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State Vs. Bavabhai Nagjibhai and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Case NumberCriminal Revn. Appln. No. 338 of 1962
Judge
Reported inAIR1963Guj162; 1963CriLJ17; (1963)0GLR602
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 207A, 207A(6), 207A(7), 209 and 342
AppellantState
RespondentBavabhai Nagjibhai and ors.
Appellant Advocate H.M. Chokshi, Govt. Pleader
Respondent Advocate P.D. Desai, Adv.
Cases ReferredArunachalam Swami v. Bombay State
Excerpt:
.....act by accused then he can be tried at sessions court - if commission of criminal act appears from evidence accused cannot be discharged under section 207a even if he can be discharged under section 209 - if case is on police report then accused cannot be discharged - if case on private complaint then accused can be discharged. - - 2. the learned counsel for the opponents, however, contends that there are concurrent findings of fact of both the lower courts, that the prosecution has failed to prove its case, that it is open to a magistrate before committing the accused for trial to consider the case of self-defence suggested by the accused in their, examination and that the courts below having held, that the case of self-defence is proved, this court should not interfere in..........word 'sufficient' is not justified by the wording of sub-section (6) of section 207-a. the learned trial magistrate has observed as follows in his judgment:-'it is my considered view after the most careful consideration of the evidence and ail the documents in this case that it would be not possible for any tribunal, a judge, or a jury, to believe in the evidence of the witnesses, jaga anop, gulab morai and vithal zina. it is also my considera-ed view that it will not be possible for any court or any jury to disbelieve in the version of the incident given by the accused. i therefore see no ground to commit the accused for trial to the sessions court and unnecessarily waste the precious time of that court.'the learned sessions judge has observed as follows in his judgment:-'...... the.....
Judgment:
ORDER

V.B. Raju, J.

1. This is a Revision Application by the State-against an order of discharge, discharging the three opponents against whom a police report was sent under Section 302 of the Indian Penal Code. The order of discharge was confirmed in revision by the learned Sessions Judge. In revision before me it is contended by the learned Government Pleader that the order of discharge in so far as Opponents Nos. 2 and 3 are concerned is erroneous. The learned Government Pleader has not contended that the order of discharge of Opponent No. 1 is erroneous.

2. The learned counsel for the opponents, however, contends that there are concurrent findings of fact of both the lower Courts, that the prosecution has failed to prove its case, that it is open to a Magistrate before committing the accused for trial to consider the case of self-defence suggested by the accused in their, examination and that the Courts below having held, that the case of self-defence is proved, this Court should not interfere in revision. He has also contended that the case of self-defence pleaded by Opponents Nos. 2 and 3 has been proved by the prosecution itself because according to the prosecution witnesses, it was the deceased who committed criminal trespass on the field of the accused at about 1.00 P. M. at night. The learned counsel for the opponents relics on Vadilal Panchal v. Dattatrsya, AIR 1960 SC 1113.

3. The instant case, arose out of a police report in writing, under Section 190(1)(b) Cr. P. Code.Section 196 provides that any Judicial Magistratemay take cognisance of any offence upon receiving a complaint of facts which constitute such, offence, upon receiving a report in writing of suchfacts made by any police-officer or upon information received from any person other than a police-officer, or upon his own knowledge or suspicion,that such offence hag been committed. The instantcase was under Clause (b) of Sub-section (i) of Section 190 and not Clause (a) which, refers to privatecomplaints.

4. Chapter XVI of the Code of Criminal Procedure refers to complaints to Magistrates by private persons of which cognizance is taken under Clause (a) of Section 190(r).

5. Chapter XVIII of the Code of Criminal Procedure deals with inquiry into cases triable by the Court of Session. In this Chapter Section 207A deals with the procedure to be adopted in proceedingsinstituted on a police report. Section 208 deals with proceedings instituted otherwise than on a police report. We have, therefore, to consider the provisions of Section 207A. Sub-sections (6) and (7) of this section read as follows:

'(6) When the evidence referred to in Sub-section (4) has been taken and the Magistrate, has considered all the documents referred to in Section 173, and has, if necessary, examined the accused for the purpose of enabling him to explain any cir-cumstances appearing in the evidence against him and given the prosecution and the accused an op-portunity of being heard, such Magistrate shall, if he is of opinion that such evidence and docu-ments disclose no grounds for committing the accused person for trial, record his reasons and dis-charge him, unless it appears to the Magistrate that such person should be tried before himself or some other Magistrate, in which case he shall proceed accordingly.

(7) When, upon such evidence being taken, such documents being considered, such examination (if any) being made and the prosecution andthe accused being given an opportunity of being heard, the Magistrate is of opinion that the accused should be committed for trial, he shall frame a charge under his hand, declaring with what offence the accused is charged'.

6. If is, therefore, clear that if the Magis-trate is of the opinion that the evidence and documents referred to in Sub-section (6) disclose no grounds for committing the accused, the Magistrate can discharge the accused. The words are 'disclose no grounds for committing the accused person for trial'.

7. Before the amendment in 1955, the sectiondealing with discharge of an accused person wasS. 209 and in that section the words used are 'theMagistrate shall, if he finds that there are not sufficient grounds for committing the accused person for trial, record his reasons and discharge him.....' The word 'sufficient' which was used before the word 'grounds' in Section 209 has beenomitted in Section 207A.

8. The word 'sufficient' is, however, to be found in Section 203 and also in Section 209 of the Code ofCriminal Procedure after amendment in 1955. It is, therefore, clear from Clause (6) of Section 207A that the Magistrate can discharge the accused only it the evidence and documents disclose no grounds for committing the accused. It is not for the Magistrate to decide whether there are sufficientgrounds or not for committing the accused. It is only if he can say that there are no grounds for committing the accused person for trial that he can discharge an accused person under Section 207A. But he can discharge an accused person under Section 769 if he finds that there are no sufficient grounds for committing the accused person for trial. Section 209 deals with private complaints of which cogni-zance is taken under Section 190(1)(a). When he takes cognizance of a police report in writing, under Section 190(1)(b), Section 207A applies and he can discharge an accused person only if the evidence and docu-ments referred to in Sub-section (6) disclose nogrounds for committing the accused person for trial. If they disclose some grounds, it is notopen to the Magistrate to discharge the accused on the ground that the grounds disclosed are not sufficient grounds.

9. Sub-section (7) of Section 207A explains when the Magistrate should commit the accused for trial to the Sessions Court. That sub-section merely says that if the Magistrate is of the opinion that the accused should be committed for trial, he shall frame a charge against the accused. This sub-section has to be read along with Sub-section (6). So read, it means that if the evidence and documents referred to in Section 207A disclose grounds for committing the accused for trial, the Magistrate should commit the accused for trial and should frame a charge.

10. It is, however, contended by the learned counsel for the opponents that it is open to the Magistrate to appreciate the evidence and to see if the case of self-defence is reasonable or not and for this purpose he relies on AIR 1960 SC 1113 (supra). It is not necessary to refer to this case because there their Lordships of the Supreme Court were dealing with a private complaint and an order passed under Section 203 dismissing a private complaint. Their Lordships were explaining the powers of Magistrates acting under Section 203 of the Code of Criminal Procedure. Their Lordships were not dealing with a case under Section 207-A and their Lordships did not explain the powers of Magistrates acting under Sub-section (6) or (7) of Section 207-A.

11. The learned counsel also relies on Ram-gopal Ganpatrai Ruia v. State of Bombay, AIR 1958 SC 97. There their Lordships of the Supreme Court were explaining the scope of Section 209 of the Code of Criminal Procedure. Their Lordships did not deal with Section 207-A and did not explain the powers of a Magistrate acting under Section 207-A. It is, therefore, not necessary to refer to this case of the Supreme Court.

12. It is next contended that in a criminal case, the prosecution must prove its case and the accused is not called upon to plead unless and until the prosecution has completely proved its case. It is also contended that according to both the Courts below the prosecution has failed to prove its case and that the prosecution witnesses are false.

13. In the instant case the prosecution did not rely upon direct evidence to prove the commission of the offence but on circumstantial evidence. There was, therefore, circumstantial evidence against the accused and in order to give an opportunity to the accused, when accused were questioned under Section 342, accused No. 2 admitted that he had caused an injury to the deceased. He pleaded that he did so in the exercise of the right of private defence. Accused No. 3 also admitted his presence near the deceased. According to him he himself was attacked by the deceased. The circumstance that accused No. 3 was present near the deceased at the time of his death and the circumstantial evidence tending to show that accused No. 2 gave a blow to deceased were, therefore, admitted by accused Nos. 2 and 3 respectively. It is true that both of them have pleaded self-defence. It is quite possible that theplea is genuine one. But having regard to the circumstances relied on by the prosecution which have been admitted by accused Nos. 2 and 3, it cannot be said that this is a case where there are no grounds for committing the accused persons for trial. If there was no evidence on behalf of the prosecution of a circumstantial nature against the accused, there was no need for the Magistrate to put any questions to the accused under Section 342. The object of Section 342 is to enable the accused to offer an explanation of the circumstances appearing in the evidence against him. If no circumstances appear in the evidence against him, there is nothing for the accused to explain and no questions need be put to the accused. When questions have been put to the accused under Section 342, the answers given by him can be taken into consideration.

14. It is, however, contended by the learned counsel that under Section 207-A (6), it is only the evidence taken in the Court and the documents that should be considered, and that considering the evidence and the documents, the Magistrate should find whether there are grounds for committing the accused or not. It is contended that for this purpose, namely, for the purpose of deciding whether there are grounds for committing the accused persons for trial, the answers given by the accused under Section 342 should not be taken into consideration at least against the accused. It is true that under Sub-section (6) of Section 207-A there is no reference to the answers given by an accused person under Section 342. But Section 342 itself provides that the answers may be taken into consideration.

15. It is next contended, however, that Section 207-A is a self-contained section and should not be read with Section 342. Sub-section (6) of Section 207-A, however, refers to the examination of the accused for the purpose of enabling him to explain any circumstances appearing in the evidence against him. Therefore, it is reasonable to hold that in addition to the evidence and documents, the explanation given by the accused person to explain the circumstances appearing in the evidence against him will have to be considered under Sub-section (6). The reason for the Legislature omitting any reference to the examination of the accused in the last four lines of Sub-section (6) is this: under Section 342 it is only if there are circumstances appearing in the evidence against the accused that the accused should be questioned. Therefore, the fact that the accused is questioned assumes that there are some circumstances appearing in the prosecution evidence against the ac-cused. That means that the evidence and the documents referred to themselves disclose circumstances appearing in tie evidence against him. Therefore, in order to ascertain whether there are grounds for committing an accused person for trial, it is sufficient for the Magistrate to look at the evidence and the documents referred to in subsection (6) without looking at the answers given by the accused in his examination under Section 342. The very fact that accused person has been examined under Section 342 pre-supposes that some circumstances appear in the evidence against the accused and in cases coming under Section207-A in the evidence or documents. The fact that the prosecution evidence discloses' some circumstances of an incriminating nature against the accused which if believed would be sufficient to warrant his conviction means that the prosecution evidence and the documents disclose some grounds for committing the accused person for trial. That is why there is no reference to the statement of the accused in the last four lines of Sub-section (6) of Section 207-A. It may thus mean that even the explanation given by the accused cannot be considered by the Magistrate when acting under Sub-section (6) of Section 207-A. If the prosecution evidence and the documents referred to disclose some grounds, then the Magistrate should commit the accused to the Sessions Court for trial and leave it to the Sessions Court to consider the explanation of the accused. But whatever that may be, this is not a case in which it can be said that the prosecution evidence and the documents referred to do not disclose any grounds for committing the accused persons for trial. According to the evidence and the documents, the voices of accused Nos. 2 and 3 were heard along with those of the deceased at the time of his death and at the time of the alleged offence. Therefore, it cannot be said that there is no ground for committing the accused persons for trial.

16. The learned Magistrate has held that in committal proceedings the Court can and should weigh the evidence to find out if there is evidence worthy, of credit to commit the accused for trial to the Sessions Court. He relied mainly on the old decisions given prior to the amendment of the Code of Criminal Procedure in 1956. Those cases rested on the words of Section 209 which contained the words 'sufficient grounds'. Those cases are good law if applied to the present Section 209 which also contains the words 'sufficient grounds'. But with great respect it is difficult to hold that those cases are good law on the interpretation of Section 207-A. The learned counsel for the opponents relies on the following observations of Chagla. C. J., in Arunachalam Swami v. Bombay State, 58 Bom LR 628 at p. 635 : ( (S) AIR 1956 Bom 695 at p. 699):-

'..... Now, in all orders of commitment onemust always bear in mind the general principles applying to these orders. The Magistrate is not supposed to weigh evidence and to decide as to whether the accused is innocent or guilty. That is the function of the jury when the case goes to the Sessions. It is not even his duty to consider whether a conviction is probable. Even that is the function of the jury and the Magistrate is trespassing upon the province of the jury if he were to debate in his mind whether a conviction is probable. All that he has to consider is whether on the evidence led a conviction is possible; whether reasonable persons like the persons who constitute the jury are likely to take the view on the evidence led that the accused was guilty. It is true that we have laid down that the Magistrate should not waste the time of the jury if the evidence in his opinion is so worthless that no reasonable men would accept it as true. But subject to that the Magistrate should not waste the time of the jury if the evidence in his opinion is -- touse a well known English legal expression -- sufficient evidence to go to the jury. ....'

The learned Judge uses the words 'sufficient evidence to go to the jury'. But I am afraid that the use of the word 'sufficient' is not justified by the wording of Sub-section (6) of Section 207-A. The learned trial Magistrate has observed as follows in his judgment:-

'It is my considered view after the most careful consideration of the evidence and ail the documents in this case that it would be not possible for any Tribunal, a Judge, or a jury, to believe in the evidence of the witnesses, Jaga Anop, Gulab Morai and Vithal Zina. It is also my considera-ed view that it will not be possible for any Court or any Jury to disbelieve in the version of the incident given by the accused. I therefore see no ground to commit the accused for trial to the Sessions Court and unnecessarily waste the precious time of that Court.'

The learned Sessions Judge has observed as follows in his judgment:-

'...... the deceased must have climbed the-mango-tree and the accused Nos. 2 and 3 must have heard some noise and accosted him. They might have seen some scuffle when the deceased might have given the blow of Dharia to accused No. 3 as stated by the accused No. 2 and it is possible that the deceased might have aimed another blow and the accused No. 2 to save him might have given the stick blow to the deceased on the head. So the statement of the accused No. 2 is not in any way inconsistent with the circumstances and the probabilities of the case but assuming that that statement is not true, even then, as I said before, a part of the statement that he gave a blow of stick to the deceased cannot be used against him. Except that there is absolutely no evidence which would justify any Judge or Jury to conclude about the suit of the accused .....

So, the learned Magistrate was right in holding that the conviction was not at all possible in the case and no Judge or Jury would have convicted the accused on the evidence in this case; and he had rightly discharged the accused under Section 207-A (6) of the Criminal Procedure Code. Hence this revision application is dismissed.'

17. When the prosecution evidence discloses circumstances against the accused and when the circumstances themselves are admitted by the accused 2 and 3, no Court can say that there are no grounds for committing the accused persons to the Sessions Court for trial. Under the present Section 207-A, Sub-section (6), it is not open to a committing Magistrate to appreciate the evidence if there is something in the prosecution evidence, that would amount to there being some grounds for committing the accused to the Sessions Court for trial. The question of appreciation is left by Section 207-A to the Sessions Court. The whole object of Section 207-A is to give a secondary importance to committal inquiries. Before the amendment committal inquiries had some importance. But now the committal inquiries have lost much of their importance because the whole evidence is not taken. The object of the committal inquiries is more or less to give a notice to the ac-cused of the evidence against him. The committal inquiries have been reduced almost to a mere for mality except when there are no grounds for committing the accused person for trial.

18. It is next contended that the prosecution must prove its case before the accused is called upon to plead. The prosecution must prove the commission of a criminal act and also the necessary intention. If the commission of the criminal act is admitted by accused No. 2 and the presence of accused No. 3 near accused No. 2 at the time of the criminal act is also admitted, the difficult question of common intention is not a master to be decided by the committal Magistrate in cases falling under Section 207-A. In such a case once a criminal act appears to have been committed, as provided in illustration (a) to Section 106, intention is ordinarily to be presumed. Illustration (a) to Section 106 reads as follows:-

'(a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him.'

Ordinarily intention is to be presumed from the reasonable consequences of the acts done. It is true that this presumption is rebuttable and may not sometimes be drawn. But ordinarily it is to be drawn. Therefore, when the prosecution proves the commission of the criminal act by accused persons there is very little left for the prosecution to prove its case and in such a case when the commission of the criminal act by the accused is proved, it cannot be said that there are no grounds for committing the accused persons to the Sessions Court for trial. It may be that in some cases there may be no 'sufficient ground' for committing the accused persons to the Sessions Court for trial. But it cannot be said that when the commission of the criminal act is proved, there are no grounds for committing the accused persons to the Sessions Court for trial. With great respect, therefore, I am of opinion that when the commission of the criminal act appears from the evidence and the documents the accused cannot be discharged under Section 207-A even if he can be discharged under Section 209. In such a case if the case is on a police report, accused cannot be discharged; but if the case is on a private complaint, the accused may in some cases be discharged.

19. It is next contended by the learned counsel that on the prosecution evidence itself, the theory of self-defence is proved. Even if that is so, that is for the Sessions Court to decide and not for the Magistrate to decide. In such a case if the commission of the criminal act is proved by the prosecution evidence, it cannot be said that there are no grounds, for committing the accused person to the Sessions Court for trial.

20. The order of discharge passed by the lower Court is set aside and the learned Magistrate is directed to commit accused Nos. 2 and 3 to the Sessions Court for trial. The order of discharge so far as accused No. 1 is concerned is confirmed.

21. The observations made by me do not deal with the appreciation of evidence or the weight to be attached to the prosecution evidence or thedefence case and the Sessions Court is entitled toarrive at its own decision in the matter.


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