1981 Supreme(Bom) 24

IN THE HIGH COURT OF BOMBAY
R.S. Bhonsale, J.
Dattatraya Narayan Samant (Dr.) & others .... Petitioners.
Versus
State of Maharashtra.... Respondents.
Criminal Application No. 1764 of 1980, decided on 22-1-1981.
Advocate appeared :
Rajni Patel with D.N. Canteenwalla, for petitioners.
S.M. Gupte, P.P., for respondent-State.
P.R. Vakil, S.P.P., with Miss Amina Nakavi, Additional Special Public Prosecutors.

Headnote:(A)Indian Penal Code, 1860, Secs. 120-B, 307 & 115---Code of Criminal Procedure, 1973, Secs. 227, 228 & 482---Constitution of India, Art. 227---Framing of charge against petitioners---Order of Additional Sessions Judge---Whether there are sufficient grounds for proceeding to frame charges---Alleged agreement between petitioners and accused No. 5---Whether order is justified by facts and circumstances of case---Held, no prima facie case of conspiracy against petitioners, accused Nos. 1 to 4 made out.

       Under the provisions of section 228 of the Code of Criminal Procedure, the Judge can frame charges after hearing the parties and after considering the records and documents, if he is of the opinion that there is ground for presuming that the accused had committed an offence which is triable either by the Chief Judicial Magistrate or by himself. In such a situation, he will frame in writing charges against the accused. The provisions of section 228 make no reference for recording the reasons in support of framing the charges. However, when this Court directed specifically to give speaking order reflecting and covering the rival contentions advanced by the respective Counsel before him on the question of framing charges against the accused persons, it would have been better if the learned Judge had given reasons in terms of the specific directions given by this Court. The failure on the part of the learned Additional Sessions Judge to give reasons has deprived this Court to know the reasons in support of framing of the charges in question. The requirement of giving reasons has been regarded as wholesome practice and the object of the provision which requires the Session Judge to record his reason is to enable the Superior Court to examine the correctness of the reason for which the Sessions Judge has held that there is or is not sufficient ground for proceeding against the accused. As held in A.I.R. 1977 S.C. 1489, in such situation The High Court is entitled to go into the reasons given by the Sessions Judge in support of his order and to determine for itself whether the order is justified by the facts and circumstances of the case. (Paras 9 & 10)

       (B)Indian Penal Code, 1860, Secs. 537 & 109---Abetment by accused Nos. 2, 3 and 4 of offences committed by accused No. 5---Suspicion---Held, there are sufficient grounds for proceeding further against accused Nos. 2, 3 and 4 for those offences and against accused No. 5. No sufficient grounds to proceed against accused No. 1 on charge of abetment.

       As far as the case of petitioners Nos. 2, 3 and 4 is concerned, it was stated that some references are to be found to overt act alleged to have been done by accused Nos. 2, 3 and 4. Pariera has stated that accused No. 4 used to boast that he would finish these people in no time. Accused No. 2 also used to say that Bhagwan Angane, Naval Sheth and Navroji were all ^^xkaMq**- In October 1978, in the presence of accused No. 2, Mungekar, accused No. 3, Prabhakar Sawant, accused No. 4, Anant Shinde and accused No. 5, Shankar Savardekar and Anant Shinde said, that they would finish Naval Sheth, Kersi and others whenever Dr. Samant would tell them to do so. Dr. Samant told them not to do anything till he told them to do. There is no doubt that this overt act if proved on the part of accused Nos. 2, 3 and 4, would furnish some kind of abetment to the act of accused No. 5. However, there was no prior agreement in pursuance of which this crime has been committed by accused No. 5, the charge of conspiracy against the petitioners cannot be sustained. As far as accused Nos. 2, 3 and 4 are concerned, the statements do indicate that some utterances or some overt acts such as handing over an envelope to accused No. 5, might enable the prosecution to draw an inference of abetment, even against accused Nos. 2, 3 and 4. However, as far as accused No. 1 Dr. Samant is concerned, there is no question of framing a charge even of abetment, on the materials placed. As held earlier, the offence of abetment cannot be inferred against accused No. 1, inasmuch as no overt act is alleged against him. (Paras 41 & 42)

       (C)Code of Criminal Procedure, 1973, Sec. 397---Order of framing charge---Whether an interlocutory or a final order---Held, order of framing charge is a final order and not an interlocutory order.

       This Court had an occasion to decide whether the order of framing of a charge was an interlocutory order within the meaning of section 397. In Criminal Revision Application No. 246 of 1979, decided by Gadgil and Mehta, JJ., the reference made by Pratap, J., was answered by the Division Bench holding that the order of framing a charge is not an interlocutory order within the meaning of section 397(2). In this judgment, the learned Judges had referred to certain decisions of the Supreme Court. After referring to all these cases, the final conclusion at which the Division Bench had arrived at was that an order of framing charge in not an interlocutory order. A.I.R. 1978 S.C. 47 and A.I.R. 1980 S.C. 962 foll. (Para 46)

       (D)Code of Criminal Procedure, 1973, Sec. 227 & Sec. 482---Framing of charges by Sessions Judge---Whether High Court is entitled to go into reasons given by Sessions Judge in support of his order---Scope of section 227---Held, object of provision which requires the Session Judge to record its reasons is to enable the superior Court to examine the correctness of the reasons for which the Sessions Judge has held that there is or is not sufficient ground for proceeding against the accused. High Court, therefore, is entitled to go into the reasons given by the Sessions Judge in support of his order and to determine for itself whether the order is justified by the facts and circumstances of the case. In the exercise of the wholesome power under section 482, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice required that the proceeding ought to be quashed. (Para 47)