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2023 Supreme(Bom) 2241
IN THE HIGH COURT OF BOMBAY
M.S.Karnik, J.
Prakash Hanumant Naik - Appellant
Versus
Police Inspector - Respondent
Criminal Writ Petition No. 443 of 2023 (F)
Decided On : 18-07-2023
Kapil Kerkar, Advocate, S.G.Bhobe, Advocate
IMPORTANT POINT
The court established that charges in summons cases must be framed in accordance with the specific provisions of the Cr.P.C., particularly Sec. 251, and that the trial court's failure to do so warranted the setting aside of the charge.
Headnote:
CRIMINAL LAW - CHARGE FRAMING AND PROCEEDINGS - Cr.P.C. Sec. 258, IPC Sec. 223, IPC Sec. 224 - The court discussed the provisions of Sec. 258 of the Cr.P.C. regarding the stopping of proceedings in summons cases and the implications of Sec. 223 and 224 of the IPC concerning negligence by a public servant and escape from custody. The court interpreted that the trial court's framing of charge under Sec. 223 was inappropriate as it did not align with the procedural requirements for summons cases, leading to the conclusion that the proceedings should be reconsidered from the appropriate stage.
Fact of the Case:
The petitioner, a jail guard, was accused of negligence leading to an undertrial's escape. The trial court initially framed charges against him under Sec. 223 of IPC, but later stopped proceedings under Sec. 258 of Cr.P.C. The State challenged this decision in a revisional court, which reinstated the charge, prompting the petitioner to seek further review.
Finding of the Court:
The court found that the trial court had erred in framing charges under Sec. 223 of IPC without adhering to the proper procedures for summons cases as outlined in the Cr.P.C. The court emphasized that the trial court's approach was more suited for warrant cases, thus necessitating a reconsideration of the proceedings.
Issues: Whether the trial court correctly framed charges against the petitioner under Sec. 223 of IPC and whether the proceedings should have been stopped under Sec. 258 of Cr.P.C.
Ratio Decidendi: The court held that the framing of charges under Sec. 223 of IPC was inappropriate for a summons case and that the trial court failed to follow the correct procedural framework, particularly the requirements of Sec. 251 of Cr.P.C. The court emphasized the need for adherence to the specific provisions governing summons cases.
Final Decision: The court set aside the order framing charges against the petitioner and the order stopping proceedings, allowing the petitioner to file a fresh application under Sec. 258 of Cr.P.C. for reconsideration of the proceedings.
JUDGMENT/ORDER
1. Heard Shri Kerkar, learned counsel for the petitioner and Shri Bhobe, learned Public Prosecutor for the respondents-State.
2. The challenge in this petition is to the order dtd. 29/5/2023 passed by the revisional court. The petitioner is the original accused no.2. The petitioner's application filed before the trial court under sec. 258 of the Code of Criminal Procedure, 1973 (Cr.P.C., for short) came to be allowed by the order dtd. 27/12/2022. This order passed by the trial Court was challenged before the revisional court by the State of Goa. The revisional court has allowed the revision filed by the State. This is the impugned order. The petitioner, after carrying out amendments, has also challenged the order dtd. 5/1/2022 passed by the trial court framing charge against the petitioner under sec. 223 of the Indian Penal Code (IPC, for short).
3. Briefly stated, the facts are as under : On 25/8/2020, the Mapusa Police Station registered FIR vide Crime No. 230/2020 under Sec. 223 and 224 of the Indian Penal Code. (IPC, for short). The petitioner-accused no.2 at the relevant time was working as a Jail Guard. It is alleged that the accused no. 2 was negligent in the performance of his duty as a result of which, the accused no.1 an under trial prisoner escaped from custody. The investigation against the petitioner proceeded under Sec. 223 of IPC. The accused no.1 was proceeded with under Sec. 224 of IPC. A final report under Sec. 173 of the Cr.P.C. was filed on 1/7/2021.
4. By an order dtd. 5/1/2022, the trial court directed framing of charge against the petitioner under Sec. 223 of IPC. The petitioner filed a criminal revision application no.16 of 2022 before the revisional court challenging the order dtd. 5/1/2022 framing charge. During the pendency of the revision, the petitioner filed an application (exhibit 22) before the trial court on 30/11/2022 for stopping of proceedings under Sec. 258 of Cr.P.C.
5. By an order dtd. 27/12/2022, the trial court allowed the application filed by the petitioner under Sec. 258 of Cr.P.C. and stopped the proceedings against him. The trial court was of the view that as the offence under Sec. 223 of IPC is a non-cognisable offence, the mandatory permission as contemplated under Sec. 155(2) of Cr.P.C. not having been taken by the Investigating Officer, hence the proceedings are bound to be dropped against the petitioner. The respondent-State filed criminal revision application challenging the order dtd. 27/12/2022 before the revisional court on 4/3/2023.
6. On 13/3/2023, the petitioner filed an application for withdrawal of the criminal revision application no.16 of 2022 filed by him on account of the discharge of the petitioner stopping the proceedings under Sec. 258 of Cr.P.C. Consequently, the criminal revision application challenging the order dtd. 5/1/2022 framing charge, was disposed of by the order dtd. 2/5/2023 as not pressed.
7. It is pertinent to note that on 17/3/2023, the accused no.1 pleaded guilty and as such the accused no.1 was convicted for the offence punishable under Sec. 224 of IPC. The criminal proceedings as against the accused no.1 came to be disposed of.
8. The revisional court on 29/5/2023, set aside the order passed by the trial court dtd. 27/12/2022 under Sec. 258 of Cr.P.C. stopping the proceedings. Consequently, the order dtd. 5/1/2022 framing charge under Sec. 223 of IPC passed by the trial court stood revived. It is this order dtd. 29/5/2023 passed by the revisional court which is impugned in this petition and also the order dtd. 5/1/2022 of the trial court framing charge.
9. Heard learned counsel for the parties. Perused the paper book and the impugned order.
10. So far as the order impugned passed by the revisional court is concerned, the court was of the opinion that the trial Judge did not consider the effect of Sec. 155(4) of Cr.P.C. which led to the erroneous granting of the application under Sec. 258 of Cr.P.C. It is on this count that the order of the
