TaxTMI 
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1999 (9) TMI 1015
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....f the accused are chargesheeted by a supplementary chargesheet and Sessions Cases are registered vide Sessions Case No : 106/98 and 57/99, respectively. 4. The learned Sessions Judge of Kutch-Bhuj, after committal, was intending to frame charge against the accused and the present petitioner had applied vide application Exh.29, that Court of Sessions should not frame any charge against him under Section 227 and 228 of CrPC and prayed that he should be discharged from the offences, alleged to have been committed by him under Section 227 and 228 of CrPC. The revisioner of Revision Application No : 464 / 99 had also applied along with other accused for discharge vide joint application Exh.77. The applications preferred under Sections 227 and 228 of the Code of Criminal Procedure, filed by these accused persons (Exs. 29 and 77), were heard by the learned Sessions Judge of Kutch-Bhuj and vide order dated 27th July, 1999, the learned Judge, dismissed both these applications. 5. Feeling aggrieved by the order rejecting the application Ex.29, the original accused No. 4 has filed Revision Application No : 419/99 and original accused No. 7 and 9 and the accused brought on record by a supple....
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....j. It is on the record that Mr. Anup Shukala,an IFS Officer, was heading the Forest Circle of District : Kutch and had directed Mr. Vakani to act in response to the information given by Bavaji Jadeja. Mr. Vakani was told that he should proceed to village Loriya and meet Mr. Bavaji Jadeja before 12.30 and he was also directed to act on receipt of information given by Bavaji Jadeja. It is the case of the prosecution that accused No. 4 Dy. Conservator of Forest of Forest Division (East) was also asked by Mr. Anup Shukala that he should reach to village Loriya and meet Mr. Vankani. he was also asked to help Mr. Vakani in his duties. One Dy. Conservator of Forest Mr. Varma was also similarly directed by Mr. Anup Shukla, the totality in this regard satisfactorily indicates that Bavaji Jadeja was to give some information with regard some Forest offence committed in Forest Division (West). It is not necessary to narrate the chain of events, at this stage, but it is important to note that all the Forest Officials chargesheeted by the Police, were present at the scene of incident, where Bavaji Jadeja was murdered. According to the case of the petitioners, especially, accused No. 4, is that w....
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.... are also not considered. The learned Sessions Judge, according to Mr. Naik, has erred in holding that no conscious steps were taken, or no attempt was made even in preventing the forest crime. Roll of a Conservator is not considered conveniently and ignored. Non performance of duties or exercise of power, as higher officer by accused No. 4, is an illegal inference and not based on the fact available on record. Mr. Naik has submitted that this Court has not obliged to evaluate the evidence nor the Sessions Judge is obliged to appreciate the evidence available on record, while dealing with the application filed under Sections 227 and 228 of the Code of Criminal Procedure. The plain careful reading of the police papers, including the documents available on record, should be done and it is must. On the strength of totality of the facts available on record, the Court should record its finding and the learned Sessions Judge has erred in not doing so. 10. Mr. Naik has taken me through the police statement of all important witnesses including eye witnesses who are named in the chargesheet. The documents produced by the forest officials including one of the accused, the Assistant Conserva....
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....e of the prosecution that by doing the illegal commission, the petitioners have abetted the main offenders who have committed the murder of Bavaji Jadeja and other offences allegedly committed by other accused, who are referred in the first part of police challan filed under Section 173 of Code of Criminal Procedure. The petitioners alleged to have aided by not taking due care and / or caution. It is also alleged that though one of the forest officers was holding a fire arm, has not cared to use it inspite of request of one of the witnesses viz. Makbul. This Makbul has stated that he had requested accused No. 4 and 5. It is argued by Mr. Mankad, learned APP that accused No. 4, as superior in rank, was otherwise bound to direct accused No. 5 to use the fire arm. Whether in absence of any positive police statement on record, will it be legal to presume that accused No. 4 had any knowledge of the fact that accused No. 5 was holding a fire arm, and the same is loaded with ammunition. For the sake of arguments, even if so assumed that accused No. 4 was aware of this fact, whether alleged inaction on the part of the accused No. 4 is satisfactorily established by the investigating agency,....
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....s by not performing their duties. It is not necessary to refer each argument advanced by the learned counsel appearing for the parties because the same can be appreciated even during the course of discussions. 14. A plain meaning of word duty carries various meanings but so far as the present case is concerned, as argued, meaning or the legal or obligatory duties only can be considered as applicants were on duty upon instructions by the superiors. As per Dictionary the word Duty mean :- (i) "(1) that which one is expected or required of one; characterized by doing one's duty : a dutiful citizen; a dutiful child, 2. the binding or obligatory force of that which is morally or legally right; moral or legal obligation, 3. action of a task required by one's position or occupation; function; the duties of a clergyman, 4. the respectful and obedient conduct due to a parent, superior, elder, etc. 5. an act or expression of respect; 6. a task or chore which one is expected to perform, It is your duty to do the dishes. 7. Mil a. an assigned task, occupation or place of service. etc. : 15. It is argued that the learned Sessions Judge has committed an error in interpret....
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....try, raising plantations of fuel wood in Government waste lands and raising suitable trees along the roadsides, canals and railways.." "Foresters and guards on Special Duty : Foresters and Guards employed on jobs like afforestation works, checking depots, sale deposits, sawmill, etc. shall work according to the rules in vogue and orders of the superior officers." 16. There is no evidence under which it can be inferred that any of the applicants including accused No. 4 was knowing the registration number of the said vehicle viz. truck which was detained by Mr. Vakani before couple of minutes earlier to the incident under the information of deceased Bavaji Jadeja. There is no evidence in the police papers under which it can also be inferred that accused No. 4 or his forest guard sitting with him in the jeep car had seen any of the assailants who had reached to the spot in the jeep car prior to the incident in the nearby area where Bavaji Jadeja was assailed. It is there on record that son of accused No. 21 Mohan Bhanusali had some conversation with the Assistant Conservator of Forest Mr. Vakani at one nursery where two trucks loaded with charcoal were detained and he had gone th....
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.... is bound to do certain act which he might be otherwise entitled to do. Interpretation of Section 43 of CrPC in special reference to Section 43 of IPC, would go to show that it is a privilege of a private person to do an act of arrest of the offender referred to in this section but it is not his legal obligation to do so. Mr. Naik has rightly argued that if the logic presented by prosecution is accepted as it is, then every citizen in whose presence a non bailable and cognizable offence, if committed is either witness or the offender. If we ignore all the submission of Mr. Naik to the effect that in reality the petitioners were witnesses to the incidents and they are implicated in the crime on resumption of duties by new investigating officer even then, prima facie reading of police papers do not contain anything under which prima facie this court can say that the petitioners have missed any legal obligation cast on them. Mr. Naik has successfully pointed out that the statement of accused No. 4 and other forest officials were recorded by the investigating officer but after couples of hours, the officer investigating the crime was transferred and the officer substituted vice the ori....
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....icient to connect the accused with the crime. The prosecution is bound to show the involvement of the person/s present at the spot. Such presence should be in capacity of an abettor or co-accused or contributor or of an accomplice prima facie prosecution should connect the presence with the main offence. It also should show that such connection or link between the main accused is made punishable under IPC or any other penal statute. Connection or link can be established even by circumstances. If the case of prosecution is of overtact or illegal omission then, such evidence must be on the police papers. The case of the prosecution against accused No. 4 and the other petitioners is that (i) they were present and their presence was in capacity of the public servant (ii) Bavaji Jadej and companions were assailed because Bavaji Jadeja was the informant of the forest department, (iii) the petitioners are servant and serving with the forest department (iv) the forest officers including the petitioners might have arranged for sufficient police force before reaching the spot of incident (iv) one of the forest officer viz. Assistant Conservator of Forest Mr. Vakani was armed with the weapon ....
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....s, prima facie, branded as an abettor then, the injuries sustained by him cannot be ignored. 18. Though the learned APP Mr. Mankad has tried to submit that this Court has no jurisdiction to appreciate the totality or the nature of the evidence available on record, adequacy of the evidence cannot be looked into by this Court and the learned Sessions Judge has rightly said that prima facie, the case against the petitioners is available on record. But when no overt act in the commission of the offence is attributable to any of the petitioners, then it can be legitimately inferred that the prosecution intends to implicate the accused with the crime upon the circumstantial evidence, then, at the time of dealing with the discharge application under Section 227 and 228 of CrPC, the Court is bound to ascertain whether the prosecution intends to rely on a direct cogent circumstances, or on a certain assumption and / or presumption ? It is settled that the suspicious circumstances is not sufficient to link the accused with the crime. This Court would like to refer the case in UNION OF INDIA VS. PRAFULLA KUMAR SAMAL AND ANOTHER 1979 CriLJ 154. After considering the details of the events, the....
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....hat in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced Court cannot act merely as a Post Office or a mouth piece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial." Further in case of STATE OF UTTAR PRADESH THROUGH CENTRAL BUREAU OF INVESTIGATION VS. DR. SANJAY SINGH AND ANOTHER AIR 1994 SCC Crime 1701, it is observed that "17. The circumstantial evidence even if accepted in its entirety, as pointed out by the courts below creates only a suspicion of motive. Needless to point out that the motive which induces a man to do any particular act is known to him and to him alone." It is further observed in para 18 & 19 that ; 18. At the highest, the prosecution can only suggest from the circumstances what is or may be the motive for any particular act. However, motive is not a sine quo no....
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....y to stop that sort of thing. It is a duty that law puts upon him. But supposing a police officer has a relation who is not a police officer and the police officer gets a confession in the presence of that relation, then, that relation is not guilty of illegal omission because law does not cast upon an ordinary citizen who is not a police officer any particular duty with regard to an accused person. An ordinary person has only a moral duty and no legal duty in such circumstances, and if he does not perform it, although his action may be morally reprehensible, it is not an illegal omission. The Standing Counsel suggests that the accused intentionally abetted the offence by an act. The act which is alleged here is the act of permitting. Of course permission can be a positive act. If there was evidence to show that Upen Das said : "Here is a song, I want to sing. May I sing it ?" and if this accused having reason to believe that the song was of an objectionable character, allowed it and Upen sang the songs, that would be an act and specific permission. But it appears to me that simply doing nothing is not an act, and unless there is a duty to do something, you cannot say that it is ....
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....ubmission of Mr. Mankad, learned APP that accused No. 4 was knowing about the fact that the other forest officer Mr. Vankani is holding revolver or such revolver is loaded weapon and he is able to fire at any moment. 22. Some suspicion circumstances if shown even then on such suspicion, the charge cannot be framed. In case of STATE OF BIHAR VS RAMESH SINGH 1977 CriLJ 1606, the Apex Court has observed that; "...... It is not obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter under Section 227 or Section 228 of the Code. At that stage, the Court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilty at the conclusion of ....
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....roposition that every person intends the natural consequences of his act, on which the learned counsel relies, is often a convenient and helpful rule to ascertain the intention of persons when doing a particular act. It is wrong however to accept this proposition as a binding rule which must prevail on all occasions and in all circumstances. The ultimate question for decision being whether an act was done with a particular intention all the circumstances including the natural consequence of the action have to be taken into consideration. It is legitimate to think also that when S.441 speaks of entering on property "with intent to commit an offence, or to intimidate, insult or annoy" any person in possession of the property it speaks of the main intention in the action and not any subsidiary intention that may also be present. One of the best expositions of the meaning of the word "intent" as used in the Indian Penal Code was given in a decision of the Bombay High Court in 1900 in Bhagwant Vs. Kedari, ILR 25 Bom 202 . Examining the definition of the word "fraudulently" in S.25 of the Indian Penal Code, viz. " a person is said to do a thing fraudulently if he does that thing with int....
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.... he was taken at the spot of incident and on arrival of the assailants, the petitioners conveniently escaped from the spot so that the assailants can commit the offence qua the body of Bavaji Jadeja and his companions, otherwise, the police would have filed Challan under Section 173 accordingly and the present petitioners would have been prosecuted for the offence punishable under Section 120B read with Section 302 of I.P. Code along with other accused. I agree that the conduct of the accused or some act or omission pleaded by the accused should be scrutinised closely and on close scrutiny if, Court feels that an inference against the accused can be drawn then the Court is at liberty to draw such inference but the Court cannot read between the lines or can interpret the event in its own way. There must be positive circumstantial evidence in the papers of the investigation available on record. In absence of any such positive evidence, the inference against the accused or presumption or assumption either in favour of the prosecution or against the accused cannot be drawn. It seems that the learned Sessions Judge has given weightage to his moral conviction rather than the legal findin....
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....t the spot of incident was with his will and wish or against the wish and desire of the forest officials is not matter of much relevance. Bavaji Jadeja even had gone to the spot of incident as per his wish and will even then, the duty qua Bavaji Jadeja would remain the same so far the forest officials are concerned. But the duty which was required to be performed by the forest officials, in accordance with law and further in accordance with the manual and statue, cannot be said to have been not performed. There was no willful neglect or intentional omission in performing such duty. The plain reading of the order passed by the learned Sessions Judge gives an impression that the learned Session Judge was of the view that in this case, moral duty of the department personnel qua their legal duty was on equal footing but the learned Sessions Judge has not considered certain important relevant aspects e.g. right of each of the applicants to save themselves. It is also there on record that Bavaji Jadeja had died on the spot and removal of the body of Bavaji Jadeja from the spot of incident might have created problem even for the investigating agency and to the petitioners. The Forest offi....
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.... itself would not make any person/s accused of that crime committed even against his/their wish, will, intention though the same is committed in his/their presence and knowledge. 27. Various authorities are cited before me by the learned counsel appearing for the petitioner Mr. Naik and Mr. Mankad, learned APP. But I am inclined to accept that this is not an act of intentional omission which can be equated with the offence of rape committed in police custody by one police personnel when the other is very well present in the police chawki or immediately outside the gate as is sought to be canvassed by the learned APP. 28. I also do not accept the submission of Mr. Mankad, learned APP that because of the limited scope, this Court, while exercising the revisional jurisdiction, a reasoned order should not be interfered. This Court is legally authorised to evaluate the reasons given by the learned Sessions Judge as to whether the reason or reasons given by the lower court is in accordance with the facts available on record. This Court can also appreciate whether law applied by the lower court is correct. I agree that while dealing with such revision application this Court normally has....
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....h offences. This depends on other various facts. The facts of this case indicate that, the situation was beyond the control of the forest officials and they were not in a position to arrest any of the accused even under Section 64 of Forest Act, though the forest officers are deemed public servant, within the meaning of Indian Penal Code in view of Section 73 of Forest Act but there is nothing on record to show that any of the applicants had behaved in a manner in which, at the time and spot of the incident, no public servant would have behaved. 29. Where the presence of the petitioner at the spot of event when is not a matter of dispute then, the Court should see that, prima facie, while dealing with the application under Section 227 and 228 that whether this is a case of mere presence or not ? Where there is case which is not only of a mere presence, then in such type of case, the conduct of the accused persons at the spot of incident can be looked into from plain reading of papers of investigation. The conduct previous i.e. prior to the incident / event, during the event and subsequent to the event are relevant. Such conduct may be by overt act or by way of illegal commission. ....
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....absolute in both the Criminal Revision Application Nos : 464/99 and 419/99, accordingly. Copy of this order be placed in Criminal Revision Application No : 464/99. FURTHER ORDER Before the above final order dated 10th September, 1999 could be sent to the Registry for issuance of Farad, the learned APP Mr. Mankad appearing for the State and Mr. B.B.Naik, learned advocate appearing in the Criminal Revision Application No : 419 of 1999 have drawn attention of this Court to the fact that the learned advocate Mr. J.R. Dave appearing for the petitioners in Criminal Revision Application No : 464 of 1999 had made an erroneous statement contrary to the record that petitioner No. 2 was working under Accused No. 4 (Petitioner of Criminal Revision Application No : 419 of 1999 ), therefore, under the circumstances, before passing any order, this Court decided to call Mr. J.R.Dave, learned advocate who has argued the Criminal Revision Application No : 464 of 1999. Mr. Dave appeared and has fairly conceded that bonafide mistake has been committed by him. The petitioner No. 2, though he is the Forest Guard, was not with accused No. 4 (petitioner of Criminal Revision Application No : 419 of 1999....