Criminal Application (APL) No.599 of 2014,Criminal Revision Application No. 99 of 2014,Criminal Revision Application No. 104 of 2014

16th February, 2016.

Petitioner Counsel: Ms. NEETA JOG
Respondent Counsel: Shri R.M. PATWARDHAN, Shri A.K. BANGADKAR, A.P.P.

Cases Cited:
Century Spinning and Manufacturing Co. Ltd. Vs. The State of Maharashtra, 2015 ALL SCR (O.C.C.) 137=1972 CRI.L.J. 329 [Para 3]
Union of India Vs. Prafulla Kumar Samal & Anr., 2015 ALL SCR (O.C.C.) 119=AIR 1979 SC 366(1) [Para 3]

JUDGMENT

JUDGMENT :- Heard Ms. Neeta Jog, advocate for the applicants/accused, Shri R.M. Patwardhan, advocate for the non-applicant/complainant and Shri A.K. Bangadkar, A.P.P. for the non-applicant/State.

2. The accused are being prosecuted for the offence punishable under Sections 307, 326, 324, 504, 506 and 34 of the Indian Penal Code. The accused filed application praying that they be discharged from the charge of commission of offence punishable under Sections 307, 326 and 324 of the Indian Penal Code.

The learned Sessions Judge, by the impugned order, has concluded that the charge of commission of offence punishable under Section 307 of the Indian Penal Code is not made out against the accused. The learned Sessions Judge has concluded that the charge for commission of offence punishable under Sections 325, 324 and 34 of the Indian Penal Code can only be framed against the accused and in view of these conclusions, the learned Sessions Judge has remitted the matter to the learned Judicial Magistrate, First Class for framing charge accordingly and trying the accused according to law.

The accused have filed Criminal Application No.599/2014 under Section 482 of the Criminal Procedure Code, challenging the order passed by the learned Sessions Judge contending that the accused cannot be prosecuted even for the charge of commission of offence punishable under Sections 325, 324 and 34 of the Indian Penal Code and they be discharged from the prosecution launched against the accused in connection with Crime No.115/2011 registered with police station Kurha.

The complainant has filed Criminal Revision Application No.104/2014 challenging the order passed by the learned Sessions Judge contending that while considering the application under Section 227 of the Criminal Procedure Code filed by the accused, the Court can either discharge the accused or reject the prayer for discharge and it cannot examine the material on the record and cannot conclude as to for which offence the accused can be prosecuted. It is prayed that the order passed by the learned Sessions Judge be set aside and he be directed to proceed with the trial on the charges levelled against the accused for the offence punishable under Sections 307, 326, 324, 504, 506 and 34 of the Indian Penal Code.

The State of Maharashtra has filed Criminal Revision Application No.99/2014 challenging the order passed by the learned Sessions Judge on the same grounds as raised by the complainant.

All these three matters are disposed by this common judgment as same order is challenged in these three matters.

3. Ms. Neeta Jog, learned advocate for the accused has submitted that even if the averments of complaint/F.I.R. are considered to be true, they do not make out prima facie case for prosecution of the accused for the offence punishable under Sections 307, 326 and 324 of the Indian Penal Code. It is submitted that the complainant has come out with the false case and if the prosecution of the accused continues on the basis of the false complaint made by the complainant, it will cause irreparable injury to the accused and will adversely affect their social status. It is submitted that the learned Sessions Judge has found that the accused cannot be prosecuted for the offence punishable under Section 307 of the Indian Penal Code and has rightly discharged the accused from being prosecuted for the offence punishable under Section 307 of the Indian Penal Code. However, the learned Sessions Judge has committed an error in directing the learned Magistrate to frame charge against the accused for commission of offences punishable under Sections 325, 324 and 34 of the Indian Penal Code. It is submitted that the learned Sessions Judge has no jurisdiction to direct the learned Magistrate to frame charge against the accused. To support this submission, learned advocate has relied on the judgment given in the case of Century Spinning and Manufacturing Co. Ltd. (in Cr. A. No.63 at 1970) Ram Prasad Poddar and others (in Cr. A. No.64 of 1970) V/s. The State of Maharashtra (in both Appeals) reported in 1972 CRI.L.J. 329 : [2015 ALL SCR (O.C.C.) 137].

It is further submitted that the learned Sessions Judge has failed to exercise his jurisdiction under Section 227 of the Criminal Procedure Code by not properly examining the claim of the accused that they cannot be charged for the offence punishable under Sections 324, 325 and 34 of the Indian Penal Code. It is submitted that while considering the application filed by the accused under Section 227 of the Criminal Procedure Code, the Court can sift and weigh the evidence for finding out as to whether prima facie case for prosecution of the accused for the charge levelled against him is made out. To support this submission reliance is placed on the judgment given in the case of Union of India V/s. Prafulla Kumar Samal and another reported in AIR 1979 SC 366(1) : [2015 ALL SCR (O.C.C.) 119].

4. Shri R.M. Patwardhan, learned advocate for the complainant and Shri A.K. Bangadkar, leaned A.P.P. for the State of Maharashtra have submitted that the learned Sessions Judge has committed an error of jurisdiction by assessing the material on the record while considering the application filed by the accused under Section 227 of the Criminal Procedure Code for deciding as to for which offence the accused can be charged and prosecuted. It is submitted that while considering the application filed by the accused under Section 227 of the Criminal Procedure Code, the Court has to examine as to whether there is prima facie case against the accused for prosecuting the accused, or not. It is submitted that at this stage, the Court cannot sift and weigh the evidence to ascertain as to for which offence the accused can be prosecuted. The learned advocate for the complainant and the learned A.P.P. have submitted that the learned Sessions Judge having found that there is prima facie evidence on the record on the basis of which the prosecution of the accused can go on, the only course available to the learned Sessions Judge was to reject the application under Section 227 of the Criminal Procedure Code. It is prayed that the impugned order be set aside and the learned Sessions Judge be directed to proceed with the prosecution of the accused.

5. After considering the submissions made by the learned advocate for the complainant and the learned A.P.P., I find that even according to the learned Sessions Judge, prima facie evidence is available on the record for prosecuting the accused. The submissions made by the learned advocate for the complainant and the learned A.P.P. that the Court cannot sift and weigh the evidence on the record at the stage of considering the application filed by the accused under Section 227 of the Criminal Procedure Code to find out as to for which offence the accused is to be prosecuted are proper. Section 227 of the Criminal Procedure Code enables the Court to consider the record of the case and the documents submitted and if it is found that sufficient ground for proceeding against the accused is not existing, the Court has to discharge the accused after recording reasons for it. Section 227 of the Criminal Procedure Code, 1973 does not empower and authorize the Court to examine and conclude as to for which offence the accused has to be prosecuted.

6. The learned advocate for the complainant and the learned A.P.P. have submitted that there is evidence on the record which shows that the accused are liable for prosecution for the offence punishable under Section 307 of the Indian Penal Code and the learned Sessions Judge has not considered the evidence on the record in this regard.

I find that the learned Sessions Judge has concluded that the evidence on the record shows that the accused can be prosecuted for the offence punishable under Sections 325, 324 and 34 of the Indian Penal Code. The learned advocate for the complainant and the learned A.P.P. are perhaps right in making the grievance that the learned Sessions Judge should not have concluded at this stage that the accused can be prosecuted only for the offences punishable under Sections 325, 324 and 34 of the Indian Penal Code.

The learned Sessions Judge should have granted hearing to the State (and to the complainant, if permitted) at the stage of framing of charge as contemplated by Section 228 of the Criminal Procedure Code, before concluding that the accused can be prosecuted only for the offences punishable under Sections 325, 324 and 34 of the Indian Penal Code.

I find that the conclusions of the learned Sessions Judge that the accused cannot be discharged at this stage are proper. However, the conclusions of the learned Sessions Judge that the accused can be prosecuted only for the offences punishable under Sections 325, 324 and 34 of the Indian Penal Code are not proper at this stage.

7. Hence, the following order:

(i) The application filed by the accused under Section 227 of the Criminal Procedure Code is dismissed.

(ii) The order passed by the learned Sessions Judge in so far as it concludes that the accused can be prosecuted only for the offences punishable under Sections 325, 324 and 34 of the Indian Penal Code is set aside.

(iii) The learned Sessions Judge shall frame the charge against the accused on the basis of the material available on the record and after hearing the prosecution (and the complainant, if permissible) by the learned Sessions Judge.

(iv) If the learned Sessions Judge is of the opinion that the action as per Section 228(1)(a) of the Code of Criminal Procedure, 1973 is required, he may pass orders accordingly after framing the charge against the accused.

(v) The Criminal Application No.599/2014 is dismissed.

(vi) The Criminal Revision Application No.99/2014 is allowed.

(vii) The Criminal Revision Application No.104/2014 is allowed.

(viii) The parties shall appear before the learned Sessions Judge, Amravati where the Sessions Trial No.135/2012 was pending, on 13th April, 2016 at 11 a.m. and abide by further orders in the matter.

(ix) In the circumstances, the parties to bear their own costs.

Ordered accordingly.