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1997 Supreme(Bom) 466
IN THE HIGH COURT OF BOMBAY
A.V. Savant S. Radhakrishnan, JJ.
The State of Maharashtra ..... Appellant.
Versus
Philip Andrew D’Souza others ..... Respondents.
Criminal Revision Application No. 285 of 1991, decided on 3/4-9-1997.
Advocates appeared :
M.P. Galeria, P.P., for the State.
Desai, for the respondents.
Headnote:Sections 114,306 and 498-A-Criminal Procedure Code, Sections 209 and 378-Abatement of suicide-Magistrate discharging accused as no prima facie case made out-Validity-Offence under Section 306, IPC exclusively triable by Sessions Judge-Hence, Magistrate cannot take oral evidence or discharge accused-Only on basis of police report, Magistrate can consider prima facie of case--Held, thus, order of Magistrate quashed. The law in this behalf is settled by the decision of the Supreme Court in, Sanjay Gandhi v. Union of India and others, reported at AIR 1978 Supreme Court, pg. 514, in para 2 of the said decision, at page 514, the Supreme Court has made it clear that under the 1973 Code, the scheme of the provisions makes it clear that where the offence is triable exclusively by the Court of Sessions, the committing Magistrate in such a case has no power to discharge the accused, nor has he the power to take oral evidence, save where the specific provision like Section 306, Cr PC enjoins. Then, in para 3 of the judgment it has been observed that it is not open to the committal Court to launch on a process of satisfying itself that a prima facie case has been made out on the merits. The jurisdiction once vested in him under the earlier Code of 1898 has been eliminated under the Code of 1973. The Parliament brought about the change with a view to expediting the trials of criminal cases. The Supreme Court observed that the narrow inspection hole through which the Committing Magistrate has to look at the case limits him merely to ascertain whether the case, as disclosed by the police report, appears to the Magistrate to show an offence triable solely by the Court of Sessions. Assuming the facts as stated in the police report to be correct if, the offence is one which is triable exclusively by the Court of Sessions, the Magistrate has simply to commit the case for trial before the Court of Sessions. It is only if, by an error, a wrong section of the Penal Code is quoted that he may look into that aspect. It is then further observed that if, made up facts, unsupported by any material are reported by the police and a sessions offence is made to appear, it is perfectly open to the Sessions Court under Section 227 of the 1973 Code to discharge the accused.
2.This is a Revision Application filed by the State of Maharashtra challenging the order dated 8th of August 1991 passed by the learned Additional Chief Metropolitan Magistrate, 24th Court, Borivli, Bombay, discharging all the four respondents-accused in circumstances which, appear to us, to be rather unusual.
3.The 4th accused Cyril D'Souza is the husband of the deceased Anni Cyril D'Souza. The first accused Philip is the brother of the 4th accused Cyril, the 2nd accused Philomina is the sister of the 4th accused Cyril and the 3rd accused John is the husband of accused No. 2 Philomina. In respect of the incident which occurred on 10th June 1990, the First Information Report was lodged with the Malvani Police Station, Malad Sub-Division, Bombay under C.R. 163/90 on the basis of the dying declaration of the deceased Anni. It appears that there was a dispute between the deceased and her husband Cyril on the one hand and the other members of the family of Cyril viz. respondent Nos. 1 to 3. The dispute related to the property of Cyril and his family members. Pursuant to the said First Information Report, the police submitted a charge-sheet in the Court of the Metropolitan Magistrate, 24th Court, Borivli, wherein offences punishable under sections 498-A, 114 and 306 of the Indian Penal Code were disclosed. The charge-sheet was submitted on the 21st June 1990 and Criminal Case No. 706/P/91 was registered by the learned Magistrate for the offences punishable under sections 498-A, 114 and 306 I.P.C. Section 498-A of the Indian Penal Code deals with the offence of cruelty by husband or relatives of the husband where the punishment can be for a term which may extend to three years and also fine. The word "cruelty" appearing in section 498-A has been defined in the Explanation to the said section to mean any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health, whether mental or physical, of the woman. "Cruelty" also means harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand. It is true that this offence is triable by a Magistrate of the First Class. Section 114 of the Indian Penal Code deals with abetment by a person, who is present when the act or offence is committed. In such a case, the abettor shall be deemed to have committed the offence and the punishment is the same as the offence committed. Section 306 of the Indian Penal Code deals with the offence of abetment of suicide and if any person commits suicide, whoever abets the commission of such suicide shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine as per section 306 I.P.C. There is no dispute before us that the offence punishable under section 306 I.P.C. is exclusively triable by the Court of Sessions.
4.On the 10th June 1990 there was a quarrel between the deceased on the one hand and the other members of her husband's family. The deceased is alleged to have been abused by her sister-in-law Philomina and by Philomina's husband John, respondents No. 2 and 3. It is thereafter that the incident of the deceased pouring kerosene on her person and setting herself on fire occurred. Her husband, respondent No. 4, is alleged to have tried to save her. She was admitted to the Bhagwati Hospital where she expired on the 21st June 1990. However, as stated earlier, her dying declaration and the first information were already recorded. On these facts, the prosecution case is that the respondents accused had caused ment
