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Gulam Kadar Gulam Rasul and ors. Vs. State of Maharashtra - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case NumberCriminal Application No. 104 of 1982
Judge
Reported in1982(1)BomCR928
ActsIndian Penal Code (IPC), 1860 - Sections 147, 148, 149, 302, 304, 323, 325, 330 and 341; Code of Criminal Procedure (CrPC) , 1973 - Sections 209
AppellantGulam Kadar Gulam Rasul and ors.
RespondentState of Maharashtra
Appellant AdvocateR.M. Agarwal, Adv.
Respondent AdvocateM.O. Gangakhedkar, P.P.
Excerpt:
.....due to injuries or any other cause, as opined by the medical officer, and the further fact that the death caused was by tuberculosis and heart failure show, that no offence under section 302 or under section 304 of the indian penal code was committed by the accused. i fail to understand as to why the learned magistrate has not framed a charge under section 149 of the indian penal code......their trial for the offences punishable under sections 147, 148, 341, 330 and 304 of the indian penal code and confirmed by the sessions judge, dhule.2. the brief facts of the case are that the deceased gona padvi was working as a watchman in a field. on 30th august, 1981, at about 7.00 p.m., gona padvi was returning with his wife, banabai from the field to village khapar, taluka akkalkuka, district dhule. when they came near a government godown, seven to eight persons, including the present petitioners accosted them and questioned them as to who committed the theft of banana plantation. when gona padvi feigned ignorance, he was assaulted by all the seven-eight persons. on hearing the shouts raised by banabai, some relatives came there and thereafter gona was taken to the house of.....
Judgment:

B.J. Rele, J.

1. This application is directed against the committal order passed by the learned Judicial Magistrate, First Class, Taloda, committing the petitioners-accused to stand their trial for the offences punishable under sections 147, 148, 341, 330 and 304 of the Indian Penal Code and confirmed by the Sessions Judge, Dhule.

2. The brief facts of the case are that the deceased Gona Padvi was working as a watchman in a field. On 30th August, 1981, at about 7.00 p.m., Gona Padvi was returning with his wife, Banabai from the field to village Khapar, Taluka Akkalkuka, District Dhule. When they came near a Government godown, seven to eight persons, including the present petitioners accosted them and questioned them as to who committed the theft of banana plantation. When Gona Padvi feigned ignorance, he was assaulted by all the seven-eight persons. On hearing the shouts raised by Banabai, some relatives came there and thereafter Gona was taken to the house of Imalibai. On 7th September, 1981 he was taken to the Medical Officer, Khapar. But as the injuries were of a minor nature, he was admitted as an out-door patient, and after giving some treatment, he was sent home. It appears that Gona again developed pain and he died.

3. On the facts stated above, charge was framed against the accused and they were committed to Sessions Court. The petitioners preferred a revision application against the committal order in the Court of Sessions. The learned Sessions Judge after observing that the committal order should not be mechanical order, and referring to the decision in the case of Kewal Krishan v. Suraj Bhan, : 1980CriLJ1271 , and to the case of this Court in Dr. Dattatraya Samant v. State of Maharashtra 1981 Cri lr 1819, further observed that for the purpose of constituting an offence under section 304 of the Indian Penal Code it has to be shown that the death was caused by or in consequence of the act of the accused. It was further observed, 'assuming that death was due to tuberculosis and heart failure, the question is whether it was accelerated by the act of the accused and there are some grounds to infer that it might have been accelerated by the act of the accused and if reasonable view is possible and if the trial Court has taken the same, I do not think that it invites revisional interference.' On this ground the learned Sessions Judge dismissed the revision application. Against the said order, the present application has been preferred by the petitioners.

4. It must be taken as a well-established principle of law that the committal order, which the Magistrate passes under section 209 of the Code of Criminal Procedure, is not a mechanical order. The Magistrate has to be satisfied prima facie that an offence is disclosed and that the offence so disclosed is triable exclusively by the Court of Session. If no offence is disclosed, the Magistrate may refuse to take cognizance or, if an offence is disclosed, which is not triable exclusively by the Court of Sessions, he may take cognizance of it and try the case himself. These principles are to be found in the case of Rahendra Kumar Jain v. State, : 1980CriLJ1084 . So also, this Court has in Datta Sammant's case taken the view that though, under section 209 there is no wholesale clipping of the jurisdiction of the Magistrate rendering it to be a nullity, yet, it is circumscribed by limitations and restrictions. There should be application of judicial mind for which purpose, perusal of the material on record is implied and in that sense, the approach may not be mechanical, but the judicial satisfaction is elevated only to the limited pedestal where it is made to appear to the authority of facts on the record and not further. It was further observed that when the forum is changed to the Court of Sessions, the nature of offence as also the involvement of the accused come into play. In short, there is thus a three-tier system where, at the first level, the offence is relevant; at the second, the accused; and at the third, both. Therefore, in committing the case, the Magistrate must apply his judicial mind.

5. In the present case, the post-mortem examination report shows that there was only a round abrasion on the chest to the left side just near the nipple 1 1/2' in diameter and what was seen was the searing of the abrasion. Age of the injury was more than 10 days. The Medical Officer who performed the post-mortem examination has opined that the probable cause of death was tuberculosis and heart failure. Death did not occur from injuries. The fact that the death did not occur due to injuries or any other cause, as opined by the Medical Officer, and the further fact that the death caused was by tuberculosis and heart failure show, that no offence under section 302 or under section 304 of the Indian Penal Code was committed by the accused. However, there is material on record to show that the accused assaulted the deceased. It may, at the highest, be an offence under sections 147, 148, 149, 330, 341 or section 325, if not under section 323 of the Indian Penal Code. I fail to understand as to why the learned Magistrate has not framed a charge under section 149 of the Indian Penal Code. But that is a different matter and when the Sessions Court will frame the charge, it will look into that aspect of the matter and frame a proper charge. In the present case, in view of the medical evidence, accepting the prosecution case at its face value, the offence under section 302 or under section 304 of the Indian Penal Code is not disclosed. The offence which may perhaps be disclosed is the offence under section 325 of the Indian Penal Code read with other sections mentioned above. The charge, from the material disclosed, would be under sections 147, 148, 330, 341 and under section 325 of the Indian Penal Code, provided there is material on record to frame a charge under section 325 of the Indian Penal Code. All these offences are triable by the Magistrate. The committal order, therefore, deserves to be set aside.

6. In the result, I pass the following order. Rule absolute. Committal order set aside. Matter sent to the Magistrate for trying the petitioner accused in accordance with law, in the light of the observations made in the judgment. Stay vacated.


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