IN THE COURT OF SESSIONS GREATER BOMBAY....

CRA 220/13 1

IN THE COURT OF SESSIONS GREATER BOMBAY.

CRIMINAL REVISION APPLICATION No.220 of 2013 IN

C.C.No.490/PS of 2005

Salman Salim KhanAge47 years, Occupation: ActorGalaxy Apartments, B.J. Road,Bandstand, Bandra(West),Mumbai 400 050. ..... Applicant/Accused.

V/s.The State of MaharashtraThrough Senior Inspector of PoliceBandra Police Station ..... Respondent.

Advocate Shri Ashok Mundargi for applicant/Accused.Advocate Shri Shankar Erande for the State.Advocate Smt. Abha Singh for intervener.

CORAM : HIS HONOUR ADDL. SESSIONS JUDGE SHRI U.B. HEJIB (COURT ROOM NO.25)

DATED : 24th June, 2013

ORAL ORDER

1. This Revision Application has been directed by the

Applicant/Accused in Criminal Case No.490/PS/05 on the file of the Ld. Addl.

Chief Metropolitan Magistrate, 9th Court at Bandra, Mumbai against the

order dated 31/1/2013 by which he committed the case to the Court of

Sessions by forming judicial opinion that in this case Section 304 (II) of IPC,

1860 has been attracted,which after committal has been numbered as

Sessions Case No.240/2013.

2. The applicant/accused herein was originally charged of an

offence punishable under sections 304 A, 279, 337, 338, 427 IPC and 134(a)

(b) read with sections 181 and 185 of the Motor Vehicles Act, 1998 as also

CRA 220/13 2

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 applicant/accused 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.

3. It is the case of the prosecution that on the night intervening the

27th and 28th September, 2002, the applicant/accused 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 304 A 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 applicant/accused 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

applicant/accused 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 of IPC and if at all, only a

charge for an offence punishable under section 304 A 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.

4. 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

CRA 220/13 3

Criminal Appellate Bench of the High Court of Judicature at Bombay. The

Hon'ble 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 applicant/accused 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 Hon'ble High Court including one under section 304A

IPC.

5. It is against the said order of the Hon'ble High Court, the State

of Maharashtra had preferred Appeal (CRL) 1508 of 2003 before the Hon'ble

Apex Court .

6. The said Appeal (CRL) 1508 of 2003 was heard by the Hon'ble

Apex Court and was adjudicated on 18/12/2003. The Hon'ble Apex Court

has observed as under :

“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 preempted.

We are of the opinion that though it is open to a High

CRA 220/13 4

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 nonexistence 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. 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

CRA 220/13 5

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”

7. Thereafter the trial was held before the ld. Magistrate who

examined as many as 17 witnesses during the course of trial. While the trial

was in progress, an application was filed by the State U/s. 323 r/w 216 of

Cr.P.C. for committing the case to the Court of Sessions, as Sec. 304(II) of IPC

was attracted. The said application was heard by the ld. Magistrate. After

hearing both the sides, ultimately by order dated 31/01/2013 interalia

holding that he has empowerment by virtue of Sec.323 of Cr.P.C. to commit

the case to the Court of Sessions on the basis of available evidence. He has

relied upon and discussed the evidence of PW1 Ravindra Patil, Security

Guard from Police department for the security of the accused who was sitting

near the seat of the applicant/accused as per the prosecution story, PW14

Dattatray Balashankar (Asst. Chemical Analyzer), PW9 Rizwan Ali a hotel

manager who stated that applicant/accused purchased a beer cocktail and

Barawardi wine from his hotel and PW2 Ram Asara Ramdev Pandya,who

stated in his evidence that,accused went away along with other persons from

the spot of the incident immediately after the incident. The ld. Magistrate

was of the clear opinion that it was unnecessary for him to examine all the

witnesses and once the evidence with the case has ripen for being committed,

it is open for him to commit the case to the Court of Sessions without any

amount of delay any further. Ultimately he committed the case vide the

impugned order. This is the subject matter of the present Revision.

Submissions at the bar by the ld. APP Shri Shankar Erande .

CRA 220/13 6

8. It is vehemently submitted by the ld. APP Shri Shankar Erande

that since the prosecution summoned 39 witnesses and inasmuch as only 14

witnesses could be found, the prosecution had no other alternative but to

examine them. According to the ld.APP PW1 the complainant Ravindra Patil,

police guard is the star witness. His evidence unerringly shows that at the

relevant time, the applicant/accused was drunk and in that condition he

drove the car and despite his giving alarm while taking the right turn to slow

down the speed, the applicant/accused paid no heed to the same. The car

ultimately rammed on the footpath resulting into the mishap in question.

Moreover, in the submission of the ld. APP, the applicant/accused was well

aware of the topography of the entire area as he is the resident of that area

itself. The applicant/accused therefore had requisite knowledge that by his

culpable rashness if the car is driven from the footpath it is likely to take away

the lives of persons or likely to cause injuries to many persons. Therefore in

his humble view, Sec. 304(II) of IPC has been rightly prima facie said to be

attracted by the ld. Magistrate and no fault can be found in the impugned

order.

Role of the Intervenor

9. Advocate Smt. Abba Singh is appearing for the Intervenor.

However, she made it very clear that her intervention would be visavis full

fledged trial and therefore in respect of the present Revision, it is unnecessary

excerpt as to what she has addressed to the court.

S ubmissions at the bar by the ld. advocate Shri Ashok Mundargi for the

applicant/accused.

10. Per contra in the submission of the ld. advocate Shri Ashok

Mundargi for the applicant/accused, the impugned order suffers from

manifold infirmities. In his fervent submission, without prejudice to the case

of accused that he was not driving the car in question and was not under the

influence of liquor ;

CRA 220/13 7

a) the Ld. Magistrate failed to appreciate that no prima facie

case has been made out much less visavis Sec.304(II) of IPC;

b) secondly the Ld. Magistrate misdirected himself in respect of

the phraseology employed by the Hon'ble Apex Court supra Cri. Appeal No.

1508/03 decided on 18/12/2003 which was the precondition and the

expression “evidence”,employed by the Apex Court does not alone mean only

examinationinchief but as well the crossexamination and the defence

evidence;

c) The Ld. Magistrate only erringly considered the evidence of

PW1 Ravindra Patil, the complainant, a police personnel without considering

the contradictions appearing in his crossexamination;

d) The Ld. Magistrate has also not considered the self

contradictory evidence in respect of collection of blood sample;

e) The Ld. Magistrate has also failed to appreciate that to

attract Sec. 304(II) of IPC it requires Mens Rea designed to commit an act

which is positive mental state of mind and a knowledge which is again a

positive state of mind about the result to be achieved by indulging in such act.

Therefore there cannot be any alternative for additionally charging U/s.

304(II) of IPC along with Sec. 304 A of IPC. According to the ld. advocate the

term “knowledge” is not merely a probability and to attract “knowledge” as

contemplated by Sec. 304(II) of IPC even driving in the reckless manner or

even extreme negligence or extremely rash act cannot culminate into an act

with knowledge;

f) The ld. Magistrate has overlooked the fact that FIR of PW1

Ravindra Patil was in conflict with that of his subsequent belated statement

and the same was obviously procured by the State due to intense pressure and

criticism from Media;

(g) In respect of the submission of the ld. APP that the

Applicant/accused had crystal clear knowledge of the topography of the area

of the incident, the ld. advocate Shri Mundargi has submitted that there is no

CRA 220/13 8

fixed spot for the homeless people to sleep on footpaths every night and it is

not possible that even for a person staying in the same area to anticipate the

presence of people sleeping on a particular footpath at 2.45 a.m. in the night.

(h) He has also submitted that Learned Magistrate has only

considered in paragraph 21 of the Impugned Order that any man of

common prudence would have the knowledge to not drive the said Car in

a drunken state and at high speed or in other words the manner in which

the Applicant was driving the said Car. Assuming, while denying that the

Applicant was driving the said Car, and that too in a drunken state, it is

respectfully submitted that the Learned Magistrate ought to have also

considered whether the Applicant also had the knowledge that the particular

act of driving the said Car would result in the death of a person, more

specifically the death of the concerned person sleeping on the steps of

American Express Cleaners;

(i) Further, it is submitted that the medical evidence on record

in this regard does not go to prove in accordance with law that the Applicant

was drunk or under the influence of alcohol.

(j) The Ld. Magistrate did not in the proper perspective

appreciate that the complainant Ravindra Patil, a police personnel in the

interview dated 30/9/02 stated in 'MidDay' that “gaadi nahi ghoom rahi'

which clearly shows that the accused made possible effort to steer the car

away from the American Express Cleaners and therefore the charge U/s.

304(II) of IPC which is said to be attracted in the esteemed opinion of the Ld.

Magistrate is fallacious.

11. The ld. advocate for the applicant/accused has placed reliance

on the following decisions :

i) Nageshwar Shri Krishna Ghobe v. State of Maharashtra,

(1973) 4 SCC 23;

ii) State of Gujarat v. Haidarali Kalubhai, (1976) 1 SCC 889;

CRA 220/13 9

iii) Keshub Mahindra v. State of M.P., (1996) Cr.L.J. 2020;

(iv) Suresh Chaudhary v. State of Bihar, (2003) 4 SCC 128

and

(v) Prabhakaran v. State of Kerala, (2007) 14 SCC 269.

12. The first case of Nageshwar Ghobe was in respect of Sec.304 A

of IPC. In fact it was a criminal appeal after full fledged trial. In that case,

the accused who was convicted by the Hon'ble High Court came to be

acquitted by the Hon'ble Apex Court having regard to the peculiar facts and

evidence. There a pedestrian was running to the road. The Hon'ble Apex

Court observed that although the Hon'ble High Court may be right in holding

that the road at the relevant time was more than normally crowded, it was

still a question for consideration as to from how much distance the appellant

would have been able to see the pedestrian who was running to the road, an

aspect which was not adverted to by the Hon'ble High Court.

13. In the second decision of State of Gujarat v. Haidarali, the

principles enunciated by the Hon'ble Apex Court was that Section 304A

carves out a specific offence where death is caused by doing a rash or

negligent act and that act does not amount to culpable homicide under s.

299, I.P.C. or murder under s. 300 I.P.C.

14. In the third decision of Keshub Mahindra, it was held that in

framing a charge under Section 304 Part II, material on record must

indicate some act done by accused which had caused death with at least

such a knowledge that he by such an act was likely to cause death.

15. In the fourth decision of Suresh Chaudhary, conviction U/s. 302

of IPC r/w Sec. 27 of Arms Act came to be set aside by the Hon'ble Apex

Court. In that case the prosecution relied upon the sole testimony of the only

CRA 220/13 10

eyewitness PW8. The Ld. Sessions Judge as well as Hon'ble High Court

believed his evidence as was found sufficient in the normal to base the

conviction. However, in the opinion of the Hon'ble Apex Court since PW8

was a close relative and interested witness and since his evidence was fall of

contradictions, the same cannot be relied upon to base the conviction. In that

case, it is significant to note that there were other witnesses as well.

16. In the fifth ruling sought to be relied upon by the ld. advocate

Shri Mundargi for applicant/accused in the case of Prabhakaran v. State of

Kerala, it was held that Sec. 304 A applies to a case in which without any

intention or knowledge death is caused by rash or negligent act. In that case

school children crossing the road in que were run over by bus. The bus was

being driven at high speed and did not stop inspite of asking by the

passengers and pedestrians. The Hon'ble Apex Court held that no intention

on the part of driver stands proved and convicted the accused U/s. 304 A of

IPC instead of Sec.304(II) of IPC.There the driver however was not found in

the drunken condition.

Relevant case law on S. 323 of Cr.P.C.

17. After giving my anxious thought to the rival submissions

advanced at Bar and after perusal of the impugned order and material placed

on record, it is useful to have a glance over Sec. 323 of Cr.P.C., which is

reproduced below :

“When, after commencement of inquiry or trial, Magistrate finds case should be committed.—If, in any inquiry into an offence or a trial before a Magistrate, it appears to him at any stage of the proceedings before signing judgment that the case is one which ought to be tried by the Court of Session, he shall commit it to that Court under the provisions hereinbefore contained”

18. A casual glance over Sec.323 would make it abundantly clear “if

it appears to the Magistrate”. This key terminology will in my considered

CRA 220/13 11

view would be decisive interalia of the present Revision Application. The

expression “if it appears” make it mandatory for the Magistrate to form a

judicial opinion on the basis of bird’s eye view of evidence,an overview based on

broad probabilities. And then the Magistrate has to satisfy himself that the

proceedings must be committed to the Court of Sessions. After arriving at the

subjective satisfaction, nothing precludes the Magistrate from committing the

case to the Court of Sessions, may it be triable by the Court of Sessions or not.

The word “enquiry” as contemplated by Sec. 2(g) will have to be undergone

by the Magistrate. However it is not a microscopic enquiry which should give

rise to minitrial, roving enquiry or threadbare analysis of the evidence on

record or it should not appear that he is holding a minitrial. Based on the

said concept and on the basis of broad probability, the Magistrate must form

opinion that the case is fit to be committed to the Court of Sessions.

19. My view is supported by the decision of the Andhra Pradesh High Court,

in the case of The State V. Rajkumar Satthi and Others reported in 1980

Cr.LJ 1355 (AP) wherein it is held in para7 as below :

“Section 323 is a general provision. It applies to all cases tried under the Code. It corresponds to Section 347 of the old Code except that the words "or High Court" in Section 347 are deleted in Section 323. The Section confers in general terms a wide and comprehensive power on a Magistrate to commit a case to the Court of Session at any stage of the enquiry or trial before signing the judgment if only it appears to him that the case is one which ought to be tried by a Court of Session. If the case appears to be one which is exclusively triable by a Court of Session, the Magistrate has no alternative but to commit the case to a Court of Session as required under Sec. 209, Cr. P. C. It is only a case which appears to the Magistrate to be one which ought to be tried by the Court of Session that the Magistrate can act under this section The words "if it appears to him" contemplate the formulation of a judicial opinion. Though the discretion to commit is wide under this section, the discretion has to be exercised judicially and no hard and fast rule can be enunciated as to in what cases committal should

CRA 220/13 12

be made under this section and in what other cases it should not be made. It all depends on the facts and circumstances of each case”.

Relevant case law on S. 209 of Cr.P.C.

20. At the same time Sec. 209 of Cr.P.C. is also no less important

which is reproduced as under for ready reference :

“209. Commitment of case to Court of Session when offence is triable exclusively by it.—When in a case instituted on a police report or otherwise, the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall

(a) commit, after complying with the provisions of Section 207 or Section 208, as the case may be, the case to the Court of Session, and subject to the provisions of this Code relating to bail, remand the accused to custody until such commitment has been made] ;

(b) subject to the provisions of this Code relating to bail, remand the accused to custody during, and until the conclusion of, the trial ;

(c) send to that Court the record of the case and the documents and articles, if any, which are to be produced in evidence ;(d) notify the Public Prosecutor of the commitment of the case to the Court of Session”

21. Significantly in Sec.209 also the terminology employed is “if it

appears to the Magistrate that the offence is triable exclusively by the

Court of Sessions”. I need not delve deep to find out the exact meaning of

the terminology “if it appears” as way back in the case of Sanjay Gandhi v.

Union of India & Ors., reported in AIR 1978 SC 514 , the Hon'ble Apex

Court has considered this aspect. The scope of the process of satisfaction to

be directed by the Committal Court was adumbrated by the Hon'ble Apex

Court. This will be more clear from para2 of the judgement of the Hon'ble

Apex Court, in which the Hon'ble Apex Court has clearly laid down that the

Magistrate has only narrow inspection hole and if he goes to the merit of the

CRA 220/13 13

case even for a prima facie satisfaction that would frustrate Parliament's

purpose in remoulding S. 207A (old code) into its present non

discretionary shape. The relevant observations are excerpted as under :

“It is not open to the Committal Court to launch on a process of satisfying itself that a prima facie case has been made out on the merits. The jurisdiction once vested in the Committing Magistrate under the earlier Code having been eliminated now under the present code, to hold that he can go into the merits even for a prima facie satisfaction is to frustrate Parliament's purpose in remoulding S. 207A (old code) into its present nondiscretionary shape. Expedition intended by this change will bedefeated successfully, if interpretatively it is held that a dress rehearsal of a trial before the Magistrate is in order. The narrow inspection hole through which the Committee Magistrate has to look at the case limits him merely to ascertain whether the case, as disclosed by the police report, appears to him to show an offence triable solely by the Court of Session. If, by error, a wrong section of the Penal Code is quoted be may look into that aspect”.

22. My view is buttressed from the decision in the case of in the case of

Rajendra Kumar Jain etc. Vs. State Through Special Police Establishment

And ORS., reported in AIR 1980 SC 1510 wherein it was observed:

“In the second place it may not be accurate to say that the Committing Magistrate has no judicial function to perform under the 1973 Code of Criminal Procedure. S. 209 of the Criminal Procedure Code 1973 obliges the Magistrate to commit the case to the Court of Session when it appears to the Magistrate that the offence is triable exclusively by the Court of Session. Therefore, the Magistrate has to be satisfied that an offence is prima facie disclosed and the offence so disclosed is triable exclusively by the Court of Session. If no offence is disclosed the Magistrate may refuse to take cognizance of the case or if the offence disclosed is one not triable exclusively by the Court of Session he may proceed to deal with it under the other provisions of the Code. To that extent the Court of the Committing Magistrate does discharge a judicial function.”

CRA 220/13 14

23. So Apex Court regarded this as judicial function. S.209 of the

code lays down that if the Magistrate is of the exfacie opinion about the

prima facie disclosure of the offence exclusively triable by the Court of

Sessions, then and then only he has to commit the case, otherwise he may

proceed to deal with the case under the provisions of the Code. That was the

extent stated of judicial function to be discharged by the Magistrate. Same

view was echoed by the Bombay High Court in the case of State Of

Maharashtra vs Kali Edulji Vaid reported in 1998 All M R Cri 486. The

relevant observations are reproduced below for the kind perusal of Your

Lordships:

“Though it can be said that the Magistrate is not a mere post office in the committal case and that the Magistrate has got certain discretionary powers which he can exercise under Section 209 of Cr. P.C. the question arises in this case is to what extent this discretion can be exercised by the Magistrate. According to me that discretion cannot be extended to the level of appreciation of the materials and come to a different conclusion. In other words, he cannot embark upon the task of evaluating the materials or drawing his own inferences, other than materials disclosed to him. The limited discretion that Magistrate can exercise is that in a case where from the records before him on the face of it, if he can come to the conclusion other than prosecution alleged, he can exercise discretion and convert the charge or discharge the accused. But this discretion as I observed earlier is travelling in a very narrow compass. His decision can be rested only on an appraisal of the materials apparent on the face of record.”

24. This is sufficient to hold that the satisfaction of the Magistrate

must be based on, on the face of record and not hairsplitting enquiry is

contemplated by Sec. 209 of Cr.P.C.

25. The same view was taken by the Hon'ble High Court, Bombay in

which reliance was also placed on the decision in the case of Bholenath J.

CRA 220/13 15

Dhamankar V. State of Maharashtra 1995 Cr.LJ 1029 (BOM) in this behalf

wherein the decision of the Apex Court was relied upon in the case of State of

U. P. v. Lakshmi Brahman reported in AIR 1983 SC 439.The Apex Court

observed :

“Now, if under Sec. 207, the Magistrate is performing a judicial function of ascertaining whether copies have been supplied or not, it would undoubtedly be an inquiry for the purpose of satisfying himself that Sec. 207 has been complied with in letter and spirit. That satisfaction has to be judicial satisfaction. It is not a trial but something other than a trial and being judicial function it would necessarily be an inquiry. The making of an order committing the accused to the Court of Session will equally be a stage in the inquiry and the inquiry culminates in making the order of commitment”.

26. The aforesaid caselaw of Hon'ble Apex Court has referred to the

case of Division Bench Ruling of our Hon'ble High court to unfold the very

purpose behind this inquiry in the case of Riyaz Hussein Kadar Hussein v.

State of Maharashtrareported in III (1993) CCR 2317 (DB) (Bombay.).

The Division Bench observed:

"Section 209 of the Cr. P.C. has been introduced by the new Code of Criminal Procedure and it provides for commitment of a case which is exclusively triable by a Court of Session. A reading of Section 209 of the Code would show that it is selfcontained Code. The object of inquiry under this Section is twofold, firstly to prevent the committal of cases in which there was no reasonable ground for conviction so as to, on one hand save the accused from the prolonged anxiety of undergoing a trial for offences that could not be brought home to him and on the other hand save the time of the Court being wasted over cases in which the evidence would obviously not justify a conviction. Section 209(b) also empowers the Committing Magistrate to remand the accused to custody during and until the conclusion of the trial subject to the provisions of Code relating to bail. No specific form of warrant has been prescribed under Section 209, Cr.P.C., while remanding accused to judicial custody at the time of commitment of the case. No reasons are required to be assigned for remanding the accused to jail

CRA 220/13 16

custody till the conclusion of the trial. The provisions of Clause (b) of Section 209, thus, vests the Magistrate with a power to authorise the detention of an accused in jail custody during and until the conclusion of the trial while committing him to stand his trial before the Sessions Court. In such a case even though all further proceedings are to take place before the Court of Session and no proceedings are to take place before the Magistrate, the detention of the accused in jail custody can be authorised by the Magistrate who commits the cases to Sessions."

27. It is thus very much clear that scrutiny which should be

undertaken by a Magistrate should not necessarily be elaborate or meticulous

enquiry but it should be directed to probe whether the material is adequate to

commit the accused to the Court of Sessions.

28. It is profitable to have a glance over the decision of the Hon'ble High

Court of Rajasthan reported in 2006 Cr.L.J 4344, in the case of Bheru Singh

V. State of Rajasthan & Ors., wherein it was held that:

“As soon as it strikes to the Magistrate judicially that the

case is ripen for committal he loses his grip over the case

and has no option but to commit the case. A word may be

said about the language of the section also. It is important to

note that the section significantly presupposes and inheres a

condition that, it appears to him at any stage of the

proceedings before signing judgment that the case is one

which ought to be tried by the Court of Session" which

only shows that the moment the Magistrate judicially

perceives that the case should be committed to the Court

of Session the Magistrate loses jurisdiction to entertain

and try the case.”

29. Very recently the Hon'ble Apex Court in the case of Ajay Kumar

Parma v. State of Rajasthan, reported in AIR 2013 SC 633 i.e. Bench

CRA 220/13 17

presided over by three Judges has given salutary guidelines in respect of

committal of case to the Court of Sessions.

30. The observations therein will also visualise the scheme of the

Code and the scope and ambit of determination by the Magistrate of the facts

stated in the report whether make out offence exclusively triable by the Court

of Sessions. The Hon'ble Apex Court has gone to the stage that if the case is

exclusively triable by the Court of Sessions in a case instituted by the police,

committal thereof by the Magistrate is mandatory. The aforesaid caselaw of

Hon'ble Apex Court in the case of Ajay Kumar makes this position of law

abundantly clear. The relevant observations are as under :

“The scheme of the Code, particularly, the provisions of Sections 207 to 209 Cr.P.C., mandate the Magistrate to commit the case to the Court of Sessions, when the chargesheet is filed. A conjoint reading of these provisions make it crystal clear that the committal of a case exclusively triable by the Court of Sessions, in a case instituted by the police is mandatory. The scheme of the Code simply provides that the Magistrate can determine, whether the facts stated in the report make out an offence triable exclusively, by the Court of Sessions. Once he reaches the conclusion that the facts alleged in the report, make out an offence triable exclusively by the Court of Sessions, he must commit the case to the Sessions Court”.

31. As I indicated herein before that even if the case may not be

exclusively triable by the Court of Sessions if the Magistrate forms an opinion

that it ought to be committed to the Court of Sessions it is open for him to

pass the order of committal. This view was taken by the Hon'ble High Court,

Bombay in the case of Baba Abdul Khan S/O Daulat Khan & Ors V. Smt.

A.D. Sawant, J.M.F.C., reported in 1994 Cri.L.J. 2836. The relevant para is

as under :

“Thus, from reading the provisions of Sections 322 to 325 of the Criminal Procedure Code, it is seen that (1) if it appears to the Magistrate from the facts disclosed in the police

CRA 220/13 18

report and other evidence that he will not be able to inflict adequate punishment in the case and, thus, the case ought to be tried by the Chief Judicial Magistrate, he is empowered to submit the case to the Chief Judicial Magistrate under S. 322 of Cr.P.C.; (2) if the Magistrate, after closing of the evidence of both the parties, finds the accused guilty and thinks that the accused ought to receive a punishment different in kind or severe than that which he is empowered to inflict, he is empowered to submit the case to the Chief Judicial Magistrate, under section 325 of Cr.P.C.; (3) if on the other hand, it appears to the Magistrate at any stage of the trial before signing the judgment that the case is one which ought to be tried by the Court of Session (who has concurrent jurisdiction), he shall commit the case to the Court of Session under section 323 of the Criminal Procedure Code.

Considering the specific provisions referred above, it is expected from the trial Court to exercise the discretion judicially after considering the circumstances of the case, the gravity of the offence and the punishment to be inflicted upon conviction.

It is, thus, clear from the above provisions that the Judicial Magistrate, First Class is empowered to transfer the case either to the Court of Chief Judicial Magistrate or to the Sessions Court. In a case of Shiv Dutt Salwan v. The State, (1984) 1 Crimes 470(2), the learned Judge observed that Section 323 of the Cr.P.C. gives a wide discretion to the Magistrate which should be exercised judiciously and not upon a mere request of a party. He should have adequate reason for sending a person to stand trial before a Court of Session for an offence which he could himself try. The learned Judge has considered various cases in which the concurrent jurisdiction of the Judicial Magistrate as also of the Chief Judicial Magistrate to transfer the cases to the superior Court under particular circumstances, are discussed.”

32. In a case of Krishnaji Prabhakar Khadilkar v. Emperor AIR

1929 Bom 313 : (1929 (30) Cri LJ 1090) it is held :

http://indiankanoon.org/doc/368732/

CRA 220/13 19

"Having regard to the seriousness of the offence and public importance of the case, committal to a Court of Session is directed."

33. The terminology “it appears” also came up for interpretation

before Hon'ble Allahabad High Court in the case of Jimedar Yadav Vs. State

of U.P. & Anr., reported in 2010 CR.L.J. 3613. The Court also referred supra

Bheru Singh V. State of Rajasthan & Ors reported in 2006 Cr.L.J 4344.

The Court held that the Magistrate is required to give reasons for taking a

view that the case ought to be committed to the Court of Sessions. The Court

also held that the powers U/s. 323 of Cr.P.C. are wide in nature and though

not exclusively triable by Court of Sessions if in the opinion of the Magistrate

the case should be tried by the court of Sessions, the Magistrate may commit

the case to the Court of Sessions and the powers are not circumscribed to any

extent. In the opinion of the Court the word “appears” means “seems” or to

be in one's opinion and does not mean “satisfied”. So even the court has

made the distinction between forming the opinion and achieving the

satisfaction. In that case, the court found that there was prima facie evidence

for committal and without making any reappraisal of the evidence, the court

adjudicated the Criminal Revision Petition and ultimately even dismissed the

same.

34. I am mindful of the decision of four Judges Bench of the Hon'ble

Apex Court in the case of Chhadamilal Jain and others v. State of U.P.. and

another, reported in AIR 1960 SC 41. The proposition in this case no doubt

fully supports the submission advanced by the Ld. Advocate Shri Mundargi for

applicant/accused that because no defence witnesses were permitted to be

examined the accused has been seriously prejudiced in his defence and

therefore the committal order is vitiated. The Hon'ble Apex Court observed

that charge framed without giving an opportunity to the accused to adduce

defence evidence and when no intimation was given to the accused of his

CRA 220/13 20

intention to commit, the committal order that was passed was illegal and has

prejudiced the accused. I have especially in view of this judicial

pronouncement of the larger Bench of the Hon'ble Apex Court, have perused

Sec. 207 to Sec.209 of old Code of Cr.P.C.,1860. However, it is unnecessary

for me to excerpt the bare text of the same as in supra decision of

Chhadamilal reported in AIR 1960 SC 41 itself the Hon'ble Apex Court has

clarified in para9 that by virtue of Sec. 208 of Cr.P.C. of old Code the accused

has right to produce the defence evidence. However the scheme of the New

Code of 1973 simply provides that the Magistrate can determine, whether the

facts stated in the report make out an offence triable exclusively, by the Court

of Sessions.This was enunciated by the Apex Court in supra Ajay Kumar

Parmar's case and at theblame of repetion I must excerpt the said observations

which read as under:

“13. The scheme of the Code, particularly, the provisions of Sections 207 to 209 Cr.P.C., mandate the Magistrate to commit the case to the Court of Sessions, when the charge-sheet is filed. A conjoint reading of these provisions make it crystal clear that the committal of a case exclusively triable by the Court of Sessions, in a case instituted by the police is mandatory. The scheme of the Code simply provides that the Magistrate can determine, whether the facts stated in the report make out an offence triable exclusively, by the Court of Sessions. Once he reaches the conclusion that the facts alleged in the report, make out an offence triable exclusively by the Court of Sessions, he must commit the case to the Sessions Court.”

35. There is still yet another decision of the Hon'ble Apex Court in

respect of the subject consideration i.e. the case of Sajjan Kumar v. Central

Bureau of Investigation reported in SC [JT 2010 (10) SC 413]. What are

the parameters for the committal of the case to the Court of Sessions were

adumbrated by the Hon'ble Apex Court. In the clear view of the Hon'ble Apex

Court if the evidence by which the guilt of the accused is sought to be proved

is fully accepted before its challenge in crossexamination or rebutted by the

defence evidence cannot show that the accused committed the offence then

CRA 220/13 21

there will not be sufficient ground for proceeding with the trial. The relevant

para19 reads as under :

“It is clear that at the initial stage, if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence, then it is not open to the court to say that there is no sufficient ground for proceeding against the accused. The presumption of the guilt of the accused which is to be drawn at the initial stage is only for the purpose of deciding prima facie whether the Court should proceed with the trial or not. If the evidence which the prosecution proposes to adduce prove the guilt of the accused even if fully accepted before it is challenged in crossexamination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial”

REASONS36. This is the clear indica of the legal exposition that if the

prosecution evidence is insufficient to commit the case to the Court of

Sessions even before the crossexamination or rebuttal evidence by the

defence, the Magistrate is not bound to commit the case to the Court of

Sessions and viceversa. This nullifies the submission of the ld. Advocate Shri

Mundargi for the applicant/accused that the committal order passed without

taking into account the effect of crossexamination of Ravindra Patil PW1 and

PW14 Asst. Chemical Analyzer Dattatray Balshankar or other witnesses and

since no opportunity was given to the accused to lead the evidence of defence

witness, the committal order has been rendered nugatory. I find absolutely no

substance in this submission in the light of the above judicial

pronouncements.

37. The Hon'ble Apex Court observed in supra Sajjan Kumar's case

that if there is 'some evidence' on which the conviction may be reasonably

based, the Magistrate must commit the case. The Hon'ble apex Court also

observed that the Magistrate should not make roving enquiry to the pros

CRA 220/13 22

and cons of the matter. The Hon'ble apex Court also observed that a

Magistrate enquiring into a case under Section 209 of the Cr.P.C. is not to act

as a mere Post Office and has to come to a conclusion whether the case before

him is fit for commitment of the accused to the Court of Session. The Hon'ble

apex Court also observed that he is entitled to sift and weigh the materials on

record, but only for seeing whether there is sufficient evidence for

commitment, and not whether there is sufficient evidence for conviction. The

Hon'ble apex Court also observed that if there is no prima facie evidence or

the evidence is totally unworthy of credit, it is the duty of the Magistrate to

discharge the accused. On the other hand, if there is some evidence on which

the conviction may reasonably be based, he must commit the case. It is also

clear that in exercising jurisdiction under Section 227 of Cr.P.C., the

Magistrate should not make a roving enquiry into the pros and cons of the

matter and weigh the evidence as if he was conducting a trial.

38. If the submission of the ld. advocate Shri Mundargi for the

applicant/accused that crossexamination of the prosecution witnesses should

be taken into consideration and also the submission that the defence witness

should have been allowed to be examined by the Magistrate is entertained

then that would tantamount to holding a 'Mini Trial' and then the expression

'appears', employed in Sec. 209 as well as Sec. 323 of Cr.P.C would become

dead letters on the statute book. Such a meticulous task or fine tuning of the

evidence at the stage of committal order is not contemplated by law. The

intention as well as wisdom of the Legislature is discernible from the

terminology in Sec. 209 as well as Sec.323 of Cr.P.C. by employing 'it

appears'. If the defence witnesses would have been allowed to come into the

picture and if the critical analysis of the evidence on the basis of cross

examination of the prosecution witnesses would have been undertaken and

ventured by the Magistrate then that would have been the full fledged

enquiry. As the same is contrary to the intention of the Legislature and the

CRA 220/13 23

same would have frustrated the Legislative intent, the same is not

permissible. That is why unlike old Code especially as in Secs. 207 and 208 of

Cr.P.C. we find no provision enabling the accused to lead evidence in the new

Code of Cr.P.C.,1973. By the new Code of 1973 by Sec.209, the intention and

wisdom of Legislature in deliberately omitting the right of the accused to

examine the defence witness is manifest and therefore the expression used is

'it appears'.

39. Now I shall advert to the next grievance of the ld. advocate Shri

Mundargi for the applicant/accused that all the witnesses are not examined.

Firstly as submitted by the ld. APP, the prosecution summoned 31 witnesses.

However, it could only procure the evidence of already examined witnesses

i.e. 17 witnesses. Secondly it is borne out from the above judicial

pronouncements that the satisfaction of a Judge about committal of a case is a

crucial one and if such satisfaction can be achieved and well founded on the

basis of available evidence then seeking multiplication of witnesses of the

witnesses would be a futile task. It is needless to mention here that it is well

acknowledged principles of law that it is the quality and not the quantity of

the witnesses which is material for the purpose of appraisal of evidence. That

is why in supra in Bheru Singh V. State of Rajasthan & Ors., reported in

2006 Cr.L.J 4344 it was clearly observed that in the moment the Magistrate

arrives at the satisfaction and forms a judicial opinion that the case has to be

committed to the Court of Sessions, he loses the control.

40. Another grievance of the ld. advocate for applicant/accused is

that the Magistrate has not suo moto arrived at such a conclusion. It may be

that attention of the Magistrate may have been invited by the prosecution. But

the fact remains that the Magistrate has formed a judicial opinion in respect

of the committal of the case. If he has formed judicial opinion then it makes

no difference whether suo moto has he formed or at the instance of the

CRA 220/13 24

prosecution. Significantly when the prosecution moved the Court for the

committal of the case,and the Magistrate formed a judicial opinion, the case

becomes covered by the dictum laid down supra in the case of Ajay Kumar

Parmar i.e. as it was the case instituted by the police report the committal of

a case, as the offence found was exclusively triable by the Court of Sessions

was a sinequanon.

41. Even in the case of Hem Chand V. State of Jharkhand reported in AIR

2008 SC 1903, the view was taken that at the stage of framing of charge, the

Court has to form prima facie satisfaction whether there is sufficient ground

for proceeding and appraisal of the evidence is not called for. The Court also

observed that even if the prosecution evidence is fully accepted before it is

challenged by the crossexamination or rebutted by the defence evidence

cannot show that the accused committed a particular offence then the same

can be quashed. The court ordinarily would not consider as to whether the

accused would be able to establish his defence. Mutatis mutandis these

observations principlewise would aptly apply to the instant case. The

relevant observations are as under :

“The Court at the stage of framing charge exercises a limited jurisdiction. It would only have to see as to whether a prima facie case has been made out. Whether a case of probable conviction for commission of an offence has been made out on the basis of the materials found during investigation should be the concern of the Court. It, at that stage, would not delve deep into the matter for the purpose of appreciation of evidence. It would ordinarily not consider as to whether the accused would be able to establish his defence, if any”.

Scope of Revision

42. The similar controversy came before three Judges' Bench of the

Hon'ble Apex Court in the case of State of Orissa Vs.Debendra Nath Padhi

reported in 2005 1 SCC 568. The Court over ruled the decision in Satish

Mehra v. Delhi Administration (Manu/SC/1580/1996) holding that the

CRA 220/13 25

trial Court has power to consider even the material which the accused may

produce. Suffice it to say that the court must restrict itself to examine the

legality, propriety and correctness of the order under challenge. It is well

settled that the court should not interfere with the impugned order unless it

results into miscarriage of justice and unless it is perverse. However qua the

court of appeal the revisional court cannot reappreciate and substitute its

view. In that view of the matter, the scope of the revisional jurisdiction is a

limited one.

43. I am buttressed in my view from the decision of the Hon'ble High Court

of Bombay, Nagpur Bench, firstly in the case of Purushottam s/o Sitaram

Raut V. The State of Maharashtrareported in 2007ALL M R CRI 1808

wherein it is held as under :

“The scope of revision is very limited. The court is not supposed to reassess the evidence unless it is shown that the approach of the courts below was perverse or that some illegality is committed. There are concurrent findings of the courts below. Bearing in mind this, the revision has to be decided”.

44. Similarly it was observed by the Hon'ble High Court of Bombay,

Nagpur Bench in the case of Smt.Anita w/o Anand Tambe V. The State of

Maharashtra, reported in 2007 ALL M R CRI 1807, as under :

“The scope of revision is very limited. The court can only look into the propriety and legality of the order.”

45. The Hon'ble Apex Court has observed in the following case that

unless there is manifest illegality, the court would not be justified in

interfering in the Revisional jurisdiction. It was observed in the case

Bindeshwari Prasad Singh alias B.P. Singh and others v/s. State of Bihar

(now Jharkhand) and another reported in (2002)6 SCC 650, as under :

“The instant case is not one where any such illegality was committed by the trial court. In the absence of any legal infirmity either in the procedure or in the conduct of the

CRA 220/13 26

trial, there was no justification for the High Court to interfere in exercise of its revisional jurisdiction. It has repeatedly been held that the High Court should not reappreciate the evidence to reach a finding different from the trial court. In the absence of manifest illegality resulting in grave miscarriage of justice, exercise of revisional jurisdiction in such cases is not warranted”.

46. As I indicated that unless the order is perverse, the court should

not interfere and although two views are possible on the basis of evidence on

record, the higher court should not disturb the opinion of the trial court.

There are weighty observations of the Hon'ble High Court of Bombay in which

reliance has been placed even on the decision of Hon'ble Supreme Court. In

the case reported in 2008 ALL M R CRI 1538, Prakash Somnath Boob V/s.

Jaiprakash Badrinarayan Rathi and Ors., it was held in para19 as under :

“19. Having said so, it is true that the jurisdiction of this Court while entertaining criminal revision is limited which is recognised by this Court and also by the Apex Court in number of decisions. Readily available decision is in the case of C.P.Fernandes v. Union territory of Goa, Daman & Diu,AIR 1977 SC 135, wherein the Apex Court has ruled that the Court should not interfere with the trial Court view unless found to be unreasonable or perverse. If two views are possible on the basis of evidence on record, the higher Court should not disturb the findings of the trial Court. The same principle is reiterated in the case of Varghese Thomas v. State of Kerala, 1977 SC 701.20. This Court not being a Court of appeal cannot reappreciate and substitute its view in exercise of revisional jurisdiction. Revisional jurisdiction is not only limited in scope but discretionary. The Court interferes in the revisional jurisdiction only in exceptional cases of flagrant miscarriage of justice as held by Apex Court in the case of State of Rajasthan v. Gurucharandas Chaddha, AIR 1979 SC 1895.No such case is made out by the applicant.21. In the light of the law laid down by the ApexCourt, if one turns to the evidence, it is not possible to come to the conclusion that the impugned order is perverse or that the Court below has committed any illegality in appreciating the evidence so as to misdirect itself to acquit accused persons. In my opinion, the evidence has been

CRA 220/13 27

rightly appreciated by the Court below. The view taken is a reasonable and possible view, which can very well be sustained on the basis of evidence available on record. In the above view of the matter, no case is made out to interfere with the impugned order.”

47. In other words, the revisional jurisdiction is akin to the

jurisdiction of monitoring jurisdiction to find out whether subordinate court

has exercised the jurisdiction vested in it or failed to exercise the jurisdiction

vested in it. In other words, the legality and propriety should only be the

target of the revisional court. This will be crystal clear from the Hon'ble Apex

Court's decision in the case of Associated Cement Co. Ltd. vs. Keshvanand

reported in AIR 1998 SC 596, wherein fine distinction between 'appeal'

and 'revision' was made. It was held in paras10 & 11 as under :

“10. It appears that learned single Judge has equated appellate powers with revisional powers, and that the core difference between an appeal and a revision has been overlooked. It is trite legal position that appellate jurisdiction is coextensive with original Court's jurisdiction as for appraisal and appreciation of evidence and reaching findings on facts and appellate Court is free to reach its own conclusion on evidence untrammelled by any finding entered by the trial Court. Revisional powers on the other hand belong to supervisory jurisdiction of a superior court. While exercising revisional powers the Court has to confine to the legality and propriety of the findings and also whether the subordinate Court has kept itself within the bounds of its jurisdiction including the question whether the Court has failed to exercise the jurisdiction vested in it. Though the difference between the two jurisdictions is subtle, it is quite real and has now become well recognised in legal provinces.

11. In State of Kerala v. K. M. Charia Abdullah & Co., AIR 1965 SC 1585, this Court has highlighted the difference between the two jurisdictions in the following words (para 5) :"There is an essential distinction between an appeal and a revision. The distinction is based on the differences implicit in the said two expressions. An appeal is a continuation of

CRA 220/13 28

the proceedings; in effect the entire proceedings are before the appellate authority and it has power to review the evidence subject to the statutory limitations prescribed. But in the case of a revision, whatever powers the revisional authority may or may not have, it has not the power to review the evidence unless the statute expressly confers on it that power." (Emphasis supplied)”

48. Keeping in view this yardstick if the court proceeds further then

the decision in supra Nageshwar Shri Krishna Ghobe, reported in (1973) 4

SCC 23 relied upon by the ld. advocate Shri Mundargi for the

applicant/accused is wholly misconceived. In that case PW8 was an

interested witness as well as close relative of the deceased. In the present

case, the star witness PW1 Ravindra Patil is a staff member from the police

department who was employed as a security guard for the accused. By any

stretch of imagination, he cannot be coloured as a partisan witness so as to

style him as an interested witness.

49. Secondly the incident had occurred after 2.15 a.m.. Ordinarily

at that time the entire city of Mumbai might be under the influence of sleep.

In that view of the matter, it is hard to digest that the prosecution had any

other witness in its armoury to produce inasmuch as,as per the own story of

the prosecution when the people gathered after the fateful incident, the

culprit had made his escape good and therefore neither the injured nor the

people gathered one can perceive must have any opportunity to view the

culprit or the scenario.

50. If that is so, then the action of the ld. Magistrate in placing

reliance on the testimony of PW1 Ravindra Patil cannot be faulted. Again it

is well settled law that if the testimony of the single witness is of sterling

quality and anchor sheet of evidence, trustworthy and reliable, then the court

should not search for multiplication by way of corroboration. The Hon'ble

CRA 220/13 29

Apex Court in the decision relied by the ld. advocate Shri Mundargi for the

applicant/accused in supra Nageshwar Shri Krishna Ghobe, reported in

(1973) 4 SCC 23 disbelieved evidence of PW8 not only because he was the

close relative or interested witness but because his evidence is fully

discrepant.

51. No doubt it is admitted by the star witness PW1 Ravindra Patil

in the crossexamination that the fact that the accused was in drunken

condition was not stated by him in the FIR(which is called as complaint in the

ordinary parlance). He has also admitted the fact that he asked the accused

before taking the right turn to scale down the speed has not been mentioned

in the FIR. The contradictions as above are the two fatal infirmities

according to the ld. advocate Shri Mundargi which should have resulted into

rejection of the application made by the prosecution to commit the case to

this court.

52. The FIR need not be encyclopedia is the well settled position of

law. Firstly this may be culled out from the decision of the Hon'ble Apex

Court in the case of Superintendent of Police, C.B.I. and others vs. Tapan

KR Singh reported in AIR 2003 SC 4140 in which it was observed that FIR is

not an encyclopedia which must disclose all the facts and details. No doubt

the significant omissions in the FIR may be relevant in line with Sec. 11 of

Evidence Act but since the court has not to undertake as per the supra judicial

pronouncements meticulous enquiry in respect of the matter under challenge,

the effect of the said omissions if any will have to be left to be decided in the

full fledged trial and the action of the ld. Magistrate cannot be faulted only

because he has not considered the effect of crossexamination of PW1

Ravindra Patil.

53. As I indicated that the prosecution is not expected to bring the

evidence of impossible character the same is equally well borne out from the

CRA 220/13 30

decision relied upon by the ld. advocate Shri Mundargi for the

applicant/accused in supra Nageshwar Sh. Krishna Ghobe,AIR 1973 SC 165.

The boot is rather on the other leg. Even the Hon'ble Apex Court observed

that in the road accidents by fast moving vehicles, it is difficult to find witness

who would be in a position to possibly affirm the sequence of vital events if it

is during the few moments immediately preceding the accident. Para6 which

is reproduced here would make this position very much clear.

“6. In cases of road accidents by fast moving vehicles it is ordinarily difficult to find witnesses who would be in a position to affirm positively the sequence of vital events during the few moments immediately preceding the actual accident, from which its true cause can be ascertained. When accidents take place on the road, people using the road or who may happen to be in close vicinity would normally be busy in their own pre-occupations and in the normal course their attention would be attracted only by the noise or the disturbance caused by the actual impact resulting from the accident itself. It is only then that they would look towards the direction of the noise and see what had happened. It is seldom - and it is only a matter of co-incidence - that a person may already be looking in the direction of the accident and may for that reason be in a position to see and later describe the sequence of events in which the accident occurred. At times it may also happen that after casually witnessing the occurrence those persons may feel disinclined to take any further interest in the matter, whatever be the reason for this disinclination. If, however, they do feel interested in going to the spot in their curiosity to know some thing more, then what they may happen to see there, would lead them to form some opinion or impression as to what in all likelihood must have led to the accident. Evidence of such persons, therefore, requires close scrutiny for finding out what they actually saw and what may be the result of their imaginative inference. Apart from the eye-witnesses, the only person who can be considered to be truly capable of satisfactorily explaining as to the circumstances leading to accidents like the present is the driver himself or in certain circumstances to some extent the person who is injured. In the present case the person who died in the accident is obviously not available for giving evidence. The bhaiya (Harbansingh) has also not been produced as a witness. Indeed, failure to produce him in this case has been the principal ground of attack by Shri Pardiwala and he has questioned the bona fides and the fairness of the prosecution as also the trustworthiness of the version given by the other witnesses.”

CRA 220/13 31

Therefore we can visualize the situation and fetters with which

the prosecution was surmounted and therefore it is extremely difficult to

blame the prosecution for either having not produced any more witness due

to inability of the prosecution to find them out or may be due to apathy of the

witness to come forward before the court to disclose the unvarnished truth for

one or other reason.

After recess .....in the open court......

54. Much ado is made by the accused of the fact that the Ld.

Magistrate has not considered the effect of Media Interview given by the star

witness Ravindra Patil to the MidDay newspaper on 30/9/2002 stating that

the accused shouted 'gaadi nahi ghoom rahi' and therefore immediately lost

control of the vehicle and it rammed into American Express Cleaners. The

fervent attempt of the ld. advocate Shri Mundargi for the applicant/accused is

that the accused strived to steer the car away from the American Express

Cleaners and therefore there is no even the remotest possibility of the

invocation of the charge U/s. 304(II) of IPC against the accused. In other

words, according to the ld. advocate the steering wheel of the car was

jammed due to which the car could not turn and therefore it is sheerly an

accident, unintentional one and therefore also Sec. 304(II) of IPC should not

have been attracted. Firstly whatever the Media Interview might have been

given by Ravindra Patil the star witness of the prosecution may be treated as a

defence of the accused. As indicated above as per the verdict of larger Bench

of the Hon'ble Apex Court in supra Ajay Kumar Parma v. State of Rajasthan,

reported in AIR 2013 SC 633, at the stage of committal it was not

permissible for the court to examine the weightage of defence evidence.

Therefore, if at all the ld. Magistrate had considered the fact of alleged

steering wheel getting jammed rather on that count alone his order could

have been criticized being illegal. This is one aspect but not all.

55. So far as the Media Interview is concerned, wide publicity was

given to the issue under consideration and the interview was arranged by

CRA 220/13 32

police. Whether statements given to the Media in the interview taken by the

journalists or reporters would amount to an evidence which can be considered

by the court is not the question that has been cropped up before this court at

this juncture. However, once the defence of the accused is not to be

considered as per supra observations of the Hon'ble Apex Court in Ajay

Kumar Parma v. State of Rajasthan, reported in AIR 2013 SC 633 then at

this juncture exfacie to my mind whatever statements might have been given

by the star witness of the prosecution Shri Ravindra Patil become insignificant

and cannot be considered.

56. Over and above in this behalf it is useful to refer to the famous

case of Parliament in the case of State (N.C.T. OF DELHI) Vs. Navjot

Sandhu@ Afsan Guru reported in AIR 2005 SC 3820. In the similar

situation the Hon'ble Apex Court was inclined to give no weightage to the

Media Interview. The relevant observations are as under :

“We are not prepared to attach any weight or credibility to the statements made in the course of such interview prearranged by the police. The police officials in their overzealousness arranged for a media interview which has evoked serious comments from the counsel about the manner in which publicity was sought to be given thereby. We think that the wrong step taken by the police should not enure to the benefit or detriment of either the prosecution or the accused”.

Therefore according to the Hon'ble Apex Court the said

statements would not enure either to the benefit of prosecution or detriment

of the accused or viceversa. The same analogy a fortiori applies to the instant

case. Therefore this circumstance is not at all profitable to the accused to

advance his case.At any rate this aspect may better be left to the full fledged

trial.

57. Now what is the effect of the supplementary statement dated

1/8/2002 of Ravindra Patil must necessarily be left to the full fledged trial as,

CRA 220/13 33

if the court adverts to that issue then that would be as if the intrinsic merits of

the case are gone into and adjudicated at the stage at which the said decision

is not warranted.

58. The ld. Magistrate has considered the evidence of PW1

Ravindra Patil showing that on 27/9/2002 he was attached to Security

Department and was assigned the job qua security guard of the accused. He

has also considered the evidence of Ravindra Patil that the accused was

driving his car Land Cruiser and at that time he was under the influence of

liquor. His evidence that the car was driven at the speed of 90 to 100 Km p.h.

has also been considered and the fact that he requested the accused to reduce

the speed at the junction of Hill Road as right turn was to pass is also taken

into account. However, the accused neglected the same and could not control

the car due to which the car went on foot path where several people were

sleeping on footpath is also taken into account. The evidence of Ravindra

Patil that the car climbed three steps and gave dash to the shutter of the shop

viz., American Express Bakery and broke the shutter and went inside at about

three and half feet is also taken into account. People gathered and shouted

and therefore the accused fled away and ultimately the matter was referred to

Bandra Police Station. One Noorwala Mehbood Sharif went for the heavenly

abode in the said mishap and four persons were injured.

59. The ld. Magistrate has also considered the evidence of PW9

Rizwan Ali. He is the hotel manager. He has testified that the accused

purchased a beer cocktail of Bacardi wine from his shop.

60. The ld.Magistrate has also considered the evidence of PW14

Dattatray K. Balshankar, Asst. C.A. stating that in the report Exh. P20 that

Ethyl alcohol was found in the blood sample of the accused. He has also

considered the evidence of PW1 Ravindra Patil showing that accused was

CRA 220/13 34

well aware of the road condition inasmuch as he was residing in the same

area.

61. The ld. Magistrate also considered the evidence of PW2 Ram

Asare Pandya. He has stated in the evidence that the accused went away

along with other persons from the spot of offence soon after the incident.

62. Having considered the totality of the evidence of all these

witnesses, the ld. Magistrate dogmatically formed the opinion that the

accused turned down the request of Ravindra Patil PW1 to drive the car at

moderate speed at the turn and without considering the nature of the road

situation drove the car resulting into the mishap and death of one person and

injuries to four persons. He also came to the conclusion that a person of

common prudence is deemed to have knowledge that he should not driven

the vehicle in drunken condition and at a high speed and in the manner in

which the accused was driving vehicle and therefore the accused has not only

offended the law but even the social duty. The ld. Magistrate has also given

his thought to the evidence of PW12 Rajendra Sadashiv, the Motor Vehicle

Inspector of R.T.O. as well as PW15 Dr. Shashikant J. Pawar, PW16 Vijay M.

Salunke, the police officer who took the accused to JJ Hospital for medical

examination, PW3 Sanba Kannappa Gowda, the spot panch and PW5 Mohd

Abdulla Rauf Shaikh. The ld. Magistrate has also considered as indicated

earlier the report of the C.A. Exh. P20 that Ethyl alcohol was found in the

blood sample of the accused. The ld. advocate Shri Mundargi for the

applicant/accused has made bonafide attempt to eclipse this report interalia

pointing out the various infirmities in blood collection and all that. Once the

evidence of PW1 Ravindra Patil as well as Hotel Manager PW8 Rizwan Ali is

sufficient to show that accused was in drunken condition,the report of the

C.A. will have to be accepted at this stage at its face value. At the best due to

the infirmities that may be pointed out the accused may have benefit of

CRA 220/13 35

acquittal from the offence U/s. 66(1)(b) of the Bombay Prohibition Act, but

the fact that he was driving while in the drunken condition cannot get effaced

or obliterated thereby. Moreover, at this stage, the merits and demerits of the

case as indicated above as per the various judicial pronouncements declared

by the Hon'ble Apex Court are not to be considered by holding 'Mini Trial'.

Therefore according to the ld. Magistrate the accused had requisite knowledge

as contemplated by Sec. 304(II) of IPC.

63. Now apart from the fact that Media Interview given by Shri

Ravindra Patil, Security Guard for the accused is not possible to be considered

at this stage because the same cannot be considered in line with the ratio of

the Hon'ble Apex Court in supra Parliament's Case as well as Ajay Parma's

case. However, the stage which is contemplated by supra Thakur Singh is yet

to come and at the stage of trial the same may be considered. In other

words, there is no hitch in placing reliance on the evidence of PW1 Ravindra

Patil at this juncture. Having applied the same, the conclusion with the

judicial opinion formed by the ld. Magistrate cannot be interferred with.

64. I shall at this juncture deal with the aspect of knowledge. With

regard to the question of knowledge contemplated in S. 304 PartII of the

I.P.C., I need not delve deep into this area inasmuch as the Division Bench of

the Bombay High Court in supra Pereira's case State of Maharashtra Vs.

Alister Anthony Pereira 2007(4) B.Cr.C. 31 has discussed, adumbrated

elaborately various pros and cons of the matter in greater minute details with

its legal implications along with the ample case laws. The Division Bench also

in the above scholarly Judgment illuminated the duty of the driver while

driving the vehicle on the public road Paras 30 to 47 even at the cost of

obesity of record would be pertinent to excerpt here for the clear idea of all

the facets.

“30. On 12th March 2007 the accused was

CRA 220/13 36

charged under section 304 (II) of IPC for causing death of seven persons who were sleeping on the footpath at Carter Road, Bandra (West) Mumbai by rash and negligent driving with the knowledge that they were sleeping on the footpath. He was further charged under section 338 of IPC for driving the vehicle rashly and in a negligent manner and thereby causing grievous hurt to 8 persons, who were sleeping on the footpath. On these two charges, the accused was put to trial and the prosecution had led its evidence to prove the said two charges. It needs to be mentioned that the FIR being FIR No.436 of 2006 dated 12th November 2006 was registered under section 304 (II), 279, 337, 338, 336, and 427 IPC read with section 185 of the Motor Vehicles Act, read with section 66(1)(b) of the Bombay Prohibition Act. However, the charge was framed only for two offences viz u/s 304(II) and 338 and neither the accused nor the State questioned the correctness of this order. The State has not raised any challenge on this ground even in the present appeals.

31. Under section 304(II), whoever commits culpable homicide not amounting to murder can be punished with imprisonment of either description for a term which may extend to 10 years or with fine or with both, if the act is done with knowledge that it is likely to cause death but without any intention to cause death or to cause such bodily injury, as is likely to cause death. A bare reading of this provision shows that there are three essential ingredients of the offence punishable under section 304(II); (a) accused must commit a culpable homicide not amounting to murder, (b) the act is done with knowledge that it is likely to cause death and (c)but without any intention to cause death. 32. Section 299 of IPC defines culpable homicide as whoever causes death by doing an act with the intention of causing death or with an intention of causing such bodily injury, as is likely to cause death or with the knowledge that it is likely by such act to cause death.

Illustration

(b) to section 299 indicates the kind of cases, which will fall within the ambit of section 299. A culpable homicide which is not a murder within the contemplation of the provisions of section 300 can alone fall within the scope of section 304(II). `Knowledge' and `intention' are the deciphering and

CRA 220/13 37

distinguishing factors. If an act is done with knowledge but without intention, then it would fall under section 304(II), but if there is intention for committing offence of culpable homicide, it would take it beyond the purview of this provision. The provision of section 304 falls into two different classes; one where offence is committed with intention of causing death or bodily injury as is likely to cause death providing life imprisonment or imprisonment for a term which may extend to 10 years with fine. The other part is relatable to the act which is done with knowledge that it is likely to cause death but where the element of intention is absent. There it prescribes different punishment of lesser gravity. The act done with knowledge of the end result being of the kind where the doer had reason to believe that the “actus reus” would result into an offence, the knowledge would be attributable to the offender. The court may, in a given set of facts, attribute to the intoxicated man same knowledge as if he was quite sober. This may not be quite true so far as the intention is concerned. `Knowledge' is an expression of wide connotation and is capable of varied interpretation in the context of the facts and circumstances of a given case. While doing an act, knowledge of consequence would be attributable to the accused, if it falls within the normal behaviour of the person of common prudence. It is difficult to state with certainty any essential constituent of `knowledge' but this aspect can safely be examined in the light of various judicial pronouncements and settled canons of criminal jurisprudence.

33.Let us examine the expression `knowledge' in different contexts as it is a most pertinent expression appearing in Section 304(II).

34. Law Lexicon by P. Ramanatha Aiyar, 1997 edition explains the word `knowledge' as certain perception of truth, act or state of knowing that which is or may be known, acquaintance with things ascertainable, reasonable conviction, anything which may be subject of human instructions. While drawing distinction between knowledge, actual knowledge and knowledge relatable to different expressions, it describes as under:

“1) `Knowledge' is confined to the personal knowledge of the person who has to deliver the account, including the information contained in all the documents which he

CRA 220/13 38

possesses or has custody of, or to which he is entitled, but no further....2) `Knowledge' and `actual knowledge' have sometimes been held to be synonymous. The `knowledge' as used in a contract by which a fidelity and causality company bound itself to make good (to a ban) such pecuniary loss as the latter might sustain by reason of the fraud or dishonesty of a named employee in connection with his duties, providing that the contract would be void if the bank continued in its service an employee of whose untrustworthiness they had knowledge, means actual knowledge and not constructive.3) Knowledge and Belief` knowledge' is nothing more than men's firm belief, and is distinguished from `belief' in that the latter includes things which do not make a very deep impression on the memory., The difference is ordinarily merely in degree.4) The meaning of the word `belief' and `knowledge', as defined by lexicographers, will show that there is a distinct and well defined difference between them. `Believe' is defined by Webster to mean to exercise trust or confidence, and by the Century Dictionary, to exercise belief in, to be perused upon evidence, arguments, and deductions, or by other circumstances other than personal knowledge. `Knowledge' , according to Webster, is the act or state of knowing , clear perception of fact, that which is or may be known. According to the Century Dictionary it means acquaintance with things ascertained or ascertainable, specific information. 5)Knowledge of the law `The knowledge of the law with which every man is charged includes a knowledge of the constituent facts which make the law. That the Legislature enacted a certain law is a fact, but a knowledge of the law imputed to every man comprises a knowledge of that fact. That a certain law is valid or void is another fact, but every man is presumed to know whether it is valid or void, else he could not know the law”.(Words and Phrases).

35. In a given circumstance `knowledge' may be construed quite differently from the expression `knowing'. Knowledge is of a lesser degree while `knowing' is of a definite connotation and it must be established that the offender knew about it. Knowledge has also been explained in the Judicial Dictionary by K.J. Aiyar's as under:

“Knowledge A clear and certain perception of that which

CRA 220/13 39

exists.Knowledge includes either personal knowledge or knowledge derived from documents. No restriction can be read in the word `knowledge' that it ought to be derived by ocular seeing of the event. Magistrate can take cognizance of the offence of his own knowledge derived from the police papers, FIR, and the final report under section 169 ( Raju alias Rajendra Singh vs State of Rajasthan, 1979 Cr L J (Raj) 300: 1979 Raj L.W. 67 : 1979 Raj Cri C 258: 1979 WLN 144) 36. One of the meanings given in the Oxford Dictionary of the word `knowledge' is:

“The fact of knowing a thing, state, etc or (in general sense person, acquaintance, familiarity gained by experience”). Acquaintance with a fact, perception, or certain information of a fact or matter, state of being aware or informed, consciousness (of anything). The object is usually a proposition expressed or implied, e.g., the knowledge that a person is poor, knowledge of his poverty..”

37. The Black's Law Dictionary, 6th Edition explains the word `knowledge' in different contexts and it would be helpful to have a glance at them with an object to find most appropriate meaning relatable to the requirements of Section 304(II) of IPC.:

“Knowledge. Acquaintance with fact or truth People v Henry, 23 Cal App 2d 155, 72, p 2d 915,921.It has also been defined as act or state of knowing or understanding, Writters v U S 70 App DC 316, 108, F 2d 837, 840 actual knowledge, notice or information, New York Underwriters Ins Co. v Cental Union Bank of South Carolina, C.C.A.S.C.65 F 2d 738, 739 assurance of fact or proposition fonded on perception by senses, or intuition, clear perception of that which exists, or of truth, fact or duty, firm belief; Writters v U S 70 App DC 316, 106, F 2d 837, 840, guilty knowledge, Goldsworthy v Anderson, 92 Colo 446, 21, P 24 718. information of fact, Green v Stewart, 106 Cal App 518, 289 P 940 944, means of mental impression, Howard v Whittaker, 250 Ky 836, 64, S W 2d 173 miscellaneous information and circumstances which engender belief to moral certainty or induce state of mind that one considers that he knows, Wise v Curdes 219 Ind 606, 40, NE 2d 122, 128, notice or knowledge sufficient to exercise attention and put person on guard and call for

CRA 220/13 40

inquiry, Iberville Land Co v Amerada Petroleum Corporation, C.C.A.La 141 F 2d 384, 389, personal cognizance or knowledge or means of knowledge, The Chickle DC Pa 54 F Supp 19,20, state of being or having become aware of fact or truth. Howard v Whittaker, 250 Ky 836 64 SW 2d 173.When knowledge of the existence of a particular fact is an element of an offence, such knowledge is established if a person is aware of a high probability of its existence, unless he actually believes that it does not exist. Knowledge consists in the perception of the truth of affirmative or negative propositions, while `belief' admits of all degrees, from the slightest suspicion to the fullest assurance. The difference between them is ordinarily merely in the degree, to be judged of by the court, when addressed to the court, by the jury, when addressed to the jury”.

38. The meaning of word `knowledge', as given in The New Oxford Dictionary of English can also be referred for understanding the expression in common parlance:

“Knowledge - facts, information and skills acquired by a person through experience or education, the theoretical or practical understanding of a subject, a thirst for knowledge her considerable knowledge of antique, What is known in a particular field or in total, facts and information, the transmission of knowledge”

39. `Knowledge' is again distinguishable from `reason to believe'.The term 'knowledge' contains higher degree while the term 'reason to believe' is a matter of lesser degree. In the first, the person has direct appeal to his sense, while in the latter, there is sufficient cause to believe. While determining knowledge in relation to an event, the conduct of the person prior to and at the time of the event is of relevant consideration. Actus reus requires that to constitute a crime there must be a result brought about by human conduct, to physical event, which law prohibits. When an individual pursues or follows a line of conduct, he is expected to produce certain results. Final events or results may be the outcome of different events or it

CRA 220/13 41

may be the result of a single act. If the end result is prohibited in law and if knowledge would have to be construed in the events of that case in relation to the evidence on record, the onus obviously is on the prosecution to prove the chain of acts even to attribute knowledge to the accused. The concept of `knowledge' has to be understood and applied to the facts of a given case in complete contra-distinction to the words `information' or `reasons to believe'. There may be difference of degree but that difference has to be kept in mind, as that alone is the paramount consideration even at the stage of framing charge whether under sections 300, 302 or 304 and for that matter, 304 (I) or (II) of the IPC ( See Commentary by K.D. Gaur, 3rd edition on IPC and Commentary on IPC by Ratanlal Dhirajlal, 31st enlarged edition of 2006).

40. The Supreme Court and various High Courts have also explained the word `knowledge'. To establish knowledge as an ingredient of criminal offence, there has to be an affirmative or circumstantial evidence to bring home to the accused that he had knowledge of his acts. What a person of normal and ordinary prudence foresee by utilization of his sense directly, would be knowledge. In the case of Jairaj vs State of Tamil Nadu, AIR 1976 SC 1519, the Supreme Court observed that knowledge of the likelihood of the death of the person is contemplated in law. Under section 304(II), if the result of the criminal act is death of the victim and if each of the assailantspossesses the knowledge that death is the likely consequence of criminal act, then there is no reason why section 34 should not be read with second part of section 304 to make each of such persons individually liable. (Afrahim Sheikh and ors. vs State of West Bengal (1964) 6 SCR 172).

41. It will be useful to refer to the facts of a case titled State of Gujarat vs Haidarali Kalubhai, 1976 (1) SCC 889, which had not been argued during the course of the hearing of this case. In that case the accused was charged for an offence under section 304 II on the allegation that he had caused death of a police officer lying on a cot from where he was

CRA 220/13 42

thrown out. According to the accused and as per his statement under section 313 of the Code, when he was reversing the vehicle, other truck was standing and while making his way to the narrow passage, the accelerator got stuck and the truck then went in high speed resulting in the accident. When the driver heard the noise, the cleaner of the truck told him that he had stuck the truck against a cot and people were injured. That obviously was a case of negligent driving simpliciter, as is clear from the attendant circumstances and no knowledge could be attributable to the accused in the facts and circumstances of the case that his reversing the vehicle could cause fatal accident, unlike the facts of the present case where direct evidence as well as attendant circumstances clearly demonstrate that safely an inference of knowledge could be drawn.

42. Another important aspect which has to be examined is that all persons are deemed to be in the knowledge of law. What is prohibited in law and what is an offence in law, are matters of public knowledge. Ignorance of law is not a valid defence when the person is committing an act or omission, which would result in an act prohibited in law. Therefore, the offender cannot take the plea of ignorance in that regard. (Joti Prasad vs State of Haryana, AIR 1993 SC 1167, and State of Maharashtra vs Mayer Hans George, AIR 1965 SC 722. It will be useful also to notice the judgment of the Supreme Court in the case of Joti Prasad vs State of Haryana, AIR 1993 SC 1167, where counterfeit court fee stamps were recovered from the possession of the accused, a licenced stamp vendor. The accused alleged that he had purchased the stamps from the treasury, but did not produce register of such purchase. The accused also did not make any effort to summon the record of the treasury. The court held that it would be proper to infer that the accused has knowledge or reason to believe that the stamps were counterfeit and observed as under:

“Under the Indian Penal law, guilt in respect of almost all the offences is fastened either on the ground of `intention' or `knowledge' or `reason to believe'. We are now concerned with the expressions `knowledge'

CRA 220/13 43

and `reason to believe'. `Knowledge' is an awareness on the part of the person concerned indicating his state of mind. `Reason to believe' is another facet of the state of mind. `Reason to believe' is not the same thing as `suspicion' or `doubt' and mere seeing also cannot be equated to believing, `Reason to believe' is a higher level of state of mind. Likewise `knowledge' will be slightly on higher plane than `reason to believe'. A person can be supposed to know where there is a direct appeal to his senses and a person is presumed to have a reason to believe if he has sufficient cause to believe the same. Section 26. IPC explains the meaning of the words `reason to believe' thus:

“Reason to believe” - a person is said to have “ reason to believe” a thing, if he has sufficient cause to believe that thing but not otherwise”

In substance what it means is that a person must have reason to believe if the circumstances are such that a reasonable man would, by probable reasoning, conclude or infer regarding the nature of the thing concerned. Such circumstances need not necessarily be capable of absolute conviction or inference; but it is sufficient if the circumstances are such creating a cause to believe by chain of probable reasoning leading to the conclusion or inference about the nature of the thing. These two requirements i.e. “ knowledge” and “reason to believe” have to be deduced from various circumstances in the case. In the context of the circumstances obtaining in the instant case namely the the appellant admittedly was a licenced stamp vendor and he was found in possession of counterfeit stamps, the explanation of accused also becomes relevant and important in assessing and appreciation whether he had such knowledge or reason to believe that the stamps were counterfeited. Admittedly he used to purchase stamps from the treasury and all such transactions are duly recorded in the official registers. There is absolutely no material whatsoever to show that the counterfeit stamps were in fact purchased by him from the treasury. A bare allegation by way of an explanation by the accused- appellant that he purchased all the stamps including the counterfeit ones from the

CRA 220/13 44

treasury appears on the face of it to be false, as he has neither produced registers maintained by him nor did he make even an effort to summon the treasury records. There is no material whatsoever even to probabilise such a plea. In these circumstances the only inference that can be drawn is that he had “knowledge” and “reason to believe” that the stamps which he had in his possession and which he was selling or offering to sell, were counterfeit ones. These ingredients of the two provisions of law are fully established. Therefore the convictions are correct. The offence also is a serious one and the sentence awarded is not excessive. The appeal is therefore dismissed.”

43. The concept of rash and negligent driving simpliciter can be attributable where there are no other attendant circumstances of culpable factors indicating additional conduct, act, omission or commission on the part of the offender, pre and post accident.'Knowledge' is a concept which would get attracted in the above circumstances as the case would fall beyond the known canons of rash and negligent driving simpliciter. Getting drunk and under the influence of liquor using a big stick or other weapon for giving blow on the head of a person resulting in death, would obviously be an act done with knowledge that the act would or is likely to cause death. Merely because an automotive car or scooter is involved in the same process would not by itself take the offence outside the scope of section 304 (II) of IPC. The court would have to examine this in the light of the evidence led by the prosecution, defence, if any, the links provided by the accused himself in his statement under section 313 and attendant proven circumstances of the case.

44. A very important principle of law has been enunciated by the Supreme Court in the case of Jayprakash vs State (Delhi Administration), 1991(2) SCC 32. The court accepted that intention and knowledge both are factors which have to be gathered from the facts and circumstances of each case and there cannot be a yardstick uniformly provided for application

CRA 220/13 45

of such principle. The Supreme Court in that case was dealing with an offence punishable under section 302 for committing offence under section 300 clause thirdly and while holding that the said act amounts to culpable homicide, and following the dictum of the court, stated distinguishably the principle of law as under:

“The question is not whether the prisoner intended to inflict a serious injury or a trivial one but whether he intended to inflict the injury that is proved to be present. If he can show that he did not, or if the totality of the circumstances justify such an inference, then, of course, the intent that the section requires is not proved. But if there is nothing beyond the injury and the fact that the appellant inflicted it, the only possible inference is that he intended to inflict it. Whether he knew of its seriousness, or intended serious consequences, is neither here not there. The question, so far as the intention is concerned, is not whether he intended to kill, or to inflict an injury of a particular degree of seriousness, but whether he intended to inflict the injury in question; and once the existence of the injury is proved the intention to cause it will be presumed unless the evidence or the circumstances warrant an opposite conclusion. But whether the intention is there or not is one of fact and not one of law. Whether the wound is serious or otherwise, and if serious, how serious, is a totally separate and distinct question and has nothing to do with the question whether the prisoner intended to inflict the injury in question. The language of Clause Thirdly of Section 300 speaks of intention at two places and in each the sequence is to be established by the prosecution before the case can fall in that clause. The 'intention' and 'knowledge' of the accused are subjective and invisible states of mind and their existence has to be gathered from the circumstances, such as the weapon used, the ferocity of attack, multiplicity of injuries and all other surrounding circumstances. It can thus be seen that the 'knowledge' as contrasted with 'intention' signify a state of mental realisation with the bare state of conscious awareness of certain facts in which human mind remains supine or

CRA 220/13 46

inactive. On the other hand, 'intention' is a conscious state in which mental faculties are aroused into activity and summoned into action for the purpose of achieving a conceived end.”

45. Section 304 Part-II requires that if an act is done with knowledge that it is likely to cause death, it is punishable under that provision. Culpable homicide not amounting to murder is the essential ingredient of a charge under section 304(II). Under section 299, culpable homicide is causing death by doing an àct', with intention of causing death as well as knowledge that it is likely to cause death. The entire emphasis is on the expression àct' and `knowledge'. `Knowledge', we have already dealt with at some length with its effect and relevance to the present case. We shall shortly proceed to discuss àct'. Even in its legal sense or even in common parlance 'act' means to take action or do something or to do anything in furtherance or even to fulfill function. Thus the expression àct' does not admit of any limitation, it can be anything and everything by any means. Offensive act may result from a blow, use of knife, gun and even can be by means of a automotive machine (motor vehicles etc.). It was nowhere contemplated by the Legislature that a particular method has to be used for constituting an act, which, if results in death of a person, would invite rigours of the section. If the offender has knowledge that his acts in normal course are likely to end in commission of result which is prohibited in law, the knowledge would be attributable to him, provided there is direct and/or circumstantial evidence in that regard. Comprehension of a reasonable person with ordinary prudence in regard to the result of his acts or omission, is a relevant consideration for a court to arrive at a conclusion, where the offender had knowledge of such events or extent thereof. The Supreme Court in the case of Jayprakash, 1991 (2) SCC 32 (supra) clearly stated that the knowledge of the accused is subject of invisible state of mind and their existence has to be gathered from the circumstances, such as weapon, force of the attack and other surrounding circumstances. `Knowledge' being of lesser degree has to depend considerably on attendant circumstances and awareness of a common

CRA 220/13 47

man in relation to the acts and deeds immediately preceding or at the time of occurrence of the offence. In the present case, the court has to examine whether a person in drunken condition, rashly and negligently chooses to drive in an, overcrowded car was fully aware that (a) poor persons sleep on the footpath of Mumbai (b) it is prohibited in law to drive a vehicle in drunken condition (under influence of liquor) and (c) it is also prohibited in law to drive a vehicle beyond permissible speed limit. Further it is to be noticed that a liquor bottle was recovered from the car of the accused and the medical evidence showed that the accused was having 0.112% w/v liquor (ethyl alcohol) in his blood (Exhibit 49). The attendant circumstances immediately preceding the accident have been stated in the FIR (Exhibit-13) that the vehicle was driven with high speed and the occupants of the car were making noise. This ex-facie cannot be said to be an act of simpliciter rash and negligent driving. The accused is young and obviously affluent person who owns a luxury car and can pay the fine of Rs.5 lacs as imposed by the trial court within a very short duration of pronouncement of the order of conviction. He is a person who is expected to be having knowledge of law, life in Mumbai and publicly known fact that poor labourers sleep on footpaths of Mumbai. All this imposes a legal obligation upon a person to drive the vehicle carefully at late hours of night and in any case not under the influence of liquor in a drunken condition or rashly. Possession and consumption of liquor is prohibited under section 66 of the Bombay Prohibition Act, 1949. Consumption or use of intoxicant while driving is punishable and driving rashly and negligently resulting in fatal accidents is an offence, are the matters of which the accused would be deemed to have knowledge. Besides this, accused was fully familiar with the area being the resident of Carter Road as indicated in the plea of the accused (Exhibit-7) and his statement made under Section 313 of the Code. As such, it could be safely recorded that he was aware of the persons (labourers) sleeping on the footpath on that road. On facts it can hardly be believed that a person in drunken condition or under the influence of liquor, having 0.112% v/v alcohol in his blood driving a vehicle rashly and negligently with high speed and

CRA 220/13 48

with high tape recorder sound, would not have knowledge that there is every likelihood of his meeting with an accident resulting in death or injury to others, particularly those sleeping on the footpaths. The knowledge of such facts can neither be far away from reality and, in any case, would squarely fall within the term of “knowledge” appearing in section 304(II).Keeping in mind the facts and circumstances of the present case the events resulting from such acts, omission and offences would be within the knowledge of the offender.

46. “Actual knowledge” stricto senso may not be the sine qua non of the ingredients of section 304(II) of IPC. 'Knowledge', as understood in its common parlance would have to be gathered from the evidence on record - substantive or circumstantial, and the attendant circumstances thereto. While objectively analysing the evidence on record for gathering knowledge contemplated under this provisions, the court, inter alia, may have to examine the following aspects to which knowledge may relate to:-

(a) The evidence and attendant circumstances in relation to an act or omission committed by the actor /offender prior to the actual occurrence of the incident;(b) Whether the actor/offender could reasonably perceive the consequences of his acts, misdeeds or omission, examined from the point of view of `normal human conduct of a person of common prudence'; and(c) Such offensive conduct actually resulted in an offence or an act prohibited by law and on a cumulative appreciation of evidence, the act done resulted in death or a bodily injury, which is likely to cause death, of course without any intention to cause death.

47. Knowledge is not a term to be construed in

abstract. It must be given objective meaning

keeping in view the facts and circumstances of

CRA 220/13 49

a given case. Simplest test would be whether

as a norm of normal behaviour the person can

perceive by his senses the consequences of his

acts, omissions or commission; where such

human conduct brings results which are

criminal offences, it would satisfy actus reus.

Where a physical event which is prohibited by

law is even preceded by offences, which is

known to the offender, the knowledge can be

gathered more affirmatively, as ultimately it is

a question of fact dependent upon the evidence

on record and the attendant circumstances.”

65. It is thus clear that the term 'knowledge' is certain perception of

truth, act or state of knowing that which is or may be known, acquaintance

with things ascertainable, reasonable conviction, anything which may be

subject of human instructions. What a person of normal and ordinary

prudence foresee by utilization of his sense directly, would be knowledge.

To put it simply and differently the person can be said to have reason to

believe if the circumstances are such that a reasonable man by questionable

reasoning may conclude or infer regarding the nature of things concerned.

So the yardstick given is of common man, a person of ordinary prudence.

However as per the decision in supra Perriera's case 'actual knowledge' in

stricto sensu may not be a sine qua non to attract the the ingredients of Sec.

304(II) of IPC. 'Knowledge' as understood in its common parlance would

have to be gathered from the evidence on record substantive or circumstantial

and the attendant circumstances. In that view of the matter, the reasoning

adopted by the ld. Magistrate that the accused being from self same locality

and vicinity must have knowledge about the situation of the road and taking

into account the fact that people are sleeping on the footpath must have taken

CRA 220/13 50

abundant precaution especially when pinch of salt was takenby PW1

Ravindra Patil by making a request to scale down the speed. When despite

this entreaty the accused paid no heed and still drove the car while in the

drunken condition, he cannot escape facing the trial in respect of offence

punishable U/s. 304(II) of IPC. This aspect with greater details was

considered in supra Perriera's case in para45(although at the stage of trial).

The question before the court was that a person in drunken condition, rashly

and negligently chooses to drive in an, overcrowded car was fully aware that

(a) poor persons sleep on the footpath of Mumbai (b) it is prohibited in law to

drive a vehicle in drunken condition (under influence of liquor) and (c) it is

also prohibited in law to drive a vehicle beyond permissible speed limit. This

clearly and surely negatives the submission of the learned Advocate Shri

Mundargi that the learned Magistrate failed to consider that there is no fixed

spot for the homeless people to sleep on footpaths every night and it is not

possible that even for a person staying in the same area to anticipate the

presence of people sleeping on a particular footpath at 2.45 a.m. in the night.

The Division Bench also considered the attendant circumstances immediately

preceding the accident have been stated in the FIR that the vehicle was driven

with high speed and the occupants of the car were making noise. In the

opinion of the court this exfacie cannot be said to be an act of simplicitor

rash and negligent driving. More or less the facts and circumstances in the

present case are selfsame and therefore when the accused allowed his senses

to lose and drove the car impatiently and in the overzealous manner and

moreover in excessive speed it apparently must be held that he had requisite

knowledge that by his act of such reckless and indiscriminate driving is likely

to cause death of persons sleeping on the footpath,more so despite giving

warning by the security guard PW1 Ravindra Patil he did not put restraint on

his driving. There seems exfacie no escape from this conclusion in my

dogmatic view.

CRA 220/13 51

66. The fallout of this discussion is that the ld. Magistrate has

judicially formed the opinion to commit the case to the Court of Sessions by

recording positive opinion that on the basis of evidence on record, Sec.

304(II) of IPC has been attracted and therefore in my humble but considered

view, his order suffers from no illegality and the same cannot be termed as

unreasonable or perverse. The same does not result into miscarriage of

justice. Therefore, in the light of supra decisions in 2008 All M R Cri 1538,

Prakash Somnath Boob V/s. Jaiprakash Badrinarayan Rathi and Ors.,

Purushottam s/o Sitaram Raut V. The State of Maharashtra pertaining to

Criminal Revision Application No.23 of 2007 and Bindeshwari Prasad

(2002 Vol.6, SCC 650) since there is no manifest illegality resulting into

grave miscarriage of justice,interference in the exercise of revisional

jurisdiction is not warranted.

67. The upshot of the discussion is that the Revision Application is

sans merits and the same is liable to be rejected in terms of the following

order :

O R D E R

The Criminal Revision Application No.220/13 against the order of the

Ld. Addl. Chief Metropolitan Magistrate, 9th Court, Bandra, Mumbai dated

31/01/2013 in Criminal Case No.490/PS/05 on the file of the Addl. Chief

Metropolitan Magistrate, 9th Court at Bandra, stands hereby dismissed with

costs.

(U.B. HEJIB), Addl. Sessions Judge,Date: 24/06/2013 Gr.Bombay

Dictated on : 24/06/2013Transcribed on : 26/06/2013Signed on : 28/06/2013.

IN THE COURT OF SESSIONS GREATER BOMBAY....

Documents

Transcript of IN THE COURT OF SESSIONS GREATER BOMBAY....