IN THE COURT OF SESSIONS GREATER BOMBAY. CRIMINAL REVISION APPLICATION No.220 of 2013 IN C.C.No.490/PS of 2005

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1 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 Khan Age 47 years, Occupation: Actor Galaxy Apartments, B.J. Road, Bandstand, Bandra(West), Mumbai V/s. The State of Maharashtra Through Senior Inspector of Police Bandra Police Station... Applicant/Accused.... 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/ 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

2 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

3 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

4 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 non existence of material to frame a charge for an offence punishable under section 304 Part II, IPC, therefore, so far as the finding given by the High Court is concerned, we are satisfied that it is too premature a finding and ought not to have been given at this stage. At the same time we are also in agreement with the arguments of learned counsel for the respondents that even the Sessions Court ought not to have expressed its views in such certain terms which indicates that the Sessions Court had taken a final decision in regard to the material to establish a charge punishable under section 304 Part. 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

5 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 inter alia 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 PW 1 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, PW 14 Dattatray Balashankar (Asst. Chemical Analyzer), PW 9 Rizwan Ali a hotel manager who stated that applicant/accused purchased a beer cocktail and Barawardi wine from his hotel and PW 2 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.

6 CRA 220/ 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 PW 1 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 vis a vis full fledged trial and therefore in respect of the present Revision, it is unnecessary excerpt as to what she has addressed to the court. Submissions 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 ;

7 CRA 220/13 7 a) the Ld. Magistrate failed to appreciate that no prima facie case has been made out much less vis a vis 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 pre condition and the expression evidence,employed by the Apex Court does not alone mean only examination in chief but as well the cross examination and the defence evidence; c) The Ld. Magistrate only erringly considered the evidence of PW 1 Ravindra Patil, the complainant, a police personnel without considering the contradictions appearing in his cross examination; d) The Ld. Magistrate has also not considered the selfcontradictory 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 PW 1 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

8 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 'Mid Day' 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;

9 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 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

10 CRA 220/13 10 eye witness PW 8. 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 PW 8 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

11 CRA 220/13 11 view would be decisive inter alia 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 mini trial, roving enquiry or threadbare analysis of the evidence on record or it should not appear that he is holding a mini trial. 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 para 7 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

12 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 para 2 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

13 CRA 220/13 13 case even for a prima facie satisfaction that would frustrate Parliament's purpose in re moulding S. 207 A (old code) into its present nondiscretionary 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 re moulding S. 207 A (old code) into its present non discretionary shape. Expedition intended by this change will be defeated 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.

14 CRA 220/ So Apex Court regarded this as judicial function. S.209 of the code lays down that if the Magistrate is of the ex facie 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 hair splitting 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.

15 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 case law 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 self contained Code. The object of inquiry under this Section is two fold, 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

16 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

17 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 case law 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 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. 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 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

18 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 :

19 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 The Court also referred supra Bheru Singh V. State of Rajasthan & Ors reported in 2006 Cr.L.J 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 re appraisal 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

20 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 para 9 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 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. 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 cross examination or rebutted by the defence evidence cannot show that the accused committed the offence then

21 CRA 220/13 21 there will not be sufficient ground for proceeding with the trial. The relevant para 19 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 cross examination 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 REASONS 36. 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 cross examination or rebuttal evidence by the defence, the Magistrate is not bound to commit the case to the Court of Sessions and vice versa. 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 cross examination of Ravindra Patil PW 1 and PW 14 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

22 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 cross examination 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 crossexamination 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

23 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

24 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 sine qua non. 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 cross examination 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 principle wise would aptly apply to relevant observations are as under : the instant case. The 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 SCC 568. The Court over ruled the decision in Satish Mehra v. Delhi Administration (Manu/SC/1580/1996) holding that the

25 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 re appreciate 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