A Magistrate is not precluded from accepting a plea based on an exception, provided there are satisfactory and reliable materials on which he can base his judgment as to whether there is sufficient ground for proceeding on the complaint or not.

Judgment

S. K. DAS, J. : This is an unfortunate case in which a complaint filed in the Court of the Presidency Magistrate, Bombay on 31-10-1956, by one Dattatraya Dulaji Ghadigaonkar, respondent herein, has to be finally disposed of in the year 1960 in circumstances which we shall state at once. On 3-6-1956, in the evening, a public meeting was held at a place called Chowpatty in Bombay which was to be addressed by the Prime Minister of India. The meeting was called in connection with an agitation which was then going on for the reorganisation of the State of Bombay. There was considerable disturbance at the meeting as a result whereof it had to be dispersed, and large crowds of people began to wander about in various localities around Chowpatty including an area round charni Road Station. The case of the complaining respondent was that at about 8 p.m., his younger brother Sitaram was crossing Queen s Road near a building called Laud Mansion. At that time there was a large crowd on the road and members of that crowd were stopping vehicles passing by that road. One taxi cab which had come from the direction of the Opera House and was going towards Churchgate was already stopped. Sitaram was then accompanied by Sashikant Kamtekar and Nand Kumar Vagal. When these three had crossed the road, they heard the reports of revolver shots and on looking back they found that a person called Bhayya was injured by one of the shots and fell down on the footpath. Sitaram and his friends went to help Bhayya; at this stage, another shot was fired by one of the occupants of a blue car which was near the taxi cab referred to earlier, Sitaram was hit on his chest, and the bullet having entered the chest cavity injured the right ventricle of the heart. Sitaram was removed to the G. T. Hospital but died before medical assistance could be given. Dr. H. S. Mehta, Police Surgeon, who made a post-mortem examination of the dead body opined that Sitaram died of shock and haemorrhage as a result of the gun shot wound he had received. The doctor further said that the charring round the wound indicated that the shot had been fired from a distance of 2 to 18 inches only.

2. The case of the respondent was that Vadilal Panchal, appellant before us, fired the shot from the blue car. The occupants of the car were K. K. Shah, advocate, his son Vinay, and one Ratilal Sanghvi on the back seat, and the appellant and chauffeur Mohiuddin on the front seat. K. K. Shah was mentioned in the complaint as one of the complainant s witnesses. He was examined and said that after the meeting was over, he and his companions were returning in his car to his house. Because of the trouble, the car travelled by a longer route and when it reached Queen s Road, there were large crowds on that road who were pelting stones, shouting slogans and committing other acts of violence: a public bus was burnt, and a taxi cab which was proceeding ahead of K. K. Shah s car was stopped. Some three or four hundred people surrounded his car, pelted stones and shouted "maro, maro". Some of them attempted to drag out Ratilal Sanghvi who occupied a corner seat; some caught hold of the appellant by his neck and hair and wanted to drag him out of the car. The appellant then opened fire with his revolver. The rioters then held back, and the way was clear for the car to pass. The car then drove away and after some time K. K. Shah and the appellant went to Gamdevi Police Station where the latter made a report of what had happened. The appellant was sent to Nair Hospital where he was medically treated and allowed to go.

3. The Coroner of Bombay held an inquest into the death of Sitaram at which K. K. Shah, Sashikant Kamtekar and several other witnesses were examined. The Coroner s Jury returned a verdict that Sitaram died of the gunshot wound caused by a bullet fired by the appellant "under such circumstances as would render the firing to be in the exercise of the right of private defence and as such justified"