we think the High Court was not justified in this case in giving a
finding as to the non-existence of material to frame a charge for an offence
punishable under section 304 Part II, IPC, therefore, so far as the finding
given by the High Court is concerned, we are satisfied that it is too premature
a finding and ought not to have been given at this stage. At the same time we
are also in agreement with the arguments of learned counsel for the respondents
that even the Sessions Court ought not to have expressed its views in such
certain terms which indicates that the Sessions Court had taken a final
decision in regard to the material to establish a charge punishable under
section 304 Part II, IPC.
Therefore,
we think it appropriate that the findings in regard to the sufficiency or
otherwise of the material to frame a charge punishable under section 304, Part
II, IPC of both the courts below should be set aside and it should be left to
be decided by the court trying the offence to alter or modify any such charge
at an appropriate stage based on material produced by way of evidence.
The
next question which then requires our consideration is whether in view of our
above finding, the charge framed by the Sessions Judge for an offence
punishable under section 304 Part II, IPC be sustained or one under section
304A as has been done by the High Court, should be retained ? We have been
informed that pursuant to the judgment of the High Court, the Metropolitan
Magistrate, 12th Court, Bandra, Mumbai, has already framed fresh charges under
section 304A and other provisions mentioned hereinabove and the trial has
commenced. Since any interference at this stage would not further the cause of
justice and would lead only to delay the course of justice, we think it
appropriate that the proceedings before the said Magistrate's Court should
continue and the trial should proceed on the basis of the charges framed by it
but we make it very clear that at any appropriate stage if the Magistrate comes
to the conclusion that there is sufficient material to charge the respondent
for a more serious offence than the one punishable under section 304A, he shall
proceed to do so without in any manner being hindered or influenced by the
observations or findings of the High Court in the impugned order or by the
order of the Sessions Court which framed the charge punishable under section
304 Part II, IPC. Such decision of the Magistrate shall be purely based on the
material brought in evidence at the trial.
We
make it clear that neither by sustaining the order of the High Court in
remitting the trial to the court of Magistrate, nor by our observations in this
judgment as to the acceptability or otherwise of the material now on record, we
have expressed any opinion on the merits of the case. Whatever is observed by
us in this judgment is solely for the purpose of disposal of this appeal.
With
the above observations, this appeal is disposed of.
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