Salman Salim Khan-Drunken Driving Case-Criminal Revision Judgement

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    CRA 220/13 1

    IN THE COURT OF SESSIONS GREATER BOMBAY.

    CRIMINAL REVISION APPLICATION No.220 of 2013IN

    C.C.No.490/PS of 2005

    Salman Salim KhanAge-47 years, Occupation: ActorGalaxy Apartments, B.J. Road,Bandstand, Bandra(West),Mumbai 400 050. ..... Applicant/Accused.

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

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

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

    DATED : 24th June, 2013

    ORAL ORDER

    1. This Revision Application has been directed by the

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

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

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

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

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

    Sessions Case No.240/2013.

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

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

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

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    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

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    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 Magistrates 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 andhaving expressed almost a conclusive opinion as to thenature of offence, we would not have interfered with theimpugned order of the High Court because, as statedabove,neither of the sides would have been in any mannerprejudiced in the trial by framing of a charge either undersection 304A or section 304 Part II, IPC except for the factthat the forum trying the charge might have been different,

    which by itself, in our opinion, would not cause anyprejudice. This is because at any stage of the trial it would

    have been open to the concerned court to have altered thecharge appropriately depending on the material that isbrought before it in the form of evidence. But now by virtueof the impugned judgment of the High Court even if in thecourse of the trial the Magistrate were to come to theconclusion that there is sufficient material to charge therespondent for a more serious offence than the onepunishable under section 304A, it will not be possible for itto pass appropriate order. To that extent the prosecution casegets preempted.

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

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    Court entertaining a petition under section 482 of the Codeto quash charges framed by the trial court, same cannot bedone by weighing the correctness or sufficiency of evidence.In a case praying for quashing of the charge, the principle tobe adopted by the High Court should be that if the entireevidence produced by the prosecution is to be believed,

    would it constitute an offence or not. The truthfulness, thesufficiency and acceptability of the material produced at thetime of framing of charge can be done only at the stage oftrial. By relying upon the decisions of the apex Court most of

    which were with reference to appeals arising out ofconvictions, we think the High Court was not justified in thiscase in giving a finding as to the non-existence of material toframe a charge for an offence punishable under section 304Part II, IPC, therefore, so far as the finding given by the HighCourt is concerned, we are satisfied that it is too premature afinding and ought not to have been given at this stage. At thesame time we are also in agreement with the arguments oflearned counsel for the respondents that even the SessionsCourt ought not to have expressed its views in such certainterms which indicates that the Sessions Court had taken afinal decision in regard to the material to establish a chargepunishable under section 304 Part. Therefore, we think itappropriate that the findings in regard to the sufficiency orotherwise of the material to frame a charge punishableunder section 304, Part II, IPC of both the courts belowshould be set aside and it should be left to be decided by thecourt trying the offence to alter or modify any such charge atan appropriate stage based on material produced by way ofevidence.The next question which then requires our consideration is

    whether in view of our above finding, the charge framed bythe Sessions Judge for an offence punishable under section304 Part II, IPC be sustained or one under section 304A ashas been done by the High Court, should be retained ?We have been informed that pursuant to the judgment of theHigh Court, the Metropolitan Magistrate, 12th Court,Bandra, Mumbai, has already framed fresh charges undersection 304A and other provisions mentioned hereinaboveand the trial has commenced. Since any interference at thisstage would not further the cause of justice and would leadonly to delay the course of justice, we think it appropriatethat the proceedings before the said Magistrates Courtshould continue and the trial should proceed on the basis ofthe charges framed by it but we make it very clear that at

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

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

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

    examine them. According to the ld.APP 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 ;

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    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 self-

    contradictory evidence in respect of collection of blood sample;

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

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

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

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

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

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

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

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

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

    with knowledge;

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

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    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;

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

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

    and

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    15. In the fourth decision ofSuresh 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

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    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 anyinquiry into an offence or a trial before a Magistrate, itappears to him at any stage of the proceedings beforesigning judgment that the case is one which ought to be triedby the Court of Session, he shall commit it to that Courtunder 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

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    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 birds 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 StateV. 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 casestried under the Code. It corresponds to Section 347 of theold Code except that the words "or High Court" in Section347 are deleted in Section 323. The Section confers ingeneral terms a wide and comprehensive power on aMagistrate to commit a case to the Court of Session at anystage of the enquiry or trial before signing the judgment ifonly 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 onewhich is exclusively triable by a Court of Session, theMagistrate has no alternative but to commit the case to aCourt of Session as required under Sec. 209, Cr. P. C. It isonly a case which appears to the Magistrate to be one whichought to be tried by the Court of Session that the Magistratecan act under this section The words "if it appears to him"contemplate the formulation of a judicial opinion. Thoughthe discretion to commit is wide under this section, thediscretion has to be exercised judicially and no hard and fast

    rule can be enunciated as to in what cases committal should

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    be made under this section and in what other cases it shouldnot be made. It all depends on the facts and circumstancesof 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 offenceis triable exclusively by it.When in a case instituted on apolice report or otherwise, the accused appears or is broughtbefore the Magistrate and it appears to the Magistrate thatthe offence is triable exclusively by the Court of Session, heshall

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

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

    (c) send to that Court the record of the case and thedocuments and articles, if any, which are to be produced inevidence ;

    (d) notify the Public Prosecutor of the commitment of thecase 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 terminologyif it appears as way back in the case ofSanjay 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 onlynarrow inspection hole and if he goes to the merit of the

    http://media/NAIR%20STENO//E:/Citations%2024%2003%202013/3%20in%201%20IPC%20CrPC%20Evidence%20Act/THE%20CODE%20OF%20CRIMINAL%20PROCEDURE,%201973.html#_ftn107
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    case even for a prima facie satisfaction that would frustrate Parliament's

    purpose in re-moulding S. 207-A (old code) into its present non-

    discretionary shape. The relevant observations are excerpted as under :-

    It is not open to the Committal Court to launch on aprocess of satisfying itself that a prima facie case has beenmade out on the merits. The jurisdiction once vested in theCommitting Magistrate under the earlier Code having beeneliminated now under the present code, to hold that he cango into the merits even for a prima facie satisfaction is tofrustrate Parliament's purpose in re-moulding S. 207-A (oldcode) into its present non-discretionary shape. Expeditionintended by this change will be-defeated successfully, if

    interpretatively it is held that a dress rehearsal of a trialbefore the Magistrate is in order. The narrow inspectionhole through which the Committee Magistrate has to look atthe case limits him merely to ascertain whether the case, asdisclosed by the police- report, appears to him to show anoffence triable solely by the Court of Session. If, by error, a

    wrong section of the Penal Code is quoted be may look intothat 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 theCommitting Magistrate has no judicial function to performunder the 1973 Code of Criminal Procedure. S. 209 of theCriminal Procedure Code 1973 obliges the Magistrate tocommit the case to the Court of Session when it appears tothe Magistrate that the offence is triable exclusively by the

    Court of Session. Therefore, the Magistrate has to besatisfied that an offence is prima facie disclosed and theoffence so disclosed is triable exclusively by the Court ofSession. If no offence is disclosed the Magistrate may refuseto take cognizance of the case or if the offence disclosed isone not triable exclusively by the Court of Session he mayproceed to deal with it under the other provisions of theCode. To that extent the Court of the CommittingMagistrate does discharge a judicial function.

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    23. 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 merepost office in the committal case and that the Magistratehas got certain discretionary powers which he can exerciseunder Section 209 of Cr. P.C. the question arises in this caseis to what extent this discretion can be exercised by theMagistrate. According to me that discretion cannot beextended to the level of appreciation of the materials andcome to a different conclusion. In other words, he cannotembark upon the task of evaluating the materials ordrawing his own inferences, other than materials disclosedto him. The limited discretion that Magistrate can exerciseis that in a case where from the records before him on theface of it, if he can come to the conclusion other thanprosecution alleged, he can exercise discretion and convertthe charge or discharge the accused. But this discretion asI observed earlier is travelling in a very narrow compass.His decision can be rested only on an appraisal of thematerials 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.

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    custody till the conclusion of the trial. The provisions ofClause (b) of Section 209, thus, vests the Magistrate with apower to authorise the detention of an accused in jailcustody during and until the conclusion of the trial whilecommitting him to stand his trial before the Sessions Court.In such a case even though all further proceedings are totake place before the Court of Session and no proceedingsare to take place before the Magistrate, the detention of theaccused 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 ofBheru 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 ofAjay Kumar

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

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

    Considering the specific provisions referred above, it isexpected 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 inflictedupon conviction.

    It is, thus, clear from the above provisions that the JudicialMagistrate, First Class is empowered to transfer the caseeither to the Court of Chief Judicial Magistrate or to theSessions Court. In a case ofShiv Dutt Salwan v. The State,(1984) 1 Crimes 470(2), the learned Judge observed thatSection 323 of the Cr.P.C. gives a wide discretion to theMagistrate which should be exercised judiciously and notupon a mere request of a party. He should have adequatereason for sending a person to stand trial before a Court ofSession for an offence which he could himself try. Thelearned Judge has considered various cases in which theconcurrent jurisdiction of the Judicial Magistrate as also ofthe Chief Judicial Magistrate to transfer the cases to thesuperior Court under particular circumstances, arediscussed.

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

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

    http://indiankanoon.org/doc/368732/http://indiankanoon.org/doc/368732/
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    "Having regard to the seriousness of the offence and publicimportance of the case, committal to a Court of Session isdirected."

    33. The terminology it appears also came up for interpretation

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

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

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

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

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

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

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

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

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

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

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

    made the distinction between forming the opinion and achieving the

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

    for committal and without making any 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 ofChhadamilal 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

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    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 reportedin 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 ofSections 207 to 209 Cr.P.C., mandate the Magistrate tocommit 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 triableby the Court of Sessions, in a case instituted by the police ismandatory. The scheme of the Code simply provides that theMagistrate can determine, whether the facts stated in the reportmake out an offence triable exclusively, by the Court of Sessions.Once he reaches the conclusion that the facts alleged in thereport, 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

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    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 strongsuspicion which leads the Court to think that there isground for presuming that the accused has committed anoffence, then it is not open to the court to say that there isno sufficient ground for proceeding against the accused. Thepresumption of the guilt of the accused which is to bedrawn at the initial stage is only for the purpose of decidingprima facie whether the Court should proceed with the trialor not. If the evidence which the prosecution proposes toadduce prove the guilt of the accused even if fully acceptedbefore it is challenged in cross-examination or rebutted bythe defence evidence, if any, cannot show that the accusedcommitted the offence, then there will be no sufficientground for proceeding with the trial

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

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

    Sessions even before the 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

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    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 cross-

    examination of the prosecution witnesses would have been undertaken and

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

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

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    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

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    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 ofAjay 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 ofHem 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 the instant case. The

    relevant observations are as under :

    The Court at the stage of framing charge exercises alimited jurisdiction. It would only have to see as to whethera prima facie case has been made out. Whether a case ofprobable conviction for commission of an offence has beenmade out on the basis of the materials found duringinvestigation should be the concern of the Court. It, at thatstage, would not delve deep into the matter for the purposeof appreciation of evidence. It would ordinarily not consideras to whether the accused would be able to establish hisdefence, if any.

    Scope of Revision

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

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

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

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

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    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 notsupposed to reassess the evidence unless it is shown that theapproach of the courts below was perverse or that someillegality is committed. There are concurrent findings of thecourts below. Bearing in mind this, the revision has to bedecided.

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

    Nagpur Bench in the case ofSmt.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 onlylook 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 wascommitted by the trial court. In the absence of any legalinfirmity either in the procedure or in the conduct of the

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    trial, there was no justification for the High Court tointerfere in exercise of its revisional jurisdiction. It hasrepeatedly been held that the High Court should not re-appreciate the evidence to reach a finding different from thetrial court. In the absence of manifest illegality resulting ingrave miscarriage of justice, exercise of revisional

    jurisdiction in such cases is not warranted.

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

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

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

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

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

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

    Jaiprakash Badrinarayan Rathi and Ors., it was held in para-19 as under :-

    19. Having said so, it is true that the jurisdiction of thisCourt while entertaining criminal revision is limited which isrecognised by this Court and also by the Apex Court innumber of decisions. Readily available decision is in the caseof C.P.Fernandes v. Union territory of Goa, Daman & Diu,AIR

    1977 SC 135, wherein the Apex Court has ruled that theCourt should not interfere with the trial Court view unlessfound to be unreasonable or perverse. If two views arepossible on the basis of evidence on record, the higher Courtshould not disturb the findings of the trial Court. The sameprinciple is reiterated in the case of Varghese Thomas v.State of Kerala, 1977 SC 701.20. This Court not being a Court of appeal cannotreappreciate and substitute its view in exercise of revisional

    jurisdiction. Revisional jurisdiction is not only limited in

    scope but discretionary. The Court interferes in therevisional jurisdiction only in exceptional cases of flagrantmiscarriage of justice as held by Apex Court in the case ofState of Rajasthan v. Gurucharandas Chaddha, AIR 1979 SC1895.No such case is made out by the applicant.21. In the light of the law laid down by the ApexCourt, if one turns to the evidence, it is not possible to cometo the conclusion that the impugned order is perverse orthat the Court below has committed any illegality inappreciating the evidence so as to misdirect itself to acquit

    accused persons. In my opinion, the evidence has been

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    rightly appreciated by the Court below. The view taken is areasonable and possible view, which can very well besustained on the basis of evidence available on record. Inthe above view of the matter, no case is made out tointerfere with the impugned order.

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

    jurisdiction of monitoring jurisdiction to find out whether subordinate court

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

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

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

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

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

    and 'revision' was made. It was held in paras-10 & 11 as under :-

    10. It appears that learned single Judge has equatedappellate powers with revisional powers, and that the coredifference between an appeal and a revision has beenoverlooked. It is trite legal position that appellate

    jurisdiction is co-extensive with original Court's jurisdictionas for appraisal and appreciation of evidence and reachingfindings on facts and appellate Court is free to reach its ownconclusion on evidence untrammelled by any findingentered by the trial Court. Revisional powers on the otherhand belong to supervisory jurisdiction of a superior court.While exercising revisional powers the Court has to confineto the legality and propriety of the findings and also

    whether the subordinate Court has kept itself within thebounds of its jurisdiction including the question whetherthe Court has failed to exercise the jurisdiction vested in it.Though the difference between the two jurisdictions issubtle, it is quite real and has now become well recognisedin legal provinces.

    11. In State of Kerala v. K. M. Charia Abdullah & Co., AIR1965 SC 1585, this Court has highlighted the differencebetween the two jurisdictions in the following words (para5) :"There is an essential distinction between an appeal and arevision. The distinction is based on the differences implicitin the said two expressions. An appeal is a continuation of

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    the proceedings; in effect the entire proceedings are beforethe appellate authority and it has power to review theevidence subject to the statutory limitations prescribed. Butin the case of a revision, whatever powers the revisionalauthority may or may not have, it has not the power toreview the evidence unless the statute expressly confers onit that power." (Emphasis supplied)

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

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

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

    applicant/accused is wholly misconceived. In that case PW-8 was an

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

    case, the star witness PW-1 Ravindra Patil is a staff member from the police

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

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

    style him as an interested witness.

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

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

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

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

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

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

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

    culprit or the scenario.

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

    reliance on the testimony of PW-1 Ravindra Patil cannot be faulted. Again it

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

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

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

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

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

    (1973) 4 SCC 23 disbelieved evidence of PW-8 not only because he was the

    close relative or interested witness but because his evidence is fully

    discrepant.

    51. No doubt it is admitted by the star witness PW-1 Ravindra Patil

    in the cross-examination that the fact that the accused was in drunken

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

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

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

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

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

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

    this court.

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

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

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

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

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

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

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

    pronouncements meticulous enquiry in respect of the matter under challenge,

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

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

    because he has not considered the effect of cross-examination of PW-1

    Ravindra Patil.

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

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

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

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

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

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

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

    is during the few moments immediately preceding the accident. Para-6 which

    is reproduced here would make this position very much clear.

    6. In cases of road accidents by fast moving vehicles it isordinarily difficult to find witnesses who would be in a positionto affirm positively the sequence of vital events during the few

    moments immediately preceding the actual accident, from whichits true cause can be ascertained. When accidents take place onthe road, people using the road or who may happen to be in closevicinity would normally be busy in their own pre-occupations andin the normal course their attention would be attracted only by thenoise or the disturbance caused by the actual impact resultingfrom the accident itself. It is only then that they would looktowards the direction of the noise and see what had happened. Itis seldom - and it is only a matter of co-incidence - that a personmay already be looking in the direction of the accident and mayfor that reason be in a position to see and later describe the

    sequence of events in which the accident occurred. At times itmay also happen that after casually witnessing the occurrencethose persons may feel disinclined to take any further interest inthe matter, whatever be the reason for this disinclination. If,however, they do feel interested in going to the spot in theircuriosity to know some thing more, then what they may happento see there, would lead them to form some opinion or impressionas to what in all likelihood must have led to the accident.Evidence of such persons, therefore, requires close scrutiny forfinding out what they actually saw and what may be the result oftheir imaginative inference. Apart from the eye-witnesses, the

    only person who can be considered to be truly capable ofsatisfactorily explaining as to the circumstances leading toaccidents like the present is the driver himself or in certaincircumstances to some extent the person who is injured. In thepresent case the person who died in the accident is obviously notavailable for giving evidence. The bhaiya (Harbansingh) has alsonot been produced as a witness. Indeed, failure to produce him inthis case has been the principal ground of attack by ShriPardiwala and he has questioned the bona fides and the fairnessof the prosecution as also the trustworthiness of the version givenby the other witnesses.

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    Therefore we can visualize the situation and fetters with which

    the prosecution was surmounted and therefore it is extremely difficult to

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

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

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

    one or other reason.

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

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

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

    witness Ravindra Patil to the Mid-Daynewspaper on 30/9/2002 stating that

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    this juncture ex-facie to my mind whatever statements might have been given

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

    and cannot be considered.

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

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

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

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

    Media Interview. The relevant observations are as under :-

    We are not prepared to attach any weight or credibility to

    the statements made in the course of such interview pre-arranged by the police. The police officials in their over-zealousness arranged for a media interview which hasevoked serious comments from the counsel about themanner in which publicity was sought to be giventhereby. We think that the wrong step taken by thepolice should not enure to the benefit or detriment ofeither the prosecution or the accused.

    Therefore according to the Hon'ble Apex Court the said

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

    of the accused or vice-versa. The same analogy a fortiori applies to the instant

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

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

    trial.

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

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

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

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

    is not warranted.

    58. The ld. Magistrate has considered the evidence of PW-1

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    abode in the said mishap and four persons were injured.

    59. The ld. Magistrate has also considered the evidence of PW-9

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

    purchased a beer cocktail of Bacardi wine from his shop.

    60. The ld.Magistrate has also considered the evidence of PW-14

    Dattatray K. Balshankar, Asst. C.A. stating that in the report Exh. P-20 that

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

    considered the evidence of PW-1 Ravindra Patil showing that accused was

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

    area.

    61. The ld. Magistrate also considered the evidence of PW-2 Ram

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

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

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

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

    accused turned down the request of Ravindra Patil PW-1 to drive the car at

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

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

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

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

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

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

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

    his thought to the evidence of PW-12 Rajendra Sadashiv, the Motor Vehicle

    Inspector of R.T.O. as well as PW-15 Dr. Shashikant J. Pawar, PW-16 Vijay M.

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

    examination, PW-3 Sanba Kannappa Gowda, the spot panch and PW-5 Mohd

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

    earlier the report of the C.A. Exh. P-20 that Ethyl alcohol was found in the

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

    applicant/accused has made bonafide attempt to eclipse this report inter-alia

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

    evidence of PW-1 Ravindra Patil as well as Hotel Manager PW-8 Rizwan Ali is

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

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

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

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

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

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

    case as indicated above as per the various judicial pronouncements declared

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

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

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

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

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

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

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

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

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

    words, there is no hitch in placing reliance on the evidence of PW-1 Ravindra

    Patil at this juncture. Having applied the same, the conclusionwith the

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

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

    regard to the question of knowledge contemplated in S. 304 Part-II of the

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

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

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

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

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

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

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

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

    the facets.

    30. On 12th March 2007 the accused was

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    charged under section 304 (II) of IPC for causing death ofseven persons who were sleeping on the footpath at CarterRoad, Bandra (West) Mumbai by rash and negligent driving

    with the knowledge that they were sleeping on the footpath.He was further charged under section 338 of IPC for drivingthe vehicle rashly and in a negligent manner and therebycausing grievous hurt to 8 persons, who were sleeping onthe footpath. On these two charges, the accused was put totrial and the prosecution had led its evidence to prove thesaid two charges. It needs to be mentioned that the FIRbeing FIR No.436 of 2006 dated 12th November 2006 wasregistered under section 304 (II), 279, 337, 338, 336, and427 IPC read with section 185 of the Motor Vehicles Act,read with section 66(1)(b) of the Bombay Prohibition Act.However, the charge was framed only for two offences

    viz u/s 304(II) and 338 and neither the accused nor theState questioned the correctness of this order. The State hasnot raised any challenge on this ground even in the presentappeals.

    31. Under section 304(II), whoever commits culpablehomicide not amounting to murder can be punished withimprisonment of either description for a term which mayextend to 10 years or with fine or with both, if the act is done

    with knowledge that it is likely to cause death but withoutany intention to cause death or to cause such bodily injury, asis likely to cause death. A bare reading of this provisionshows that there are three essential ingredients of the offencepunishable under section 304(II); (a) accused must commit aculpable homicide not amounting to murder, (b) the act isdone with knowledge that it is likely to cause death and(c)but without any intention to cause death.32. Section 299 of IPC defines culpable homicide as whoevercauses death by doing an act with the intention of causingdeath or with an intention of causing such bodily injury, as islikely to cause death or with the knowledge that it is likely bysuch act to cause death.

    Illustration

    (b) to section 299 indicates the kind of cases, which will fallwithin the ambit of section 299. A culpable homicide which isnot a murder within the contemplation of the provisions ofsection 300 can alone fall within the scope of section 304(II).`Knowledge' and `intention' are the deciphering and

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    distinguishing factors. If an act is done with knowledge butwithout intention, then it would fall under section 304(II),but if there is intention for committing offence of culpablehomicide, it would take it beyond the purview of thisprovision. The provision of section 304 falls into twodifferent classes; one where offence is committed withintention of causing death or bodily injury as is likely tocause death providing life imprisonment or imprisonment fora term which may extend to 10 years with fine. The otherpart is relatable to the act which is done with knowledge thatit is likely to cause death but where the element of intentionis absent. There it prescribes different punishment of lessergravity. The act done with knowledge of the end result beingof the kind where the doer had reason to believe that theactus reus would result into an offence, the knowledge

    would be attributable to the offender. The court may, in agiven set of facts, attribute to the intoxicated man sameknowledge as if he was quite sober. This may not be quitetrue so far as the intention is concerned. `Knowledge' is anexpression of wide connotation and is capable of variedinterpretation in the context of the facts and circumstances ofa given case. While doing an act, knowledge of consequence

    would be attributable to the accused, if it falls within thenormal behaviour of the person of common prudence. It isdifficult to state with certainty any essential constituent of`knowledge' but this aspect can safely be examined in thelight of various judicial pronouncements and settled canonsof criminal jurisprudence.

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

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

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

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    possesses or has custody of, or to which he is entitled, but nofurther....2) `Knowledge' and `actual knowledge' have sometimes beenheld to be synonymous. The `knowledge' as used in acontract by which a fidelity and causality company bounditself to make good (to a ban) such pecuniary loss as thelatter might sustain by reason of the fraud or dishonesty of anamed employee in connection with his duties, providingthat the contract would be void if the bank continued in itsservice an employee of whose untrustworthiness they hadknowledge, means actual knowledge and not constructive.3) Knowledge and Belief-` knowledge' is nothing more thanmen's firm belief, and is distinguished from `belief' in thatthe latter includes things which do not make a very deepimpression on the memory., The difference is ordinarilymerely in degree.4) The meaning of the word `belief' and `knowledge', asdefined by lexicographers, will show that there is a distinctand well defined difference between them. `Believe' isdefined by Webster to mean to exercise trust or confidence,and by the Century Dictionary, to exercise belief in, to beperused upon evidence, arguments, and deductions, or byother circumstances other than personal knowledge.`Knowledge' , according to Webster, is the act or state ofknowing , clear perception of fact, that which is or may beknown. According to the Century Dictionary it meansacquaintance with things ascertained or ascertainable,specific information.5)Knowledge of the law- `The knowledge of the law with

    which every man is charged includes a knowledge of theconstituent facts which make the law. That the Legislatureenacted a certain law is a fact, but a knowledge of the lawimputed to every man comprises a knowledge of that fact.That a certain law is valid or void is another fact, but everyman is presumed to know whether it is valid or void, else hecould not know the law.(Words and Phrases).

    35. In a given circumstance `knowledge' may be construedquite differently from the expression `knowing'. Knowledgeis of a lesser degree while `knowing' is of a definiteconnotation and it must be established that the offenderknew about it. Knowledge has also been explained in the

    Judicial Dictionary byK.J. Aiyar's as under:

    Knowledge- A clear and certain perception of that which

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

    jury.

    38. The meaning of word `knowledge', as given in TheNew Oxford Dictionary of English can also be referredfor understanding the expression in commonparlance:

    Knowledge - facts, information and skills acquired bya person through experience or education, the

    theoretical or practical understanding of asubject, a thirst for knowledge her considerableknowledge of antique, What is known in a particularfield or in total, facts and information, thetransmission of knowledge

    39. `Knowledge' is again distinguishable from`reason to believe'.

    The term 'knowledge' contains higher degree whilethe term 'reason to believe' is a matter of lesser

    degree. In the first, the person has direct appeal tohis sense, while in the latter, there is sufficient causeto believe. While determining knowledge in relation toan event, the conduct of the person prior to and atthe time of the event is of relevant consideration.

    Actus reus requires that to constitute a crime theremust be a result brought about by human conduct, tophysical event, which law prohibits. When anindividual pursues or follows a line of conduct, he isexpected to produce certain results. Final events or

    results may be the outcome of different events or it

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    may be the result of a single act. If the end result isprohibited in law and if knowledge would have to beconstrued in the events of that case in relation to theevidence on record, the onus obviously is on theprosecution to prove the chain of acts even toattribute knowledge to the accused. The concept of`knowledge' has to be understood and applied to thefacts of a given case in complete contra-distinction tothe words `information' or `reasons to believe'. Theremay be difference of degree but that difference has tobe kept in mind, as that alone is the paramountconsideration even at the stage of framing chargewhether under sections 300, 302 or 304 and for thatmatter, 304 (I) or (II) of the IPC ( See Commentary by

    K.D. Gaur, 3rd edition on IPC and Commentary on IPCby Ratanlal Dhirajlal, 31st enlarged edition of2006).

    40. The Supreme Court and various High Courts havealso explained the word `knowledge'. To establishknowledge as an ingredient of criminal offence, therehas to be an affirmative or circumstantial evidence tobring home to the accused that he had knowledge ofhis acts. What a person of normal and ordinary

    prudence foresee by utilization of his sensedirectly, would be knowledge. In the case ofJairajvs State of Tamil Nadu, AIR 1976 SC 1519, theSupreme Court observed that knowledge of thelikelihood of the death of the person is contemplatedin law. Under section 304(II), if the result of thecriminal act is death of the victim and if each of theassailantspossesses the knowledge that death is the likelyconsequence of criminal act, then there is no reasonwhy section 34 should not be read with second part ofsection 304 to make each of such persons individuallyliable. (Afrahim Sheikh and ors. vs State of WestBengal(1964) 6 SCR 172).

    41. It will be useful to refer to the facts of a case titledState of Gujarat vs Haidarali Kalubhai, 1976 (1)SCC 889, which had not been argued during thecourse of the hearing of this case. In that case theaccused was charged for an offence under section304 II on the allegation that he had caused death of a

    police officer lying on a cot from where he was

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    thrown out. According to the accused and as per hisstatement under section 313 of the Code, when hewas reversing the vehicle, other truck was standingand while making his way to the narrow passage, theaccelerator got stuck and the truck then went in highspeed resulting in the accident. When the driverheard the noise, the cleaner of the truck told him thathe had stuck the truck against a cot and people wereinjured. That obviously was a case of negligent drivingsimpliciter, as is clear from the attendantcircumstances and no knowledge could beattributable to the accused in the facts andcircumstances of the case that his reversing thevehicle could cause fatal accident, unlike the facts of

    the present case where direct evidence as well asattendant circumstances clearly demonstrate thatsafely an inference of knowledge could be drawn.

    42. Another important aspect which has to beexamined is that all persons are deemed to be in theknowledge of law. What is prohibited in law and whatis an offence in law, are matters of public knowledge.Ignorance of law is not a valid defence when theperson is committing an act or omission, which would

    result in an act prohibited in law. Therefore, theoffender cannot take the plea of ignorance in thatregard. (Joti Prasad vs State of Haryana, AIR1993 SC 1167, and State of Maharashtra vsMayer Hans George, AIR 1965 SC 722. It will beuseful also to notice the judgment of theSupreme Court in the case ofJoti Prasad vsState of Haryana, AIR 1993 SC 1167, wherecounterfeit court fee stamps were recovered from thepossession of the accused, a licenced stamp vendor.

    The accused alleged that he had purchased thestamps from the treasury, but did not produceregister of such purchase. The accused also did notmake any effort to summon the record of the treasury.

    The court held that it would be proper to infer that theaccused has knowledge or reason to believe that thestamps were counterfeit and observed as under:

    Under the Indian Penal law, guilt in respect of almostall the offences is fastened either on the ground of`intention' or `knowledge' or `reason to believe'. We

    are now concerned with the expressions `knowledge'

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    and `reason to believe'. `Knowledge' is an awarenesson the part of the person concerned indicating hisstate of mind. `Reason to believe' is another facet ofthe state of mind. `Reason to believe' is not the samething as `suspicion' or `doubt' and mere seeing alsocannot be equated to believing, `Reason to believe' isa higher level of state of mind. Likewise`knowledge' will be slightly on higher planethan `reason to believe'. A person can besupposed to know where there is a direct appeal tohis senses and a person is presumed to have a reasonto believe if he has sufficient cause to believe thesame. Section 26. IPC explains the meaning of thewords `reason to believe' thus:

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

    In substance what it means is that a person musthave reason to believe if the circumstances are suchthat a reasonable man would, by probable reasoning,conclude or infer regarding the nature of the thingconcerned. Such circumstances need not necessarily

    be capable of absolute conviction or inference; but itis sufficient if the circumstances are such creating acause to believe by chain of probable reasoningleading to the conclusion or inference about thenature of the thing. These two requirements i.e. knowledge and reason to believe have to bededuced from various circumstances in the case. Inthe context of the circumstances obtaining in theinstant case namely the the appellant admittedly wasa licenced stamp vendor and he was found inpossession of counterfeit stamps, the explanation ofaccused also becomes relevant and important inassessing and appreciation whether he had suchknowledge or reason to believe that the stamps werecounterfeited. Admittedly he used to purchase stampsfrom the treasury and all s