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CASE NO.: Appeal (crl.) 1508  of 2003

PETITIONER: State of Maharashtra                         

RESPONDENT: Salman Salim Khan & Anr.                             

DATE OF JUDGMENT: 18/12/2003

BENCH: N. Santosh Hegde & B.P. Singh

JUDGMENT: J U D G M E N T

2 4615 2003

SANTOSH HEGDE, J.

       Heard learned counsel for the parties.

       Leave granted.

       The entire exercise which culminated in the impugned  judgment of the High Court, in our opinion, was an exercise in  futility and sheer waste of time and money.

       The law governing the trial of criminal offences provides  for alteration of charges at any stage of the proceedings  depending upon the evidence adduced in the case. If the trial is  being held before a Court of Magistrate it is open to that court  at any stage of trial if it comes to the conclusion that the  material on record indicates the commission of an offence  which requires to be tried by a superior court, it can always do  so by committing such case for further trial to a superior court  as contemplated in the Code of Criminal Procedure (the Code).  On the contrary, if the trial is being conducted in a superior  court like the Sessions Court and if that court comes to the  conclusion that the evidence produced in the said trial makes  out a lesser offence than the one with which the accused is  charged, it is always open to that court based on evidence to  convict such accused for a lesser offence. Thus, arguments  regarding the framing of a proper charge are best left to be  decided by the trial court at an appropriate stage of the trial.  Otherwise as has happened in this case proceedings get  protracted by the intervention of the superior courts.

       Now coming to the present appeal :  

       The respondent herein was originally charged of an  offence punishable under sections 304A, 279, 337, 338, 427  IPC and 134(a)(b) read with sections 181 and 185 of the Motor  Vehicles Act, 1998 as also 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 respondents 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.            It is the case of the prosecution that on the night  intervening the 27th and 28th September, 2002, the respondent  drove his car under the influence of alcohol, in a rash manner

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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 304A 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 respondent 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 respondent 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, IPC and if at all, only a charge for an  offence punishable under section 304A 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.

         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 Criminal Appellate Bench of the  High Court of Judicature at Bombay. The 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 respondent herein  while it maintained the other charges and directed the  appropriate Magistrate’s court to frame de novo charges under  various sections mentioned in the said impugned order of the  High Court including one under section 304A IPC.

       It is against the said order of the High Court, the State of  Maharashtra has preferred this appeal. Mr. Ashwani Kumar,  learned senior counsel appearing for the State of Maharashtra  contended that a perusal of the original complaint as  supplemented by the additional statement of the complainant  clearly shows that the respondent drove his vehicle on the day  of the accident without holding a motor driving licence, under  the influence of alcohol, in a rash and negligent manner and  failed to contain the speed of the vehicle in spite of being  cautioned by the complainant, thus causing the death of one  person and grievous injuries to four others. Therefore, it is  clear, at this stage at least, that the respondent had the  knowledge that by such act of his, he would be causing death of  the victim if he meets with an accident. Such knowledge,  according to learned counsel, is evident from the conduct of the  respondent as could be seen from the averment in the complaint  itself. He also contended that the High Court in a petition under  section 482 of the Code could not have weighed the material  that was before the court nor could it have tested the veracity of  the statement of the complainant at this stage to come to the  conclusion that the principal offence would not fall under  section 304, Part II, IPC. He further contended that by doing so,  the High Court has pre-judged the issue and by giving a  conclusive finding in this regard has pre-empted the courts  below from assessing the evidence during the trial and if need  be, from properly altering the charges.

       Mr. Harish N Salve, learned senior counsel representing

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the respondent-accused, per contra, contended that from a plain  reading of the complaint which is the only material available at  this stage for the purpose of framing charges, no reasonable  person could ever have come to the conclusion that the  respondent ever had any knowledge that by his act of driving  the motor vehicle, he would cause such an act which would lead  to the death of any person. He further submitted that from the  material on record itself it is clear that if at all any act of the  respondent is responsible for the death of the victim same  cannot be termed anything other than a rash and negligent act  punishable under section 304A. Learned senior counsel further  submitted that since the learned Sessions Judge while rejecting  the application of the petitioner filed before it in altering the  charge from section 304 Part II to 304A, IPC, had itself passed  a lengthy order which indicated that the said court had formed a  conclusive opinion as to the nature of offence which definitely  would have prejudiced the case of the respondent in the trial,  the High Court was left with no choice but to decide this  question as to the nature of offence if at all committed by the  respondent.

       But for the fact that two courts below i.e. the Sessions  Court and the High Court having gone into this issue at length  and having expressed almost a conclusive opinion as to the  nature of offence, we would not have interfered with the  impugned order of the High Court because, as stated above,  neither of the sides would have been in any manner prejudiced  in the trial by framing of a charge either under section 304A or  section 304 Part II, IPC except for the fact that the forum trying  the charge might have been different, which by itself, in our  opinion, would not cause any prejudice. This is because at any  stage of the trial it would have been open to the concerned court  to have altered the charge appropriately depending on the  material that is brought before it in the form of evidence. But  now by virtue of the impugned judgment of the High Court  even if in the course of the trial the Magistrate were to come to  the conclusion that there is sufficient material to charge the  respondent for a more serious offence than the one punishable  under section 304A, it will not be possible for it to pass  appropriate order. To that extent the prosecution case gets pre- empted.

       We are of the opinion that though it is open to a High  Court entertaining a petition under section 482 of the Code to  quash charges framed by the trial court, same cannot be done by  weighing the correctness or sufficiency of evidence. In a case  praying for quashing of the charge, the  principle to be adopted  by the High Court should be that if the entire evidence  produced by the prosecution is to be believed, would it  constitute an offence or not. The truthfulness, the sufficiency  and acceptability of the material produced at the time of  framing of charge can be done only at the stage of trial. By  relying upon the decisions of the apex Court most of which  were with reference to appeals arising out of convictions, we  think the High Court was not justified in this case in giving a  finding as to the non-existence of material to frame a charge for  an offence punishable under section 304 Part II, IPC, therefore,  so far as the finding given by the High Court is concerned, we  are satisfied that it is too premature a finding and ought not to  have been given at this stage. At the same time we are also in  agreement with the arguments of learned counsel for the  respondents that even the Sessions Court ought not to have  expressed its views in such certain terms which indicates that  the Sessions Court had taken a final decision in regard to the  material to establish a charge punishable under section 304 Part

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II, IPC.

       Therefore, we think it appropriate that the findings in  regard to the sufficiency or otherwise of the material to frame a  charge punishable under section 304, Part II, IPC of both the  courts below should be set aside and it should be left to be  decided by the court trying the offence to alter or modify any  such charge at an appropriate stage based on material produced  by way of evidence.

       The next question which then requires our consideration  is whether in view of our above finding, the charge framed by  the Sessions Judge for an offence punishable under section 304  Part II, IPC be sustained or one under section 304A as has been  done by the High Court, should be retained ?            We have been informed that pursuant to the judgment of  the High Court, the Metropolitan Magistrate, 12th Court,  Bandra, Mumbai, has already framed fresh charges under  section 304A and other provisions mentioned hereinabove and  the trial has commenced. Since any interference at this stage  would not further the cause of justice and would lead only to  delay the course of justice, we think it appropriate that the  proceedings before the said Magistrate’s Court should continue  and the trial should proceed on the basis of the charges framed  by it but we make it very clear that at any appropriate stage if  the Magistrate comes to the conclusion that there is sufficient  material to charge the respondent for a more serious offence  than the one punishable under section 304A, he shall proceed to  do so without in any manner being hindered or influenced by  the observations or findings of the High Court in the impugned  order or by the order of the Sessions Court which framed the  charge punishable under section 304 Part II, IPC. Such decision  of the Magistrate shall be purely based on the material brought  in evidence at the trial.         We make it clear that neither by sustaining the order of  the High Court in remitting the trial to the court of Magistrate,  nor by our observations in this judgment as to the acceptability  or otherwise of the material now on record, we have expressed  any opinion on the merits of the case. Whatever is observed by  us in this judgment is solely for the purpose of disposal of this  appeal.            With the above observations, this appeal is disposed of.