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  • Salman Salim Khan-Drunken Driving Case-Criminal Revision Judgement

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    Sampath Bulusu
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    Salman was earlier tried by a magistrate under the lesser charge of causing death by negligence (Section 304 A of IPC), which provides for a maximum punishment of two years in jail. However, in a twist to the case, the Bandra Metropolitan Magistrate, after examining 17 witnesses, had brought forth the more serious charge of culpable homicide against the 47-year-old actor and transferred it to a sessions court for re-trial. Advancing his argument against invoking the grave charge of culpable homicide not amounting to murder (section 304 part II IPC), his counsel Ashok Mundargi pleaded that the Magistrate's order was "erroneous, bad in law and contrary to evidence on record." The Magistrate, he contended, had failed to appreciate that the actor had neither the intention to kill people, nor the knowledge that his rash and negligent driving would kill a person and cause injury to four others. Public Prosecutor Shankar Erande while opposing Salman's appeal said the Magistrate had rightly invoked the charge of culpable homicide as he had committed a serious offence. The court fixed July 19 for commencement of the retrial. Erande argued that a prosecution witness Ravindra Patil (now deceased), a police bodyguard deployed for the actor's security and accompanying him at the time of the accident, had warned him not to drive rashly as it could lead to a mishap. Yet, Khan did not pay heed and drove at a great speed, the prosecutor contended. The prosecutor submitted that Khan was drunk and his blood sample revealed 60 mg alcohol which was beyond the permissible limit. He said Salman had the knowledge that his act of rash driving, more particularly after taking drinks, might result in death of people in accident. Moreover, the actor is familiar with the topography of the area as he stays close to the scene of the accident. As such, he was fully aware that people sleep on the footpaths in that locality, the prosecutor said. One person was killed and four others were injured when the Land Cruiser allegedly driven by Khan ran into a group of people sleeping on the pavement outside a bakery in suburban Bandra in the wee hours on September 28, 2002.

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    Salman was earlier tried by a magistrate under the lesser charge of causing death by negligence (Section 304 A of IPC), which provides for a maximum punishment of two years in jail. However, in a twist to the case, the Bandra Metropolitan Magistrate, after examining 17 witnesses, had brought forth the more serious charge of culpable homicide against the 47-year-old actor and transferred it to a sessions court for re-trial. Advancing his argument against invoking the grave charge of culpable homicide not amounting to murder (section 304 part II IPC), his counsel Ashok Mundargi pleaded that the Magistrate's order was "erroneous, bad in law and contrary to evidence on record." The Magistrate, he contended, had failed to appreciate that the actor had neither the intention to kill people, nor the knowledge that his rash and negligent driving would kill a person and cause injury to four others. Public Prosecutor Shankar Erande while opposing Salman's appeal said the Magistrate had rightly invoked the charge of culpable homicide as he had committed a serious offence. The court fixed July 19 for commencement of the retrial. Erande argued that a prosecution witness Ravindra Patil (now deceased), a police bodyguard deployed for the actor's security and accompanying him at the time of the accident, had warned him not to drive rashly as it could lead to a mishap. Yet, Khan did not pay heed and drove at a great speed, the prosecutor contended. The prosecutor submitted that Khan was drunk and his blood sample revealed 60 mg alcohol which was beyond the permissible limit. He said Salman had the knowledge that his act of rash driving, more particularly after taking drinks, might result in death of people in accident. Moreover, the actor is familiar with the topography of the area as he stays close to the scene of the accident. As such, he was fully aware that people sleep on the footpaths in that locality, the prosecutor said. One person was killed and four others were injured when the Land Cruiser allegedly driven by Khan ran into a group of people sleeping on the pavement outside a bakery in suburban Bandra in the wee hours on September 28, 2002.

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    795 views51 pages

    Salman Salim Khan-Drunken Driving Case-Criminal Revision Judgement

    Uploaded by

    Sampath Bulusu
    Salman was earlier tried by a magistrate under the lesser charge of causing death by negligence (Section 304 A of IPC), which provides for a maximum punishment of two years in jail. However, in a twist to the case, the Bandra Metropolitan Magistrate, after examining 17 witnesses, had brought forth the more serious charge of culpable homicide against the 47-year-old actor and transferred it to a sessions court for re-trial. Advancing his argument against invoking the grave charge of culpable homicide not amounting to murder (section 304 part II IPC), his counsel Ashok Mundargi pleaded that the Magistrate's order was "erroneous, bad in law and contrary to evidence on record." The Magistrate, he contended, had failed to appreciate that the actor had neither the intention to kill people, nor the knowledge that his rash and negligent driving would kill a person and cause injury to four others. Public Prosecutor Shankar Erande while opposing Salman's appeal said the Magistrate had rightly invoked the charge of culpable homicide as he had committed a serious offence. The court fixed July 19 for commencement of the retrial. Erande argued that a prosecution witness Ravindra Patil (now deceased), a police bodyguard deployed for the actor's security and accompanying him at the time of the accident, had warned him not to drive rashly as it could lead to a mishap. Yet, Khan did not pay heed and drove at a great speed, the prosecutor contended. The prosecutor submitted that Khan was drunk and his blood sample revealed 60 mg alcohol which was beyond the permissible limit. He said Salman had the knowledge that his act of rash driving, more particularly after taking drinks, might result in death of people in accident. Moreover, the actor is familiar with the topography of the area as he stays close to the scene of the accident. As such, he was fully aware that people sleep on the footpaths in that locality, the prosecutor said. One person was killed and four others were injured when the Land Cruiser allegedly driven by Khan ran into a group of people sleeping on the pavement outside a bakery in suburban Bandra in the wee hours on September 28, 2002.

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    CRA220/13

    INTHECOURTOFSESSIONSGREATERBOMBAY. CRIMINALREVISIONAPPLICATIONNo.220of2013 IN C.C.No.490/PSof2005 SalmanSalimKhan Age47years,Occupation:Actor GalaxyApartments,B.J.Road, Bandstand,Bandra(West), Mumbai400050. V/s. TheStateofMaharashtra ThroughSeniorInspectorofPolice BandraPoliceStation

    .....Applicant/Accused.

    .....Respondent.

    AdvocateShriAshokMundargiforapplicant/Accused. AdvocateShriShankarErandefortheState. AdvocateSmt.AbhaSinghforintervener. CORAM:HISHONOURADDL.SESSIONSJUDGE SHRIU.B.HEJIB (COURTROOMNO.25) DATED:24thJune,2013 ORALORDER 1. This Revision Application has been directed by the

    Applicant/AccusedinCriminalCaseNo.490/PS/05onthefileoftheLd.Addl. Chief Metropolitan Magistrate, 9th Court at Bandra, Mumbai against the order dated 31/1/2013 by which he committed the case to the Court of SessionsbyformingjudicialopinionthatinthiscaseSection304(II)ofIPC, 1860 has been attracted,which after committal has been numbered as SessionsCaseNo.240/2013. 2. The applicant/accused herein was originally charged of an

    offencepunishableundersections304A,279,337,338,427IPCand134(a) (b)readwithsections181and185oftheMotorVehiclesAct,1998asalso

    CRA220/13

    undersection66(1)(b)oftheBombayProhibitionAct.Alltheseoffencesare triable by a court of Magistrate of competent jurisdiction. These charges againsttheapplicant/accusedwereregisteredbasedonacomplaintlodgedby one Shri Ravindra Patil, a Police Constable attached to the Security Departmentandpostedwiththerespondenttolookafterhissecurity. 3. Itisthecaseoftheprosecutionthatonthenightinterveningthe

    27thand28thSeptember,2002,theapplicant/accuseddrovehiscarunder theinfluenceofalcohol,inarashmannerandcausedthedeathofoneperson andcausedgrievousinjuriestofourotherswhohappenedtobesleepingon the footpath. A few days later the chargesheetfiled as above, came to be modifiedbasedontheadditionalstatementofthecomplainant,andinstead ofsection304AIPC,section304PartII,IPCwassubstitutedwhichisan offence exclusively triable by a Court of Sessions. Hence the learned Magistratewhotookcognizanceoftheoffence,committedthesaidcasetothe CourtofSessionsfortrial.Itistobenotedthattheapplicant/accusedwas grantedbailevenafterthechargewasmodifiedtoincludesection304PartII, IPC. On the framing of the charge under section 304 Part II, IPC, the applicant/accusedfiledCriminalApplicationNo.463of2003intheCourtof Sessionsallegingthatthefactsasnarratedinthecomplaintdidnotconstitute anoffencepunishableundersection304PartIIofIPCandifatall,onlya chargeforanoffencepunishableundersection304Acouldbeframedagainst him, apart from other offences triable by the court of Magistrate. Said application came to be rejected by the Sessions Court and the learned SessionsJudgethenproceededtoframecharges;oneofwhichwasforan offencepunishableundersection304PartII,IPC. 4. Being aggrieved by the dismissal of his application and the

    consequential framing of charge under section 304 Part II, the respondent preferredaCriminalApplicationundersection482oftheCodebeforethe

    CRA220/13

    Criminal Appellate Bench of the High Court of Judicature atBombay. The Hon'bleHighCourtbytheimpugnedorderhasallowedthesaidapplication andquashedtheordermadebythelearnedSessionsJudgeframingcharge undersection304PartII,IPCagainsttheapplicant/accusedhereinwhileit maintainedtheotherchargesanddirectedtheappropriateMagistratescourt to frame de novo charges under various sections mentioned in the said impugnedorderoftheHon'bleHighCourtincludingoneundersection304A IPC. 5. ApexCourt. 6. ThesaidAppeal(CRL)1508of2003washeardbytheHon'ble ItisagainstthesaidorderoftheHon'bleHighCourt,theState ofMaharashtrahadpreferredAppeal(CRL)1508of2003beforetheHon'ble

    ApexCourtandwasadjudicatedon18/12/2003. TheHon'bleApexCourt hasobservedasunder: Butforthefactthattwocourtsbelowi.e.theSessionsCourt andtheHighCourthavinggoneintothisissueatlengthand 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,neitherofthesideswouldhavebeeninanymanner prejudicedinthetrialbyframingofachargeeitherunder section304Aorsection304PartII,IPCexceptforthefact thattheforumtryingthechargemighthavebeendifferent, which by itself, in our opinion, would not cause any prejudice.Thisisbecauseatanystageofthetrialitwould havebeenopentotheconcernedcourttohavealteredthe charge appropriately depending on the material that is broughtbeforeitintheformofevidence.Butnowbyvirtue oftheimpugnedjudgmentoftheHighCourtevenifinthe 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 punishableundersection304A,itwillnotbepossibleforit topassappropriateorder.Tothatextenttheprosecutioncase getspreempted. WeareoftheopinionthatthoughitisopentoaHigh

    CRA220/13

    Courtentertainingapetitionundersection482oftheCode toquashchargesframedbythetrialcourt,samecannotbe donebyweighingthecorrectnessorsufficiencyofevidence. Inacaseprayingforquashingofthecharge,theprincipleto beadoptedbytheHighCourtshouldbethatiftheentire evidence produced by the prosecution is to be believed, woulditconstituteanoffenceornot.Thetruthfulness,the sufficiencyandacceptabilityofthematerialproducedatthe timeofframingofchargecanbedoneonlyatthestageof trial.ByrelyinguponthedecisionsoftheapexCourtmostof which were with reference to appeals arising out of convictions,wethinktheHighCourtwasnotjustifiedinthis caseingivingafindingastothenonexistenceofmaterialto frameachargeforanoffencepunishableundersection304 PartII,IPC,therefore,sofarasthefindinggivenbytheHigh Courtisconcerned,wearesatisfiedthatitistooprematurea findingandoughtnottohavebeengivenatthisstage.Atthe sametimewearealsoinagreementwiththeargumentsof learnedcounselfortherespondentsthateventheSessions Courtoughtnottohaveexpresseditsviewsinsuchcertain termswhichindicatesthattheSessionsCourthadtakena finaldecisioninregardtothematerialtoestablishacharge punishable under section 304 Part. Therefore, we think it appropriatethatthefindingsinregardtothesufficiencyor otherwise of the material to frame a charge punishable under section 304, Part II, IPC of both the courts below shouldbesetasideanditshouldbelefttobedecidedbythe courttryingtheoffencetoalterormodifyanysuchchargeat anappropriatestagebasedonmaterialproducedbywayof evidence. Thenextquestionwhichthenrequiresourconsiderationis whetherinviewofourabovefinding,thechargeframedby theSessionsJudgeforanoffencepunishableundersection 304PartII,IPCbesustainedoroneundersection304Aas hasbeendonebytheHighCourt,shouldberetained? Wehavebeeninformedthatpursuanttothejudgmentofthe High Court, the Metropolitan Magistrate, 12th Court, Bandra, Mumbai, has already framed fresh charges under section 304A and other provisions mentioned hereinabove andthetrialhascommenced.Sinceanyinterferenceatthis stagewouldnotfurtherthecauseofjusticeandwouldlead onlytodelaythecourseofjustice,wethinkitappropriate that the proceedings before the said Magistrates Court shouldcontinueandthetrialshouldproceedonthebasisof thechargesframedbyitbutwemakeitveryclearthatat

    CRA220/13

    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 section304A, he shall proceed to do so withoutinanymannerbeinghinderedorinfluencedbythe observationsorfindingsoftheHighCourtintheimpugned orderorbytheorderoftheSessionsCourtwhichframedthe charge punishable under section 304 Part II, IPC. Such decision of the Magistrate shall be purely based on the materialbroughtinevidenceatthetrial 7. Thereafter the trial was held before the ld. Magistrate who

    examinedasmanyas17witnessesduringthecourseoftrial.Whilethetrial wasinprogress,anapplicationwasfiledbytheStateU/s.323r/w216of Cr.P .C.forcommittingthecasetotheCourtofSessions,asSec.304(II)ofIPC wasattracted. Thesaidapplicationwasheardbytheld.Magistrate. After hearing both the sides, ultimately by order dated 31/01/2013 interalia holdingthathehasempowermentbyvirtueofSec.323ofCr.P .C.tocommit thecasetotheCourtofSessionsonthebasisofavailableevidence.Hehas relied upon and discussed the evidence of PW1 Ravindra Patil, Security GuardfromPolicedepartmentforthesecurityoftheaccusedwhowassitting neartheseatoftheapplicant/accusedaspertheprosecutionstory,PW14 Dattatray Balashankar (Asst. Chemical Analyzer), PW9 Rizwan Ali a hotel manager who stated that applicant/accused purchased a beer cocktail and Barawardi wine from his hotel and PW2 Ram Asara Ramdev Pandya,who statedinhisevidencethat,accusedwentawayalongwithotherpersonsfrom thespotoftheincidentimmediatelyaftertheincident. Theld.Magistrate wasoftheclearopinionthatitwasunnecessaryforhimtoexamineallthe witnessesandoncetheevidencewiththecasehasripenforbeingcommitted, itisopenforhimtocommitthecasetotheCourtofSessionswithoutany amount of delay any further. Ultimately he committed the case vide the impugnedorder.ThisisthesubjectmatterofthepresentRevision. Submissionsatthebarbytheld.APPShriShankarErande .

    CRA220/13 8.

    Itisvehementlysubmittedbytheld.APPShriShankarErande

    thatsincetheprosecutionsummoned39witnessesandinasmuchasonly14 witnesses could be found, the prosecution had no other alternative but to examinethem.Accordingtotheld.APPPW1thecomplainantRavindraPatil, policeguardisthestarwitness. Hisevidenceunerringlyshowsthatatthe relevant time, the applicant/accused was drunk and in that condition he drovethecaranddespitehisgivingalarmwhiletakingtherightturntoslow downthespeed,theapplicant/accusedpaidnoheedtothesame. Thecar ultimately rammedonthefootpathresultingintothemishapinquestion. Moreover,inthesubmissionoftheld.APP ,theapplicant/accusedwaswell awareofthetopographyoftheentireareaasheistheresidentofthatarea itself. Theapplicant/accusedthereforehadrequisiteknowledgethatbyhis culpablerashnessifthecarisdrivenfromthefootpathitislikelytotakeaway thelivesofpersonsorlikelytocauseinjuriestomanypersons.Thereforein hishumbleview,Sec.304(II)ofIPChasbeenrightlyprimafaciesaidtobe attractedbytheld.Magistrateandnofaultcanbefoundintheimpugned order. RoleoftheIntervenor 9. Advocate Smt. Abba Singh is appearing for the Intervenor. However,shemadeitveryclearthatherinterventionwouldbevisavisfull fledgedtrialandthereforeinrespectofthepresentRevision,itisunnecessary excerptastowhatshehasaddressedtothecourt. S ubmissionsatthebarbytheld.advocateShriAshokMundargiforthe applicant/accused. 10. Per contra in the submission of the ld. advocate Shri Ashok Mundargi for the applicant/accused, the impugned order suffers from manifoldinfirmities.Inhisferventsubmission,withoutprejudicetothecase ofaccusedthathewasnotdrivingthecarinquestionandwasnotunderthe influenceofliquor;

    CRA220/13

    a) theLd.Magistratefailedtoappreciatethatnoprimafacie casehasbeenmadeoutmuchlessvisavisSec.304(II)ofIPC; b)secondlytheLd.Magistratemisdirectedhimselfinrespectof thephraseologyemployedbytheHon'bleApexCourtsupraCri.AppealNo. 1508/03 decided on 18/12/2003 which was the precondition and the expressionevidence,employedbytheApexCourtdoesnotalonemeanonly examinationinchief but as well the crossexamination and the defence evidence; c)TheLd.Magistrateonlyerringlyconsideredtheevidenceof PW1RavindraPatil,thecomplainant,apolicepersonnelwithoutconsidering thecontradictionsappearinginhiscrossexamination; d) The Ld. Magistrate has also not considered the self contradictoryevidenceinrespectofcollectionofbloodsample; e) The Ld. Magistrate has also failed to appreciate that to attractSec.304(II)ofIPCitrequiresMensReadesignedtocommitanact whichispositivementalstateofmindanda knowledgewhichisagaina positivestateofmindabouttheresulttobeachievedbyindulginginsuchact. Therefore there cannot be any alternative for additionally charging U/s. 304(II)ofIPCalongwithSec.304AofIPC.Accordingtotheld.advocatethe termknowledgeisnotmerelyaprobabilityandtoattract knowledgeas contemplatedbySec.304(II)ofIPCevendrivingintherecklessmanneror evenextremenegligenceorextremelyrashactcannotculminateintoanact withknowledge; f)Theld.MagistratehasoverlookedthefactthatFIRofPW1 RavindraPatilwasinconflictwiththatofhissubsequentbelatedstatement andthesamewasobviouslyprocuredbytheStateduetointensepressureand criticismfromMedia; (g) In respect of the submission of the ld. APP that the Applicant/accusedhadcrystalclearknowledgeofthetopographyofthearea oftheincident,theld.advocateShriMundargihassubmittedthatthereisno

    CRA220/13

    fixedspotforthehomelesspeopletosleeponfootpathseverynightanditis notpossiblethatevenforapersonstayinginthesameareatoanticipatethe presenceofpeoplesleepingonaparticularfootpathat2.45a.m.inthenight. (h) He has also submitted that Learned Magistrate has only considered in paragraph 21 of the Impugned Order that any man of commonprudencewouldhavetheknowledgetonotdrivethesaidCarin adrunkenstateandathighspeedorinotherwordsthemannerinwhich theApplicantwasdrivingthesaidCar.Assuming,whiledenyingthatthe Applicantwasdriving the saidCar, and thattooina drunkenstate,itis respectfully submitted that the Learned Magistrate ought to have also consideredwhethertheApplicantalsohadtheknowledgethattheparticular act of driving the said Car would result in the death of a person, more specifically the death of the concerned person sleeping on the steps of AmericanExpressCleaners; (i) Further,itissubmittedthatthemedicalevidenceonrecord inthisregarddoesnotgotoproveinaccordancewithlawthattheApplicant wasdrunkorundertheinfluenceofalcohol. (j) The Ld. Magistrate did not in the proper perspective appreciate that the complainant Ravindra Patil, a police personnel in the interviewdated30/9/02statedin 'MidDay' that gaadinahighoomrahi' whichclearlyshowsthattheaccusedmadepossibleefforttosteerthecar away from the American Express Cleaners and therefore the charge U/s. 304(II)ofIPCwhichissaidtobeattractedintheesteemedopinionoftheLd. Magistrateisfallacious. 11. Theld.advocatefortheapplicant/accusedhasplacedreliance i) NageshwarShriKrishnaGhobev. StateofMaharashtra, (1973)4SCC23; ii)StateofGujaratv.HaidaraliKalubhai,(1976)1SCC889;

    onthefollowingdecisions:

    CRA220/13

    iii)KeshubMahindrav.StateofM.P .,(1996)Cr.L.J.2020; (iv)SureshChaudharyv.StateofBihar,(2003)4SCC128 and (v)Prabhakaranv.StateofKerala,(2007)14SCC269. 12. ThefirstcaseofNageshwarGhobewasinrespectofSec.304A

    ofIPC.Infactitwasacriminalappealafterfullfledgedtrial.Inthatcase, the accused who was convicted by the Hon'ble High Court came to be acquittedbytheHon'bleApexCourthavingregardtothepeculiarfactsand evidence. Thereapedestrianwasrunningtotheroad. TheHon'bleApex CourtobservedthatalthoughtheHon'bleHighCourtmayberightinholding thattheroadattherelevanttimewasmorethannormallycrowded,itwas stillaquestionforconsiderationastofromhowmuchdistancetheappellant wouldhavebeenabletoseethepedestrianwhowasrunningtotheroad,an aspectwhichwasnotadvertedtobytheHon'bleHighCourt. 13. Intheseconddecisionof State ofGujaratv. Haidarali, the

    principles enunciated by the Hon'ble Apex Court was that Section 304A carvesoutaspecificoffencewheredeathiscausedbydoingarashor negligentactandthatactdoesnotamounttoculpablehomicideunders. 299,I.P .C.ormurderunders.300I.P .C. 14. Inthethirddecisionof KeshubMahindra, itwasheldthat in

    framing a charge under Section 304 Part II, material on record must indicatesomeactdonebyaccusedwhichhadcauseddeathwithatleast suchaknowledgethathebysuchanactwaslikelytocausedeath. 15. InthefourthdecisionofSureshChaudhary,convictionU/s.302

    ofIPCr/wSec.27ofArmsActcametobesetasidebytheHon'bleApex Court.Inthatcasetheprosecutionrelieduponthesoletestimonyoftheonly

    CRA220/13

    10

    eyewitness PW8. The Ld. Sessions Judge as well as Hon'ble High Court believed his evidence as was found sufficient in the normal to base the conviction. However,intheopinionoftheHon'bleApexCourtsincePW8 wasacloserelativeandinterestedwitnessandsincehisevidencewasfallof contradictions,thesamecannotbereliedupontobasetheconviction.Inthat case,itissignificanttonotethattherewereotherwitnessesaswell. 16. Inthefifthrulingsoughttoberelieduponbytheld.advocate

    ShriMundargiforapplicant/accusedinthecaseofPrabhakaranv.Stateof Kerala, itwasheldthatSec.304Aappliestoacaseinwhichwithoutany intentionorknowledgedeathiscausedbyrashornegligentact.Inthatcase schoolchildrencrossingtheroadinquewererunoverbybus.Thebuswas being driven at high speed and did not stop inspite of asking by the passengersandpedestrians. TheHon'bleApexCourtheldthatnointention onthepartofdriverstandsprovedandconvictedtheaccusedU/s.304Aof IPCinsteadofSec.304(II)ofIPC.Therethedriverhoweverwasnotfoundin thedrunkencondition. RelevantcaselawonS.323ofCr.P .C. 17. After giving my anxious thought to the rival submissions advancedatBarandafterperusaloftheimpugnedorderandmaterialplaced on record, it is useful to have a glance over Sec. 323 of Cr.P .C., which is reproducedbelow: When, after commencement of inquiry or trial, Magistrate finds case should be committed.If, in any inquiry into an offence or a trial before a Magistrate, it appears to him at any stage of the proceedings before signingjudgmentthatthecaseisonewhichoughttobetried by the Court of Session, he shall commit it to that Court undertheprovisionshereinbeforecontained 18. AcasualglanceoverSec.323wouldmakeitabundantlyclear if

    itappearstotheMagistrate.Thiskeyterminologywillinmyconsidered

    CRA220/13

    11

    viewwouldbedecisiveinteraliaofthepresentRevisionApplication. The expression ifitappears makeitmandatoryfortheMagistratetoforma judicialopiniononthebasisofbirds eye view of evidence,an overview based on broad probabilities. And then the Magistrate has to satisfy himself that the proceedingsmustbecommittedtotheCourtofSessions.Afterarrivingatthe subjectivesatisfaction,nothingprecludestheMagistratefromcommittingthe casetotheCourtofSessions,mayitbetriablebytheCourtofSessionsornot. ThewordenquiryascontemplatedbySec.2(g)willhavetobeundergone bytheMagistrate.Howeveritisnotamicroscopicenquirywhichshouldgive risetominitrial,rovingenquiryorthreadbareanalysisoftheevidenceon recordoritshouldnotappearthatheisholdingaminitrial. Basedonthe saidconceptandonthebasisofbroadprobability,theMagistratemustform opinionthatthecaseisfittobecommittedtotheCourtofSessions. 19.MyviewissupportedbythedecisionoftheAndhraPradeshHighCourt, inthecaseof TheState V . RajkumarSatthiandOthersreportedin1980 Cr.LJ1355(AP)whereinitisheldinpara7asbelow: Section323isageneralprovision.Itappliestoallcases triedundertheCode.ItcorrespondstoSection347ofthe oldCodeexceptthatthewords"orHighCourt"inSection 347 are deleted in Section 323. The Section confers in general terms a wide and comprehensive power on a MagistratetocommitacasetotheCourtofSessionatany stageoftheenquiryortrialbeforesigningthejudgmentif onlyitappearstohimthatthecaseisonewhichoughttobe triedbyaCourtofSession.Ifthecaseappearstobeone which is exclusively triable by a Court of Session, the Magistratehasnoalternativebuttocommitthecasetoa CourtofSessionasrequiredunderSec.209,Cr.P .C.Itis onlyacasewhichappearstotheMagistratetobeonewhich oughttobetriedbytheCourtofSessionthattheMagistrate canactunderthissectionThewords"ifitappearstohim" contemplatetheformulationofajudicialopinion.Though the discretion to commit is wide under this section, the discretionhastobeexercisedjudiciallyandnohardandfast rulecanbeenunciatedastoinwhatcasescommittalshould

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    12

    bemadeunderthissectionandinwhatothercasesitshould notbemade.Italldependsonthefactsandcircumstances ofeachcase. RelevantcaselawonS.209ofCr.P .C. 20. Atthesametime Sec.209ofCr.P .C.isalsonolessimportant 209.CommitmentofcasetoCourtofSessionwhenoffence istriableexclusivelybyit.Wheninacaseinstitutedona policereportorotherwise,theaccusedappearsorisbrought beforetheMagistrateandit appears totheMagistratethat theoffenceistriableexclusivelybytheCourtofSession,he shall (a) commit, after complying with the provisions of Section207orSection208,asthecasemaybe,thecaseto theCourtofSession,and subjectto the provisionsofthis Coderelatingtobail,remandtheaccusedtocustodyuntil suchcommitmenthasbeenmade]; (b)subjecttotheprovisionsofthisCoderelatingto bail,remand theaccused to custodyduring,and until the conclusionof,thetrial; (c)sendtothatCourttherecordofthecaseandthe documentsandarticles,ifany,whicharetobeproducedin evidence; (d)notifythePublicProsecutorofthecommitmentofthe casetotheCourtofSession 21. SignificantlyinSec.209alsotheterminologyemployedis ifit

    whichisreproducedasunderforreadyreference:

    appearstotheMagistratethattheoffenceistriableexclusivelybythe CourtofSessions. Ineednotdelvedeeptofindouttheexactmeaningof theterminologyifitappearsaswaybackinthecaseofSanjayGandhiv. UnionofIndia&Ors.,reportedinAIR1978SC514, theHon'bleApex Courthasconsideredthisaspect.Thescopeoftheprocessofsatisfactionto be directed bythe Committal Courtwas adumbrated by the Hon'ble Apex Court. Thiswillbemoreclearfrompara2ofthejudgementoftheHon'ble ApexCourt,inwhichtheHon'bleApexCourthasclearlylaiddownthatthe Magistratehasonlynarrowinspectionholeandifhegoestothemeritofthe

    CRA220/13

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    case even for a prima facie satisfaction that would frustrate Parliament's purpose in remoulding S. 207A (old code) into its present non discretionaryshape.Therelevantobservationsareexcerptedasunder: It is not open to the Committal Court to launch on a processofsatisfyingitselfthataprimafaciecasehasbeen madeoutonthemerits.Thejurisdictiononcevestedinthe CommittingMagistrateundertheearlierCodehavingbeen eliminatednowunderthepresentcode,toholdthathecan gointothemeritsevenforaprimafaciesatisfactionisto frustrateParliament'spurposeinremouldingS.207A(old code) into itspresent nondiscretionary shape. Expedition intended by this change will bedefeated successfully, if interpretatively it is held that a dress rehearsal of a trial before the Magistrate is in order. The narrow inspection holethroughwhichtheCommitteeMagistratehastolookat thecaselimitshimmerelytoascertainwhetherthecase,as disclosedbythepolicereport,appearstohimtoshowan offencetriablesolelybytheCourtofSession.If,byerror,a wrongsectionofthePenalCodeisquotedbemaylookinto thataspect. 22. Myviewisbuttressedfromthedecisioninthecaseof inthecaseof

    RajendraKumarJainetc.Vs.StateThroughSpecialPoliceEstablishment AndORS.,reportedinAIR1980SC1510whereinitwasobserved: Inthesecondplaceitmaynotbeaccuratetosaythatthe CommittingMagistratehasnojudicialfunctiontoperform underthe1973CodeofCriminalProcedure.S.209ofthe Criminal Procedure Code 1973 obliges the Magistrate to committhecasetotheCourtofSessionwhenitappearsto theMagistratethattheoffenceistriableexclusivelybythe Court of Session. Therefore, the Magistrate has to be satisfied that an offence is prima facie disclosed and the offence so disclosed is triable exclusively by the Court of Session.IfnooffenceisdisclosedtheMagistratemayrefuse totakecognizanceofthecaseoriftheoffencedisclosedis onenottriableexclusivelybytheCourtofSessionhemay proceedtodealwithitundertheotherprovisionsofthe Code. To that extent the Court of the Committing Magistratedoesdischargeajudicialfunction.

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    SoApexCourtregardedthisasjudicialfunction.S.209ofthe

    code lays downthatif the Magistrate isof the exfacie opinion about the prima facie disclosure of the offence exclusively triable by the Court of Sessions,thenandthenonlyhehastocommitthecase,otherwisehemay proceedtodealwiththecaseundertheprovisionsoftheCode.Thatwasthe extentstatedofjudicialfunction tobedischargedbytheMagistrate.Same view was echoed by the Bombay High Court in the case of State Of MaharashtravsKaliEduljiVaidreportedin1998AllMRCri486 . The relevant observations are reproduced below for the kind perusal of Your Lordships: ThoughitcanbesaidthattheMagistrateisnotamere postoffice inthecommittalcaseandthattheMagistrate hasgotcertaindiscretionarypowerswhichhecanexercise underSection209ofCr.P .C.thequestionarisesinthiscase istowhatextentthis discretion canbeexercisedbythe Magistrate. According to me that discretion cannot be extendedtothelevelofappreciationofthematerialsand cometoadifferentconclusion.Inotherwords,hecannot embark upon the task of evaluating the materials or drawinghisowninferences,otherthanmaterialsdisclosed tohim.ThelimiteddiscretionthatMagistratecanexercise isthatinacasewherefromtherecordsbeforehimonthe face of it, if he can come to the conclusion other than prosecutionalleged,hecanexercisediscretionandconvert thechargeordischargetheaccused.Butthisdiscretionas Iobservedearlieristravellinginaverynarrowcompass. His decision can be rested only on an appraisal of the materialsapparentonthefaceofrecord. 24. ThisissufficienttoholdthatthesatisfactionoftheMagistrate

    mustbebased on,on the face ofrecordandnothairsplittingenquiryis contemplatedbySec.209ofCr.P .C. 25. ThesameviewwastakenbytheHon'bleHighCourt,Bombayin

    whichreliancewasalsoplacedonthedecisioninthecaseofBholenathJ.

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    DhamankarV .StateofMaharashtra1995Cr.LJ1029(BOM)inthisbehalf whereinthedecisionoftheApexCourtwasrelieduponinthecaseofStateof U.P .v.LakshmiBrahmanreportedin AIR1983SC439.TheApexCourt observed: Now, if under Sec. 207, the Magistrate is performing a judicialfunctionofascertainingwhethercopieshavebeen suppliedornot,itwouldundoubtedlybeaninquiryforthe purpose of satisfying himself that Sec. 207 has been compliedwithinletterandspirit.Thatsatisfactionhastobe judicial satisfaction. It is not a trial but something other thanatrialandbeingjudicialfunctionitwouldnecessarily be an inquiry. The making of an order committing the accusedtotheCourtofSessionwillequallybeastageinthe inquiryandtheinquiryculminatesinmakingtheorderof commitment. 26. TheaforesaidcaselawofHon'bleApexCourthasreferredtothe

    caseof DivisionBenchRulingofourHon'bleHighcourttounfoldthevery purposebehindthisinquiryinthecaseof RiyazHusseinKadarHusseinv. State of Maharashtrareported in III (1993) CCR 2317 (DB) (Bombay.). TheDivisionBenchobserved: "Section209oftheCr.P .C.hasbeenintroducedbythenew CodeofCriminalProcedureanditprovidesforcommitment ofacasewhichisexclusivelytriablebyaCourtofSession. AreadingofSection209oftheCodewouldshowthatitis selfcontained Code. The object of inquiry under this Sectionistwofold,firstlytopreventthecommittalofcases inwhichtherewasnoreasonablegroundforconvictionso asto,on one handsave the accusedfromthe prolonged anxietyofundergoingatrialforoffencesthatcouldnotbe broughthometohimandontheotherhandsavethetime oftheCourtbeingwastedovercasesinwhichtheevidence would obviously not justify a conviction. Section 209(b) alsoempowersthe Committing Magistrateto remand the accusedtocustodyduringanduntiltheconclusionofthe trialsubjecttotheprovisionsofCoderelatingtobail.No specificformofwarranthasbeenprescribedunderSection 209,Cr.P .C.,whileremandingaccusedtojudicialcustodyat the time of commitment of the case. No reasons are requiredtobeassignedforremandingtheaccusedtojail

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    custody till the conclusion of the trial. The provisions of Clause(b)ofSection209,thus,veststheMagistratewitha power to authorise the detention of an accused in jail custodyduringanduntiltheconclusionofthetrialwhile committinghimtostandhistrialbeforetheSessionsCourt. Insuchacaseeventhoughallfurtherproceedingsareto takeplacebeforetheCourtofSessionandnoproceedings aretotakeplacebeforetheMagistrate,thedetentionofthe accusedinjailcustodycanbeauthorisedbytheMagistrate whocommitsthecasestoSessions." 27. It is thus very much clear that scrutiny which should be

    undertakenbyaMagistrateshouldnotnecessarilybeelaborateormeticulous enquirybutitshouldbedirectedtoprobewhetherthematerialisadequateto committheaccusedtotheCourtofSessions. 28. Itisprofitabletohaveaglanceoverthedecisionofthe Hon'bleHigh CourtofRajasthanreportedin2006Cr.L.J4344,inthecaseofBheruSingh V .StateofRajasthan&Ors.,whereinitwasheldthat: AssoonasitstrikestotheMagistratejudiciallythatthe caseisripenforcommittalheloseshisgripoverthecase andhasnooptionbuttocommitthecase. Awordmaybe saidaboutthelanguageofthesectionalso.Itisimportantto notethatthesectionsignificantlypresupposesandinheresa condition that, it appears to him at any stage of the proceedingsbeforesigningjudgmentthatthecaseisone whichoughttobetriedbytheCourtofSession"which only shows that the moment the Magistrate judicially perceivesthatthecaseshouldbecommittedtotheCourt ofSessiontheMagistratelosesjurisdictiontoentertain andtrythecase. 29. VeryrecentlytheHon'bleApexCourtinthecaseofAjayKumar Parma v. State of Rajasthan, reported in AIR 2013 SC 633 i.e. Bench

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    presided over by three Judges has given salutary guidelines in respect of committalofcasetotheCourtofSessions. 30. Theobservationstherein willalsovisualisetheschemeofthe

    CodeandthescopeandambitofdeterminationbytheMagistrateofthefacts statedinthereportwhethermakeoutoffenceexclusivelytriablebytheCourt ofSessions.TheHon'bleApexCourthasgonetothestagethatifthecaseis exclusivelytriablebytheCourtofSessionsinacaseinstitutedbythepolice, committalthereofbytheMagistrateismandatory.Theaforesaidcaselawof Hon'bleApex Courtinthecaseof AjayKumar makesthispositionoflaw abundantlyclear.Therelevantobservationsareasunder: TheschemeoftheCode,particularly,theprovisionsof Sections207to209Cr.P .C.,mandatetheMagistrateto commit the case to the Court of Sessions, when the chargesheet is filed. A conjoint reading of these provisionsmakeitcrystalclearthatthecommittalofa case exclusively triable by the Court of Sessions, in a caseinstitutedbythepoliceismandatory.Theschemeof theCodesimplyprovidesthattheMagistratecandetermine, whetherthefactsstatedinthereportmakeoutanoffence triableexclusively,bytheCourtofSessions.Oncehereaches theconclusionthatthefactsallegedinthereport,makeout anoffencetriableexclusivelybytheCourtofSessions,he mustcommitthecasetotheSessionsCourt. 31. AsIindicatedhereinbeforethatevenifthecasemaynotbe

    exclusivelytriablebytheCourtofSessionsiftheMagistrateformsanopinion thatitoughttobecommittedtotheCourtofSessionsitisopenforhimto passtheorderofcommittal.ThisviewwastakenbytheHon'bleHighCourt, Bombayinthecaseof BabaAbdulKhanS/ODaulatKhan&OrsV .Smt. A.D.Sawant,J.M.F.C.,reportedin1994Cri.L.J.2836.Therelevantparais asunder: Thus,fromreadingtheprovisionsofSections322to325of theCriminalProcedureCode,itisseenthat(1)ifitappears to the Magistrate from the facts disclosed in the police

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    reportandotherevidencethathewillnotbeabletoinflict adequatepunishmentinthecaseand,thus,thecaseought to be tried by the Chief Judicial Magistrate, he is empowered to submit the case to the Chief Judicial Magistrate under S. 322 of Cr.P .C.; (2) if the Magistrate, afterclosingoftheevidenceofboththeparties,findsthe accusedguiltyandthinksthattheaccusedoughttoreceive apunishmentdifferentinkindorseverethanthatwhichhe isempoweredtoinflict,heisempoweredtosubmitthecase to the Chief Judicial Magistrate, under section 325 of Cr.P .C.;(3)ifontheotherhand,itappearstotheMagistrate atanystageofthetrialbeforesigningthejudgmentthatthe caseisonewhichoughttobetriedbytheCourtofSession (whohasconcurrentjurisdiction),heshallcommitthecase totheCourtofSessionundersection323oftheCriminal ProcedureCode. Considering the specific provisions referred above, it is expected from the trial Court to exercise the discretion judicially after considering the circumstances of the case, thegravityoftheoffenceandthepunishmenttobeinflicted uponconviction. Itis,thus,clearfromtheaboveprovisionsthattheJudicial Magistrate, First Class is empowered to transfer the case either to the CourtofChief Judicial Magistrate or to the SessionsCourt.InacaseofShivDuttSalwanv.TheState, (1984)1Crimes470(2),thelearnedJudgeobservedthat Section 323 of the Cr.P .C. gives a wide discretion to the Magistratewhichshould be exercisedjudiciouslyandnot uponamererequestofaparty.Heshouldhaveadequate reasonforsendingapersontostandtrialbeforeaCourtof Session for an offence which he could himself try. The learned Judge has considered various cases in which the concurrentjurisdictionoftheJudicialMagistrateasalsoof the Chief Judicial Magistrate to transfer the cases to the superior Court under particular circumstances, are discussed.

    32.

    In a case of Krishnaji Prabhakar Khadilkar v. Emperor AIR

    1929Bom313:(1929(30)CriLJ1090)itisheld:

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    "Havingregardtotheseriousnessoftheoffenceandpublic importanceofthecase,committaltoaCourtofSessionis directed." 33. Theterminology itappears alsocameupforinterpretation

    beforeHon'bleAllahabadHighCourtinthecaseof JimedarYadavVs.State ofU.P .&Anr.,reportedin2010CR.L.J.3613.TheCourtalsoreferredsupra BheruSinghV .StateofRajasthan&Ors reportedin 2006Cr.L.J4344. TheCourtheldthattheMagistrateisrequiredtogivereasonsfortakinga viewthatthecaseoughttobecommittedtotheCourtofSessions.TheCourt alsoheldthatthepowersU/s.323ofCr.P .C.arewideinnatureandthough notexclusivelytriablebyCourtofSessionsifintheopinionoftheMagistrate thecaseshouldbetriedbythecourtofSessions,theMagistratemaycommit thecasetotheCourtofSessionsandthepowersarenotcircumscribedtoany extent.IntheopinionoftheCourtthewordappearsmeansseemsorto beinone'sopinion anddoesnotmean satisfied. Soeventhecourthas made the distinction between forming the opinion and achieving the satisfaction.Inthatcase,thecourtfoundthattherewasprimafacieevidence forcommittalandwithoutmakinganyreappraisaloftheevidence,thecourt adjudicatedtheCriminalRevisionPetitionandultimatelyevendismissedthe same. 34. IammindfulofthedecisionoffourJudgesBenchoftheHon'ble

    ApexCourtinthecaseofChhadamilalJainandothersv.StateofU.P ..and another,reportedinAIR1960SC41.Thepropositioninthiscasenodoubt fullysupportsthesubmissionadvancedbytheLd.AdvocateShriMundargifor applicant/accused thatbecausenodefencewitnesseswerepermittedtobe examined the accused has been seriously prejudiced in his defence and thereforethecommittalorderisvitiated. TheHon'bleApexCourtobserved thatchargeframedwithoutgivinganopportunitytotheaccusedtoadduce defenceevidenceandwhennointimationwasgiventotheaccusedofhis

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    intentiontocommit,thecommittalorderthatwaspassedwasillegalandhas prejudiced the accused. I have especially in view of this judicial pronouncementofthelargerBenchoftheHon'bleApexCourt,haveperused Sec.207toSec.209ofoldCodeofCr.P .C.,1860. However,itisunnecessary for me to excerpt the bare text of the same as in supra decision of Chhadamilalreported inAIR1960SC41itselftheHon'bleApexCourthas clarifiedinpara9thatbyvirtueofSec.208ofCr.P .C.ofoldCodetheaccused hasrighttoproducethedefenceevidence.HowevertheschemeoftheNew Codeof1973simplyprovidesthattheMagistratecandetermine,whetherthe factsstatedinthereportmakeoutanoffencetriableexclusively,bytheCourt of Sessions.This was enunciated by the Apex Court in supra Ajay Kumar Parmar'scaseandattheblameofrepetionImustexcerptthesaidobservations whichreadasunder: 13. The scheme of the Code, particularly, the provisions of Sections 207 to 209 Cr.P.C., mandate the Magistrate to commit the case to the Court of Sessions, when the chargesheet is filed. A conjoint reading of these provisions make it crystal clear that the committal of a case exclusively triable by the Court of Sessions, in a case instituted by the police is mandatory. The scheme of the Code simply provides that the Magistrate can determine, whether the facts stated in the report make out an offence triable exclusively, by the Court of Sessions. Once he reaches the conclusion that the facts alleged in the report, make out an offence triable exclusively by the Court of Sessions, he must commit the case to the Sessions Court. 35. ThereisstillyetanotherdecisionoftheHon'bleApexCourtin

    respectofthesubjectconsiderationi.e.thecaseofSajjanKumarv.Central BureauofInvestigationreportedinSC[JT2010(10)SC413].Whatare theparametersforthecommittalofthecasetotheCourtofSessionswere adumbratedbytheHon'bleApexCourt.IntheclearviewoftheHon'bleApex Courtiftheevidencebywhichtheguiltoftheaccusedissoughttobeproved isfullyacceptedbeforeitschallengeincrossexaminationorrebuttedbythe defenceevidencecannotshowthattheaccusedcommittedtheoffencethen

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    therewillnotbesufficientgroundforproceedingwiththetrial.Therelevant para19readsasunder: It is clear that at the initial stage, if there is a strong suspicion which leads the Court to think that there is groundforpresumingthattheaccusedhascommittedan offence,thenitisnotopentothecourttosaythatthereis nosufficientgroundforproceedingagainsttheaccused.The presumption of the guilt of the accused which is to be drawnattheinitialstageisonlyforthepurposeofdeciding primafaciewhethertheCourtshouldproceedwiththetrial ornot.Iftheevidencewhichtheprosecutionproposesto adduceprovetheguiltoftheaccusedeveniffullyaccepted beforeitischallengedincrossexaminationorrebuttedby thedefenceevidence,ifany,cannotshowthattheaccused committed the offence, then there will be no sufficient groundforproceedingwiththetrial 36. REASONS This is the clear indica of the legal exposition that if the

    prosecution evidence is insufficient to commit the case to the Court of Sessions even before the crossexamination or rebuttal evidence by the defence, the Magistrate is not bound to commit the case to the Court of Sessionsandviceversa.Thisnullifiesthesubmissionoftheld.AdvocateShri Mundargifortheapplicant/accusedthatthecommittalorderpassedwithout takingintoaccounttheeffectofcrossexaminationofRavindraPatilPW1and PW14Asst.ChemicalAnalyzerDattatrayBalshankarorotherwitnessesand sincenoopportunitywasgiventotheaccusedtoleadtheevidenceofdefence witness,thecommittalorderhasbeenrenderednugatory.Ifindabsolutelyno substance in this submission in the light of the above judicial pronouncements. 37. TheHon'bleApexCourtobservedinsupraSajjanKumar'scase

    thatifthereis 'someevidence' onwhichtheconvictionmaybereasonably based,theMagistratemustcommitthecase. TheHon'bleapexCourtalso observedthattheMagistrateshouldnotmake rovingenquirytothepros

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    and cons of the matter. The Hon'ble apex Court also observed that a MagistrateenquiringintoacaseunderSection209oftheCr.P .C.isnottoact asamerePostOfficeandhastocometoaconclusionwhetherthecasebefore himisfitforcommitmentoftheaccusedtotheCourtofSession.TheHon'ble apexCourtalsoobservedthatheisentitledtosiftandweighthematerialson record, but only for seeing whether there is sufficient evidence for commitment,andnotwhetherthereissufficientevidenceforconviction.The Hon'bleapexCourtalsoobservedthatifthereisnoprimafacieevidenceor theevidenceistotallyunworthyofcredit,itisthedutyoftheMagistrateto dischargetheaccused.Ontheotherhand,ifthereissomeevidenceonwhich theconvictionmayreasonablybebased,hemustcommitthecase.Itisalso clear that in exercising jurisdiction under Section 227 of Cr.P .C., the Magistrateshouldnotmakearovingenquiryintotheprosandconsofthe matterandweightheevidenceasifhewasconductingatrial. 38. If the submission of the ld. advocate Shri Mundargi for the

    applicant/accusedthatcrossexaminationoftheprosecutionwitnessesshould betakenintoconsiderationandalsothesubmissionthatthedefencewitness shouldhavebeenallowedtobeexaminedbytheMagistrateis entertained thenthatwouldtantamounttoholdinga'MiniTrial'andthentheexpression 'appears',employedinSec.209aswellasSec.323ofCr.P .Cwouldbecome deadlettersonthestatutebook.Suchameticuloustaskorfinetuningofthe evidenceatthestageofcommittalorderisnotcontemplatedbylaw. The intention as well as wisdom of the Legislature is discernible from the terminology in Sec. 209 as well as Sec.323 of Cr.P .C. by employing 'it appears'.Ifthedefencewitnesseswouldhavebeenallowedtocomeintothe picture and if the critical analysis of the evidence on the basis of cross examinationoftheprosecutionwitnesseswouldhavebeenundertakenand ventured by the Magistrate then that would have been the full fledged enquiry. AsthesameiscontrarytotheintentionoftheLegislatureandthe

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    same would have frustrated the Legislative intent, the same is not permissible.ThatiswhyunlikeoldCodeespeciallyasinSecs.207and208of Cr.P .C.wefindnoprovisionenablingtheaccusedtoleadevidenceinthenew CodeofCr.P .C.,1973.BythenewCodeof1973bySec.209,theintentionand wisdom of Legislature in deliberately omitting the right of the accused to examinethedefencewitnessismanifestandthereforetheexpressionusedis 'itappears'. 39. NowIshalladverttothenextgrievanceoftheld.advocateShri

    Mundargifortheapplicant/accusedthatallthewitnessesarenotexamined. Firstlyassubmittedbytheld.APP ,theprosecutionsummoned31witnesses. However,itcouldonlyprocuretheevidenceofalreadyexaminedwitnesses i.e. 17 witnesses. Secondly it is borne out from the above judicial pronouncementsthatthesatisfactionofaJudgeaboutcommittalofacaseisa crucialoneandifsuchsatisfactioncanbeachievedandwellfoundedonthe basis of available evidence then seeking multiplication of witnesses of the witnesseswouldbeafutiletask.Itisneedlesstomentionherethatitiswell acknowledgedprinciplesoflawthatitisthequalityandnotthequantityof thewitnesseswhichismaterialforthepurposeofappraisalofevidence.That iswhyinsuprain BheruSinghV .StateofRajasthan&Ors., reportedin 2006Cr.L.J4344itwasclearlyobservedthatinthemomenttheMagistrate arrivesatthesatisfactionandformsajudicialopinionthatthecasehastobe committedtotheCourtofSessions,helosesthecontrol. 40. Anothergrievanceoftheld.advocateforapplicant/accusedis

    thattheMagistratehasnotsuomotoarrivedatsuchaconclusion.Itmaybe thatattentionoftheMagistratemayhavebeeninvitedbytheprosecution.But thefactremainsthattheMagistratehasformedajudicialopinioninrespect ofthecommittalofthecase.Ifhehasformedjudicialopinionthenitmakes no difference whether suo moto has he formed or at the instance of the

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    prosecution. Significantly when the prosecution moved the Court for the committalofthecase,andtheMagistrateformedajudicialopinion,thecase becomescoveredbythedictumlaiddownsuprainthecaseof AjayKumar Parmari.e.asitwasthecaseinstitutedbythepolicereportthecommittalof acase,astheoffencefoundwasexclusivelytriablebytheCourtofSessions wasasinequanon. 41. EveninthecaseofHemChandV.StateofJharkhandreportedinAIR

    2008SC1903,theviewwastakenthatatthestageofframingofcharge,the Courthastoformprimafaciesatisfactionwhetherthereissufficientground forproceedingandappraisaloftheevidenceisnotcalledfor.TheCourtalso observedthateveniftheprosecutionevidenceisfullyacceptedbeforeitis challenged by the crossexamination or rebutted by the defence evidence cannotshowthattheaccusedcommittedaparticularoffencethenthesame canbequashed.Thecourtordinarilywouldnotconsiderastowhetherthe accused would be able to establish his defence. Mutatis mutandis these observations principlewise would aptly apply to the instant case. The relevantobservationsareasunder: The Court at the stage of framing charge exercises a limitedjurisdiction.Itwouldonlyhavetoseeastowhether aprimafaciecasehasbeenmadeout.Whetheracaseof probableconvictionforcommissionofanoffencehasbeen made out on the basis of the materials found during investigationshouldbetheconcernoftheCourt.It,atthat stage,wouldnotdelvedeepintothematterforthepurpose ofappreciationofevidence.Itwouldordinarilynotconsider astowhethertheaccusedwould be abletoestablishhis defence,ifany. ScopeofRevision 42. ThesimilarcontroversycamebeforethreeJudges'Benchofthe Hon'bleApexCourtinthecaseofStateofOrissaVs.DebendraNathPadhi reportedin 20051SCC568. TheCourtoverruledthedecisionin Satish Mehra v. Delhi Administration (Manu/SC/1580/1996) holding thatthe

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    trialCourthaspowertoconsidereventhematerialwhichtheaccusedmay produce. Sufficeittosaythatthecourtmustrestrictitselftoexaminethe legality,proprietyandcorrectnessoftheorderunderchallenge. Itiswell settledthatthecourtshouldnotinterferewiththeimpugnedorderunlessit resultsintomiscarriageofjusticeandunlessitisperverse.Howeverquathe courtofappeal therevisional courtcannotreappreciate andsubstitute its view.Inthatviewofthematter,thescopeoftherevisionaljurisdictionisa limitedone. 43. IambuttressedinmyviewfromthedecisionoftheHon'bleHighCourt

    ofBombay,NagpurBench,firstlyinthecaseof Purushottams/oSitaram RautV .TheStateofMaharashtrareportedin2007ALL M R CRI 1808 whereinitisheldasunder: Thescopeofrevisionisverylimited.Thecourtisnot supposedtoreassesstheevidenceunlessitisshownthatthe approachofthecourtsbelowwasperverseorthatsome illegalityiscommitted.Thereareconcurrentfindingsofthe courtsbelow.Bearinginmindthis,therevisionhastobe decided. 44. SimilarlyitwasobservedbytheHon'bleHighCourtofBombay,

    NagpurBenchinthecaseofSmt.Anitaw/oAnandTambeV .TheStateof Maharashtra,reportedin2007ALLMRCRI1807,asunder: Thescopeofrevisionisverylimited.Thecourtcanonly lookintotheproprietyandlegalityoftheorder. 45. TheHon'bleApexCourthasobservedinthefollowingcasethat

    unless there is manifest illegality, the court would not be justified in interfering in the Revisional jurisdiction. It was observed in the case BindeshwariPrasadSinghaliasB.P .Singhandothersv/s.StateofBihar (nowJharkhand)andanotherreportedin(2002)6SCC650,asunder: Theinstantcaseisnotonewhereanysuchillegalitywas committed by the trial court. In the absence of any legal infirmityeitherintheprocedureorintheconductofthe

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    trial, there was no justification for the High Court to interfere in exercise of its revisional jurisdiction. It has repeatedly been held that the High Court should not re appreciatetheevidencetoreachafindingdifferentfromthe trialcourt.Intheabsenceofmanifestillegalityresultingin grave miscarriage of justice, exercise of revisional jurisdictioninsuchcasesisnotwarranted. 46. AsIindicatedthatunlesstheorderisperverse,thecourtshould

    notinterfereandalthoughtwoviewsarepossibleonthebasisofevidenceon record, the higher court should not disturb the opinion of the trial court. ThereareweightyobservationsoftheHon'bleHighCourtofBombayinwhich reliancehasbeenplacedevenonthedecisionofHon'bleSupremeCourt.In thecasereportedin 2008ALLMRCRI1538,PrakashSomnathBoob V/s. JaiprakashBadrinarayanRathiandOrs.,itwasheldinpara19asunder: 19.Havingsaidso,itistruethatthejurisdictionofthis Courtwhileentertainingcriminalrevisionislimitedwhichis recognised by this Court and also by the Apex Court in numberofdecisions.Readilyavailabledecisionisinthecase ofC.P .Fernandesv.UnionterritoryofGoa,Daman&Diu,AIR 1977 SC 135,whereinthe ApexCourthasruled thatthe CourtshouldnotinterferewiththetrialCourtviewunless found to be unreasonable or perverse. If two views are possibleonthebasisofevidenceonrecord,thehigherCourt shouldnotdisturbthefindingsofthetrialCourt.Thesame principle is reiterated in the case of Varghese Thomas v. StateofKerala,1977SC701. 20. This Court not being a Court of appeal cannot reappreciateandsubstituteitsviewinexerciseofrevisional jurisdiction. Revisional jurisdiction is not only limited in scope but discretionary. The Court interferes in the revisionaljurisdictiononlyinexceptionalcasesofflagrant miscarriageofjusticeasheldbyApexCourtinthecaseof StateofRajasthanv.GurucharandasChaddha,AIR1979SC 1895.Nosuchcaseismadeoutbytheapplicant. 21.InthelightofthelawlaiddownbytheApex Court,ifoneturnstotheevidence,itisnotpossibletocome to the conclusion that the impugned order is perverse or that the Court below has committed any illegality in appreciatingtheevidencesoastomisdirectitselftoacquit accused persons. In my opinion, the evidence has been

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    rightlyappreciatedbytheCourtbelow.Theviewtakenisa reasonable and possible view, which can very well be sustainedonthebasisofevidenceavailableonrecord.In the above view of the matter, no case is made out to interferewiththeimpugnedorder. 47. In other words, the revisional jurisdiction is akin to the

    jurisdictionofmonitoringjurisdictiontofindoutwhethersubordinatecourt hasexercisedthejurisdictionvestedinitorfailedtoexercisethejurisdiction vestedinit. Inotherwords,thelegalityandproprietyshouldonlybethe targetoftherevisionalcourt.ThiswillbecrystalclearfromtheHon'bleApex Court'sdecisioninthecaseofAssociatedCementCo.Ltd.vs.Keshvanand reportedinAIR1998SC596,whereinfinedistinctionbetween'appeal' and'revision'wasmade.Itwasheldinparas10&11asunder: 10. It appears that learned single Judge has equated appellatepowerswithrevisionalpowers,andthatthecore difference between an appeal and a revision has been overlooked. It is trite legal position that appellate jurisdictioniscoextensivewithoriginalCourt'sjurisdiction asforappraisalandappreciationofevidenceandreaching findingsonfactsandappellateCourtisfreetoreachitsown conclusion on evidence untrammelled by any finding enteredbythetrialCourt.Revisionalpowersontheother handbelongtosupervisoryjurisdictionofasuperiorcourt. WhileexercisingrevisionalpowerstheCourthastoconfine to the legality and propriety of the findings and also whether the subordinate Court has kept itself within the bounds of its jurisdiction including the question whether theCourthasfailedtoexercisethejurisdictionvestedinit. Though the difference between the two jurisdictions is subtle,itisquiterealandhasnowbecomewellrecognised inlegalprovinces. 11.InStateofKeralav.K.M.ChariaAbdullah&Co.,AIR 1965SC1585,thisCourthashighlightedthedifference betweenthetwojurisdictionsinthefollowingwords(para 5): "Thereisanessentialdistinctionbetweenanappealanda revision.Thedistinctionisbasedonthedifferencesimplicit inthesaidtwoexpressions.Anappealisacontinuationof

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    theproceedings;ineffecttheentireproceedingsarebefore the appellate authority and it has power to review the evidencesubjecttothestatutorylimitationsprescribed.But in the case of a revision, whatever powers the revisional authority may or may not have, it has not the power to reviewtheevidenceunlessthestatuteexpresslyconferson itthatpower."(Emphasissupplied) 48. Keepinginviewthisyardstickifthecourtproceedsfurtherthen

    thedecisioninsupraNageshwarShriKrishnaGhobe,reportedin(1973)4 SCC 23 relied upon by the ld. advocate Shri Mundargi for the applicant/accused is wholly misconceived. In that case PW8 was an interestedwitnessaswellascloserelativeofthedeceased. Inthepresent case,thestarwitnessPW1RavindraPatilisastaffmemberfromthepolice departmentwhowasemployedasasecurityguardfortheaccused. Byany stretchofimagination,hecannotbecolouredasapartisanwitnesssoasto stylehimasaninterestedwitness. 49. Secondlytheincidenthadoccurredafter2.15a.m..Ordinarily

    atthattimetheentirecityofMumbaimightbeundertheinfluenceofsleep. Inthatviewofthematter,itishardtodigestthattheprosecutionhadany otherwitnessinitsarmourytoproduceinasmuchas,aspertheownstoryof the prosecution when the people gathered after the fateful incident, the culprithadmadehisescapegoodandthereforeneithertheinjurednorthe peoplegatheredone canperceive musthaveanyopportunitytoviewthe culpritorthescenario. 50. If that is so, then the action of the ld. Magistrate in placing

    relianceonthetestimonyofPW1RavindraPatilcannotbefaulted.Againit iswellsettledlawthatifthetestimonyofthesinglewitnessisofsterling qualityandanchorsheetofevidence,trustworthyandreliable,thenthecourt shouldnotsearchformultiplicationbywayofcorroboration. TheHon'ble

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    ApexCourtinthedecisionreliedbytheld.advocateShriMundargiforthe applicant/accused in supra Nageshwar Shri Krishna Ghobe, reported in (1973)4SCC23disbelievedevidenceofPW8notonlybecausehewasthe close relative or interested witness but because his evidence is fully discrepant. 51. NodoubtitisadmittedbythestarwitnessPW1RavindraPatil

    in the crossexamination that the fact that the accused was in drunken conditionwasnotstatedbyhimintheFIR(whichiscalledascomplaintinthe ordinaryparlance).Hehasalsoadmittedthefactthatheaskedtheaccused beforetakingtherightturntoscaledownthespeedhasnotbeenmentioned in the FIR. The contradictions as above are the two fatal infirmities accordingtotheld.advocateShriMundargiwhichshouldhaveresultedinto rejectionoftheapplicationmadebytheprosecutiontocommitthecaseto thiscourt. 52. TheFIRneednotbeencyclopediaisthewellsettledpositionof

    law. FirstlythismaybeculledoutfromthedecisionoftheHon'bleApex CourtinthecaseofSuperintendentofPolice,C.B.I.andothersvs.Tapan KRSinghreportedinAIR 2003 SC 4140 inwhichitwasobservedthatFIRis notanencyclopediawhichmustdiscloseallthefactsanddetails.Nodoubt thesignificantomissionsintheFIRmayberelevantinlinewithSec.11of EvidenceActbutsincethecourthasnottoundertakeasperthesuprajudicial pronouncementsmeticulousenquiryinrespectofthematterunderchallenge, theeffectofthesaidomissionsifanywillhavetobelefttobedecidedinthe fullfledgedtrialandtheactionoftheld.Magistratecannotbefaultedonly because he has not considered the effect of crossexamination of PW1 RavindraPatil. 53. AsIindicatedthattheprosecutionisnotexpectedtobringthe evidenceofimpossiblecharacterthesameisequallywellborneoutfromthe

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    decision relied upon by the ld. advocate Shri Mundargi for the applicant/accusedinsupra Nageshwar Sh. Krishna Ghobe,AIR 1973 SC 165. Thebootisratherontheotherleg. EventheHon'bleApexCourtobserved thatintheroadaccidentsbyfastmovingvehicles,itisdifficulttofindwitness whowouldbeinapositiontopossiblyaffirmthesequenceofvitaleventsifit isduringthefewmomentsimmediatelyprecedingtheaccident.Para6which isreproducedherewouldmakethispositionverymuchclear. 6. In cases of road accidents by fast moving vehicles it is ordinarily difficult to find witnesses who would be in a position to affirm positively the sequence of vital events during the few moments immediately preceding the actual accident, from which its true cause can be ascertained. When accidents take place on the road, people using the road or who may happen to be in close vicinity would normally be busy in their own pre-occupations and in the normal course their attention would be attracted only by the noise or the disturbance caused by the actual impact resulting from the accident itself. It is only then that they would look towards the direction of the noise and see what had happened. It is seldom - and it is only a matter of co-incidence - that a person may already be looking in the direction of the accident and may for that reason be in a position to see and later describe the sequence of events in which the accident occurred. At times it may also happen that after casually witnessing the occurrence those persons may feel disinclined to take any further interest in the matter, whatever be the reason for this disinclination. If, however, they do feel interested in going to the spot in their curiosity to know some thing more, then what they may happen to see there, would lead them to form some opinion or impression as to what in all likelihood must have led to the accident. Evidence of such persons, therefore, requires close scrutiny for finding out what they actually saw and what may be the result of their imaginative inference. Apart from the eye-witnesses, the only person who can be considered to be truly capable of satisfactorily explaining as to the circumstances leading to accidents like the present is the driver himself or in certain circumstances to some extent the person who is injured. In the present case the person who died in the accident is obviously not available for giving evidence. The bhaiya (Harbansingh) has also not been produced as a witness. Indeed, failure to produce him in this case has been the principal ground of attack by Shri Pardiwala and he has questioned the bona fides and the fairness of the prosecution as also the trustworthiness of the version given by the other witnesses.

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    Thereforewecanvisualizethesituationandfetterswithwhich the prosecution was surmounted and therefore it is extremely difficult to blametheprosecutionforeitherhavingnotproducedanymorewitnessdue toinabilityoftheprosecutiontofindthemoutormaybeduetoapathyofthe witnesstocomeforwardbeforethecourttodisclosetheunvarnishedtruthfor oneorotherreason. Afterrecess.....intheopencourt...... 54. Much ado is made by the accused of the fact that the Ld. MagistratehasnotconsideredtheeffectofMediaInterviewgivenbythestar witnessRavindraPatiltotheMidDaynewspaperon30/9/2002statingthat theaccusedshouted'gaadinahighoomrahi'andthereforeimmediatelylost controlofthevehicleanditrammedintoAmericanExpressCleaners. The ferventattemptoftheld.advocateShriMundargifortheapplicant/accusedis that the accused strived to steer the car away from the American Express Cleaners and therefore there is no even the remotest possibility of the invocationofthechargeU/s.304(II)ofIPCagainsttheaccused. Inother words, according to the ld. advocate the steering wheel of the car was jammedduetowhichthecarcouldnotturnandthereforeitissheerlyan accident,unintentionaloneandthereforealsoSec.304(II)ofIPCshouldnot havebeenattracted. FirstlywhatevertheMediaInterviewmighthavebeen givenbyRavindraPatilthestarwitnessoftheprosecutionmaybetreatedasa defenceoftheaccused.AsindicatedaboveaspertheverdictoflargerBench oftheHon'bleApexCourtinsupraAjayKumarParmav.StateofRajasthan, reported in AIR 2013 SC 633, at the stage of committal it was not permissible for the court to examine the weightage of defence evidence. Therefore, if at all the ld. Magistrate had considered the fact of alleged steering wheel getting jammed rather on that count alone hisorder could havebeencriticizedbeingillegal.Thisisoneaspectbutnotall. 55. SofarastheMediaInterviewisconcerned,widepublicitywas givento the issue under consideration and the interview wasarranged by

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    police.WhetherstatementsgiventotheMediaintheinterviewtakenbythe journalistsorreporterswouldamounttoanevidencewhichcanbeconsidered bythecourtisnotthequestionthathasbeencroppedupbeforethiscourtat this juncture. However, once the defence of the accused is not to be considered as per supra observations of the Hon'ble Apex Court in Ajay KumarParmav.StateofRajasthan,reportedinAIR2013SC633thenat thisjunctureexfacietomymindwhateverstatementsmighthavebeengiven bythestarwitnessoftheprosecutionShriRavindraPatilbecomeinsignificant andcannotbeconsidered. 56. Overandaboveinthisbehalfitisusefultorefertothefamous case of Parliament in the case of State (N.C.T. OF DELHI) Vs. Navjot Sandhu@ Afsan Guru reported in AIR 2005 SC 3820. In the similar situationtheHon'bleApexCourtwasinclinedtogivenoweightagetothe MediaInterview.Therelevantobservationsareasunder: Wearenotpreparedtoattachanyweightorcredibilityto thestatementsmadeinthecourseofsuchinterviewpre arranged by the police. The police officials in their over zealousness arranged for a media interview which has evoked serious comments from the counsel about the manner in which publicity was sought to be given thereby. We think that the wrong step taken by the policeshouldnotenuretothebenefitordetrimentof eithertheprosecutionortheaccused. Therefore according to the Hon'ble Apex Court the said statementswouldnotenureeithertothebenefitofprosecutionordetriment oftheaccusedorviceversa.Thesameanalogyafortioriappliestotheinstant case.Therefore thiscircumstance is notatall profitable to the accused to advancehiscase.Atanyratethisaspectmaybetterbelefttothefullfledged trial. 57. Nowwhatistheeffectofthesupplementarystatementdated 1/8/2002ofRavindraPatilmustnecessarilybelefttothefullfledgedtrialas,

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    ifthecourtadvertstothatissuethenthatwouldbeasiftheintrinsicmeritsof thecasearegoneintoandadjudicatedatthestageatwhichthesaiddecision isnotwarranted. 58. The ld. Magistrate has considered the evidence of PW1

    Ravindra Patil showing that on 27/9/2002 he was attached to Security Departmentandwasassignedthejobquasecurityguardoftheaccused.He has also considered the evidence of Ravindra Patil that the accused was drivinghiscarLandCruiserandatthattimehewasundertheinfluenceof liquor.Hisevidencethatthecarwasdrivenatthespeedof90to100Kmp.h. hasalsobeenconsideredandthefactthatherequestedtheaccusedtoreduce thespeedatthejunctionofHillRoadasrightturnwastopassisalsotaken intoaccount.However,theaccusedneglectedthesameandcouldnotcontrol thecarduetowhichthecarwentonfootpathwhereseveralpeoplewere sleepingonfootpathisalsotakenintoaccount. TheevidenceofRavindra Patilthatthecarclimbedthreestepsandgavedashtotheshutteroftheshop viz.,AmericanExpressBakeryandbroketheshutterandwentinsideatabout threeandhalffeetisalsotakenintoaccount. Peoplegatheredandshouted andthereforetheaccusedfledawayandultimatelythematterwasreferredto BandraPoliceStation.OneNoorwalaMehboodSharifwentfortheheavenly abodeinthesaidmishapandfourpersonswereinjured. 59. The ld. Magistrate has also considered the evidence of PW9

    Rizwan Ali. He is the hotel manager. He has testified that the accused purchasedabeercocktailofBacardiwinefromhisshop. 60. The ld.Magistrate has also considered the evidence of PW14

    DattatrayK.Balshankar,Asst.C.A.statingthatinthereportExh.P20that Ethylalcoholwasfoundinthebloodsampleoftheaccused. Hehasalso considered the evidence of PW1 Ravindra Patil showing that accused was

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    wellawareoftheroadconditioninasmuchashewasresidinginthesame area. 61. Theld.MagistratealsoconsideredtheevidenceofPW2Ram

    AsarePandya. Hehasstatedintheevidencethattheaccusedwentaway alongwithotherpersonsfromthespotofoffencesoonaftertheincident. 62. Having considered the totality of the evidence of all these

    witnesses, the ld. Magistrate dogmatically formed the opinion that the accusedturneddowntherequestofRavindraPatilPW1todrivethecarat moderatespeedattheturnandwithoutconsideringthenatureoftheroad situationdrovethecarresultingintothemishapanddeathofonepersonand injuriestofourpersons. Healsocametotheconclusionthatapersonof commonprudenceisdeemedtohaveknowledgethatheshouldnotdriven thevehicleindrunkenconditionandatahighspeedandinthemannerin whichtheaccusedwasdrivingvehicleandthereforetheaccusedhasnotonly offendedthelawbuteventhesocialduty.Theld.Magistratehasalsogiven histhoughttotheevidenceofPW12RajendraSadashiv,theMotorVehicle InspectorofR.T.O.aswellasPW15Dr.ShashikantJ.Pawar,PW16VijayM. Salunke,thepoliceofficerwhotooktheaccusedtoJJHospitalformedical examination,PW3SanbaKannappaGowda,thespotpanchandPW5Mohd Abdulla Rauf Shaikh. The ld. Magistrate has also considered as indicated earlierthereportoftheC.A.Exh.P20thatEthylalcoholwasfoundinthe blood sample of the accused. The ld. advocate Shri Mundargi for the applicant/accusedhasmadebonafideattempttoeclipsethisreportinteralia pointingoutthevariousinfirmitiesinbloodcollectionandallthat.Oncethe evidenceofPW1RavindraPatilaswellasHotelManagerPW8RizwanAliis sufficienttoshowthataccusedwasindrunkencondition,thereportofthe C.A.willhavetobeacceptedatthisstageatitsfacevalue.Atthebestdueto the infirmities that may be pointed out the accused may have benefit of

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    acquittalfromtheoffenceU/s.66(1)(b)oftheBombayProhibitionAct,but thefactthathewasdrivingwhileinthedrunkenconditioncannotgeteffaced orobliteratedthereby.Moreover,atthisstage,themeritsanddemeritsofthe caseasindicatedaboveasperthevariousjudicialpronouncementsdeclared bytheHon'bleApexCourtarenottobeconsideredbyholding'MiniTrial'. Thereforeaccordingtotheld.Magistratetheaccusedhadrequisiteknowledge ascontemplatedbySec.304(II)ofIPC. 63. Now apart from the fact that Media Interview given by Shri

    RavindraPatil,SecurityGuardfortheaccusedisnotpossibletobeconsidered atthisstagebecausethesamecannotbeconsideredinlinewiththeratioof theHon'bleApexCourtinsupra Parliament'sCase aswellas AjayParma's case.However,thestagewhichiscontemplatedbysupraThakurSinghisyet to come and atthe stage oftrial the same may be considered. Inother words,thereisnohitchinplacingrelianceontheevidenceofPW1Ravindra Patil at this juncture. Having applied the same, the conclusion with the judicialopinionformedbytheld.Magistratecannotbeinterferredwith. 64. Ishallatthisjuncturedealwiththeaspectofknowledge.With

    regardtothequestionofknowledgecontemplatedinS.304PartIIofthe I.P .C.,IneednotdelvedeepintothisareainasmuchastheDivisionBenchof theBombayHigh Courtinsupra Pereira's case State of MaharashtraVs. Alister Anthony Pereira 2007(4) B.Cr.C. 31 has discussed, adumbrated elaboratelyvariousprosandconsofthematteringreaterminutedetailswith itslegalimplicationsalongwiththeamplecaselaws.TheDivisionBenchalso in the above scholarly Judgment illuminated the duty of the driver while driving the vehicle on the public road Paras 30 to 47 even at the cost of obesityofrecordwouldbepertinenttoexcerptherefortheclearideaofall thefacets. 30. On 12th March 2007 the accused was

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    chargedundersection304(II)ofIPCforcausingdeathof sevenpersonswhoweresleepingonthefootpathatCarter Road,Bandra(West)Mumbaibyrashandnegligentdriving withtheknowledgethattheyweresleepingonthefootpath. Hewasfurtherchargedundersection338ofIPCfordriving thevehiclerashlyandinanegligentmannerandthereby causinggrievoushurtto8persons,whoweresleepingon thefootpath.Onthesetwocharges,theaccusedwasputto trialandtheprosecutionhadleditsevidencetoprovethe said two charges. It needs to be mentioned that the FIR beingFIRNo.436of2006dated12thNovember2006was registeredundersection304(II),279,337,338,336,and 427IPCreadwithsection185oftheMotorVehiclesAct, readwithsection66(1)(b)oftheBombayProhibitionAct. However, the charge was framed only for two offences vizu/s304(II) and338andneithertheaccusednorthe Statequestionedthecorrectnessofthisorder.TheStatehas notraisedanychallengeonthisgroundeveninthepresent appeals. 31. Under section 304(II), whoever commits culpable homicide not amounting to murder can be punished with imprisonment of either description for a term which may extendto10yearsorwithfineorwithboth,iftheactisdone withknowledgethatitislikelytocausedeathbutwithout anyintentiontocausedeathortocausesuchbodilyinjury,as is likely to cause death. A bare reading of this provision showsthattherearethreeessentialingredientsoftheoffence punishableundersection304(II);(a)accusedmustcommita culpablehomicidenotamountingtomurder,(b)theactis done with knowledge that it is likely to cause death and (c)butwithoutanyintentiontocausedeath. 32.Section299ofIPCdefinesculpablehomicideaswhoever causesdeathbydoinganactwiththeintentionofcausing deathorwithanintentionofcausingsuchbodilyinjury,asis likelytocausedeathorwiththeknowledgethatitislikelyby suchacttocausedeath. Illustration (b)tosection299indicatesthekindofcases,whichwillfall withintheambitofsection299.Aculpablehomicidewhichis notamurderwithinthecontemplationoftheprovisionsof section300canalonefallwithinthescopeofsection304(II). `Knowledge' and `intention' are the deciphering and

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    distinguishingfactors.Ifanactisdonewithknowledgebut withoutintention,thenitwouldfallundersection304(II), butifthereisintentionforcommittingoffenceofculpable homicide, it would take it beyond the purview of this provision. The provision of section 304 falls into two different classes; one where offence is committed with intention of causing death or bodily injury as is likely to causedeathprovidinglifeimprisonmentorimprisonmentfor atermwhichmayextendto10yearswithfine.Theother partisrelatabletotheactwhichisdonewithknowledgethat itislikelytocausedeathbutwheretheelementofintention isabsent.Thereitprescribesdifferentpunishmentoflesser gravity.Theactdonewithknowledgeoftheendresultbeing ofthekindwherethedoerhadreasontobelieve thatthe actus reus would result into an offence, the knowledge would be attributable to the offender.The court may,ina given set of facts, attribute to the intoxicated man same knowledgeasifhewasquitesober.Thismaynotbequite truesofarastheintentionisconcerned.`Knowledge'isan expression of wide connotation and is capable of varied interpretationinthecontextofthefactsandcircumstancesof agivencase.Whiledoinganact,knowledgeofconsequence would be attributable to the accused, if it falls within the normalbehaviourofthepersonofcommonprudence.Itis difficult tostate with certaintyanyessentialconstituent of `knowledge'butthisaspectcan safelybeexamined in the lightofvariousjudicialpronouncementsandsettledcanons ofcriminaljurisprudence. 33.Let us examine the expression `knowledge' in different contexts as it is a most pertinent expression appearing in Section304(II). 34. Law Lexicon by P . Ramanatha Aiyar, 1997 edition explainstheword`knowledge'ascertainperceptionoftruth, act or state of knowing that which is or may be known, acquaintance with things ascertainable, reasonable conviction, anything which may be subject of human instructions.Whiledrawingdistinctionbetweenknowledge, actual knowledge and knowledge relatable to different expressions,itdescribesasunder: 1)`Knowledge'isconfinedtothepersonalknowledgeofthe person who has to deliver the account, including the information contained in all the documents which he

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    possessesorhascustodyof,ortowhichheisentitled,butno further.... 2)`Knowledge'and`actualknowledge'havesometimesbeen held to be synonymous. The `knowledge' as used in a contract by which a fidelity and causality company bound itself to make good (to a ban) such pecuniary loss as the lattermightsustainbyreasonofthefraudordishonestyofa named employee in connection with his duties, providing thatthecontractwouldbevoidifthebankcontinuedinits service an employee of whose untrustworthiness they had knowledge,meansactualknowledgeandnotconstructive. 3)KnowledgeandBelief`knowledge'isnothingmorethan men'sfirmbelief,andisdistinguishedfrom`belief'inthat the latter includes things which do not make a very deep impression on the memory., The difference is ordinarily merelyindegree. 4) The meaning of the word `belief' and `knowledge', as definedbylexicographers,willshowthatthereisadistinct and well defined difference between them. `Believe' is definedbyWebstertomeantoexercisetrustorconfidence, and by the Century Dictionary, to exercise belief in, to be perused upon evidence, arguments, and deductions, or by other circumstances other than personal knowledge. `Knowledge' , according to Webster, is the act or state of knowing,clearperceptionoffact,thatwhichisormaybe known. According to the Century Dictionary it means acquaintance with things ascertained or ascertainable, specificinformation. 5)Knowledge of the law `The knowledge of the law with which every man is charged includes a knowledge of the constituent factswhich make the law.Thatthe Legislature enactedacertainlawisafact,butaknowledgeofthelaw imputedtoeverymancomprisesaknowledgeofthatfact. Thatacertainlawisvalidorvoidisanotherfact,butevery manispresumedtoknowwhetheritisvalidorvoid,elsehe couldnotknowthelaw.(WordsandPhrases). 35. Inagivencircumstance`knowledge'maybeconstrued quitedifferentlyfromtheexpression`knowing'.Knowledge is of a lesser degree while `knowing' is of a definite connotation and it must be established that the offender knew about it. Knowledge has also been explained in the JudicialDictionarybyK.J.Aiyar'sasunder: Knowledge A clear and certain perception of that which

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    exists.Knowledge includes either personal knowledge or knowledge derived from documents. No restriction can be readintheword`knowledge'thatitoughttobederivedby ocularseeingoftheevent.Magistratecantakecognizanceof the offence of his own knowledge derived from the police papers,FIR,andthefinalreportundersection169 (Raju aliasRajendraSinghvsStateofRajasthan,1979CrLJ (Raj)300:1979RajL.W.67:1979RajCriC258:1979 WLN144) 36.OneofthemeaningsgivenintheOxfordDictionaryofthe word`knowledge'is: Thefactofknowingathing,state,etcor(ingeneralsense person, acquaintance, familiarity gained by experience). Acquaintancewithafact,perception,orcertaininformation of a fact or matter, state of being aware or informed, consciousness (of anything). The object is usually a propositionexpressedorimplied,e.g.,theknowledgethata personispoor,knowledgeofhispoverty.. 37.TheBlack'sLawDictionary,6thEditionexplainstheword `knowledge'indifferentcontextsanditwouldbehelpfulto haveaglanceatthemwithanobjecttofindmostappropriate meaningrelatabletotherequirementsofSection304(II)of IPC.: Knowledge.AcquaintancewithfactortruthPeoplevHenry, 23CalApp2d155,72,p2d915,921.Ithasalsobeendefined asactorstateofknowingorunderstanding,WrittersvUS 70AppDC316,108,F2d837,840actualknowledge,notice or information, New York Underwriters Ins Co. v Cental UnionBankofSouthCarolina,C.C.A.S.C.65F2d738,739 assurance of fact or proposition fonded on perception by senses,orintuition,clearperceptionofthatwhichexists,or oftruth,factorduty,firmbelief;WrittersvUS70AppDC 316,106,F2d837,840,guiltyknowledge,Goldsworthyv Anderson,92Colo446,21,P24718.informationoffact, GreenvStewart,106CalApp518,289P940944,meansof mentalimpression,HowardvWhittaker,250Ky836,64,SW 2d173miscellaneousinformationandcircumstanceswhich engenderbelieftomoralcertaintyorinducestateofmind that one considers that he knows, Wise v Curdes 219 Ind 606,40,NE2d122,128,noticeorknowledgesufficientto exercise attention and put person on guard and call for

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    inquiry,IbervilleLandCovAmeradaPetroleumCorporation, C.C.A.La 141 F 2d 384, 389, personal cognizance or knowledgeormeansofknowledge,TheChickleDCPa54F Supp19,20,stateofbeingorhavingbecomeawareoffactor truth.HowardvWhittaker,250Ky83664SW2d173.When knowledge of the existence of a particular fact is an elementofanoffence,suchknowledgeisestablishedifa person is aware of a high probability of its existence, unless he actually believes that it does not exist. Knowledge consists in the perception of the truth of affirmativeornegativepropositions,while`belief'admits ofalldegrees,fromtheslightestsuspiciontothefullest assurance. The difference between them is ordinarily merelyinthedegree,tobejudgedofbythecourt,when addressedtothecourt,bythejury,whenaddressedtothe jury. 38. The meaning of word `knowledge', as given in The New Oxford Dictionary of English can also be referred for understanding the expression in common parlance: Knowledge - facts, information and skills acquired by a person through experience or education, the theoretical or practical understanding of a subject, a thirst for knowledge her considerable knowledge of antique, What is known in a particular field or in total, facts and information, the transmission of knowledge 39. `Knowledge' is again distinguishable from `reason to believe'. The term 'knowledge' contains higher degree while the term 'reason to believe' is a matter of lesser degree. In the first, the person has direct appeal to his sense, while in the latter, there is sufficient cause to believe. While determining knowledge in relation to an event, the conduct of the person prior to and at the time of the event is of relevant consideration. Actus reus requires that to constitute a crime there must be a result brought about by human conduct, to physical event, which law prohibits. When an individual pursues or follows a line of conduct, he is expected to produce certain results. Final events or results may be the outcome of different events or it

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    may be the result of a single act. If the end result is prohibited in law and if knowledge would have to be construed in the events of that case in relation to the evidence on record, the onus obviously is on the prosecution to prove the chain of acts even to attribute knowledge to the accused. The concept of `knowledge' has to be understood and applied to the facts of a given case in complete contra-distinction to the words `information' or `reasons to believe'. There may be difference of degree but that difference has to be kept in mind, as that alone is the paramount consideration even at the stage of framing charge whether under sections 300, 302 or 304 and for that matter, 304 (I) or (II) of the IPC ( See Commentary by K.D. Gaur, 3rd edition on IPC and Commentary on IPC by Ratanlal Dhirajlal, 31st enlarged edition of 2006). 40. The Supreme Court and various High Courts have also explained the word `knowledge'. To establish knowledge as an ingredient of criminal offence, there has to be an affirmative or circumstantial evidence to bring home to the accused that he had knowledge of his acts. What a person of normal and ordinary prudence foresee by utilization of his sense directly, would be knowledge. In the case of Jairaj vs State of Tamil Nadu, AIR 1976 SC 1519, the Supreme Court observed that knowledge of the likelihood of the death of the person is contemplated in law. Under section 304(II), if the result of the criminal act is death of the victim and if each of the assailants possesses the knowledge that death is the likely consequence of criminal act, then there is no reason why section 34 should not be read with second part of section 304 to make each of such persons individually liable. (Afrahim Sheikh and ors. vs State of West Bengal (1964) 6 SCR 172). 41. It will be useful to refer to the facts of a case titled State of Gujarat vs Haidarali Kalubhai, 1976 (1) SCC 889, which had not been argued during the course of the hearing of this case. In that case the accused was charged for an offence under section 304 II on the allegation that he had caused death of a police officer lying on a cot from where he was

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    thrown out. According to the accused and as per his statement under section 313 of the Code, when he was reversing the vehicle, other truck was standing and while making his way to the narrow passage, the accelerator got stuck and the truck then went in high speed resulting in the accident. When the driver heard the noise, the cleaner of the truck told him that he had stuck the truck against a cot and people were injured. That obviously was a case of negligent driving simpliciter, as is clear from the attendant circumstances and no knowledge could be attributable to the accused in the facts and circumstances of the case that his reversing the vehicle could cause fatal accident, unlike the facts of the present case where direct evidence as well as attendant circumstances clearly demonstrate that safely an inference of knowledge could be drawn. 42. Another important aspect which has to be examined is that all persons are deemed to be in the knowledge of law. What is prohibited in law and what is an offence in law, are matters of public knowledge. Ignorance of law is not a valid defence when the person is committing an act or omission, which would result in an act prohibited in law. Therefore, the offender cannot take the plea of ignorance in that regard. (Joti Prasad vs State of Haryana, AIR 1993 SC 1167, and State of Maharashtra vs Mayer Hans George, AIR 1965 SC 722. It will be useful also to notice the judgment of the Supreme Court in the case of Joti Prasad vs State of Haryana, AIR 1993 SC 1167, where counterfeit court fee stamps were recovered from the possession of the accused, a licenced stamp vendor. The accused alleged that he had purchased the stamps from the treasury, but did not produce register of such purchase. The accused also did not make any effort to summon the record of the treasury. The court held that it would be proper to infer that the accused has knowledge or reason to believe that the stamps were counterfeit and observed as under: Under the Indian Penal law, guilt in respect of almost all the offences is fastened either on the ground of `intention' or `knowledge' or `reason to believe'. We are now concerned with the expressions `knowledge'

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    and `reason to believe'. `Knowledge' is an awareness on the part of the person concerned indicating his state of mind. `Reason to believe' is another facet of the state of mind. `Reason to believe' is not the same thing as `suspicion' or `doubt' and mere seeing also cannot be equated to believing, `Reason to believe' is a higher level of state of mind. Likewise `knowledge' will be slightly on higher plane than `reason to believe'. A person can be supposed to know where there is a direct appeal to his senses and a person is presumed to have a reason to believe if he has sufficient cause to believe the same. Section 26. IPC explains the meaning of the words `reason to believe' thus: Reason to believe - a person is said to have reason to believe a thing, if he has sufficient cause to believe that thing but not otherwise In substance what it means is that a person must have reason to believe if the circumstances are such that a reasonable man would, by probable reasoning, conclude or infer regarding the nature of the thing concerned. Such circumstances need not necessarily be capable of absolute conviction or inference; but it is sufficient if the circumstances are such creating a cause to believe by chain of probable reasoning leading to the conclusion or inference about the nature of the thing. These two requirements i.e. knowledge and reason to believe have to be deduced from various circumstances in the case. In the context of the circumstances obtaining in the instant case namely the the appellant admittedly was a licenced stamp vendor and he was found in possession of counterfeit stamps, the explanation of accused also becomes relevant and important in assessing and appreciation whether he had such knowledge or reason to believe that the stamps were counterfeited. Admittedly he used to purchase stamps from the treasury and all such transactions are duly recorded in the official registers. There is absolutely no material whatsoever to show that the counterfeit stamps were in fact purchased by him from the treasury. A bare allegation by way of an explanation by the accused- appellant that he purchased all the stamps including the counterfeit ones from the

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    treasury appears on the face of it to be false, as he has neither produced registers maintained by him nor did he make even an effort to summon the treasury records. There is no material whatsoever even to probabilise such a plea. In these circumstances the only inference that can be drawn is that he had knowledge and reason to believe that the stamps which he had in his possession and which he was selling or offering to sell, were counterfeit ones. These ingredients of the two provisions of law are fully established. Therefore the convictions are correct. The offence also is a serious one and the sentence awarded is not excessive. The appeal is therefore dismissed. 43. The concept of rash and negligent driving simpliciter can be attributable where there are no other attendant circumstances of culpable factors indicating additional conduct, act, omission or commission on the part of the offender, pre and post accident.'Knowledge' is a concept which would get attracted in the above circumstances as the case would fall beyond the known canons of rash and negligent driving simpliciter. Getting drunk and under the influence of liquor using a big stick or other weapon for giving blow on the head of a person resulting in death, would obviously be an act done with knowledge that the act would or is likely to cause death. Merely because an automotive car or scooter is involved in the same process would not by itself take the offence outside the scope of section 304 (II) of IPC. The court would have to examine this in the light of the evidence led by the prosecution, defence, if any, the links provided by the accused himself in his statement under section 313 and attendant proven circumstances of the case. 44. A very important principle of law has been enunciated by the Supreme Court in the case of Jayprakash vs State (Delhi Administration), 1991(2) SCC 32. The court accepted that intention and knowledge both are factors which have to be gathered from the facts and circumstances of each case and there cannot be a yardstick uniformly provided for application

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    of such principle. The Supreme Court in that case was dealing with an offence punishable under section 302 for committing offence under section 300 clause thirdly and while holding that the said act amounts to culpable homicide, and following the dictum of the court, stated distinguishably the principle of law as under: The question is not whether the prisoner intended to inflict a serious injury or a trivial one but whether he intended to inflict the injury that is proved to be present. If he can show that he did not, or if the totality of the circumstances justify such an inference, then, of course, the intent that the section requires is not proved. But if there is nothing beyond the injury and the fact that the appellant inflicted it, the only possible inference is that he intended to inflict it. Whether he knew of its seriousness, or intended serious consequences, is neither here not there. The question, so far as the intention is concerned, is not whether he intended to kill, or to inflict an injury of a particular degree of seriousness, but whether he intended to inflict the injury in question; and once the existence of the injury is proved the intention to cause it will be presumed unless the evidence or the circumstances warrant an opposite conclusion. But whether the intention is there or not is one of fact and not one of law. Whether the wound is serious or otherwise, and if serious, how serious, is a totally separate and distinct question and has nothing to do with the question whether the prisoner intended to inflict the injury in question. The language of Clause Thirdly of Section 300 speaks of intention at two places and in each the sequence is to be established by the prosecution before the case can fall in that clause. The 'intention' and 'knowledge' of the accused are subjective and invisible states of mind and their existence has to be gathered from the circumstances, such as the weapon used, the ferocity of attack, multiplicity of injuries and all other surrounding circumstances. It can thus be seen that the 'knowledge' as contrasted with 'intention' signify a state of mental realisation with the bare state of conscious awareness of certain facts in which human mind remains supine or

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    inactive. On the other hand, 'intention' is a conscious state in which mental faculties are aroused into activity and summoned into action for the purpose of achieving a conceived end. 45. Section 304 Part-II requires that if an act is done with knowledge that it is likely to cause death, it is punishable under that provision. Culpable homicide not amounting to murder is the essential ingredient of a charge under section 304(II). Under section 299, culpable homicide is causing death by doing an `act', with intention of causing death as well as knowledge that it is likely to cause death. The entire emphasis is on the expression `act' and `knowledge'. `Knowledge', we have already dealt with at some length with its effect and relevance to the present case. We shall shortly proceed to discuss `act'. Even in its legal sense or even in common parlance 'act' means to take action or do something or to do anything in furtherance or even to fulfill function. Thus the expression `act' does not admit of any limitation, it can be anything and everything by any means. Offensive act may result from a blow, use of knife, gun and even can be by means of a automotive machine (motor vehicles etc.). It was nowhere contemplated by the Legislature that a particular method has to be used for constituting an act, which, if results in death of a person, would invite rigours of the section. If the offender has knowledge that his acts in normal course are likely to end in commission of result which is prohibited in law, the knowledge would be attributable to him, provided there is direct and/or circumstantial evidence in that regard. Comprehension of a reasonable person with ordinary prudence in regard to the result of his acts or omission, is a relevant consideration for a court to arrive at a conclusion, where the offender had knowledge of such events or extent thereof. The Supreme Court in the case of Jayprakash, 1991 (2) SCC 32 (supra) clearly stated that the knowledge of the accused is subject of invisible state of mind and their existence has to be gathered from the circumstances, such as weapon, force of the attack and other surrounding circumstances. `Knowledge' being of lesser degree has to depend considerably on attendant circumstances and awareness of a common

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    man in relation to the acts and deeds immediately preceding or at the time of occurrence of the offence. In the present case, the court has to examine whether a person in drunken condition, rashly and negligently chooses to drive in an, overcrowded car was fully aware that (a) poor persons sleep on the footpath of Mumbai (b) it is prohibited in law to drive a vehicle in drunken condition (under influence of liquor) and (c) it is also prohibited in law to drive a vehicle beyond permissible speed limit. Further it is to be noticed that a liquor bottle was recovered from the car of the accused and the medical evidence showed that the accused was having 0.112% w/v liquor (ethyl alcohol) in his blood (Exhibit 49). The attendant circumstances immediately preceding the accident have been stated in the FIR (Exhibit-13) that the vehicle was driven with high speed and the occupants of the car were making noise. This ex-facie cannot be said to be an act of simpliciter rash and negligent driving. The accused is young and obviously affluent person who owns a luxury car and can pay the fine of Rs.5 lacs as imposed by the trial court within a very short duration of pronouncement of the order of conviction. He is a person who is expected to be having knowledge of law, life in Mumbai and publicly known fact that poor labourers sleep on footpaths of Mumbai. All this imposes a legal obligation upon a person to drive the vehicle carefully at late hours of night and in any case not under the influence of liquor in a drunken condition or rashly. Possession and consumption of liquor is prohibited under section 66 of the Bombay Prohibition Act, 1949. Consumption or use of intoxicant while driving is punishable and driving rashly and negligently resulting in fatal accidents is an offence, are the matters of which the accused would be deemed to have knowledge. Besides this, accused was fully familiar with the area being the resident of Carter Road as indicated in the plea of the accused (Exhibit-7) and his statement made under Section 313 of the Code. As such, it could be safely recorded that he was aware of the persons (labourers) sleeping on the footpath on that road. On facts it can hardly be believed that a person in drunken condition or under the influence of liquor, having 0.112% v/v alcohol in his blood driving a vehicle rashly and negligently with high speed and

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    with high tape recorder sound, would not have knowledge that there is every likelihood of his meeting with an accident resulting in death or injury to others, particularly those sleeping on the footpaths. The knowledge of such facts can neither be far away from reality and, in any case, would squarely fall within the term of knowledge appearing in section 304(II).Keeping in mind the facts and circumstances of the present case the events resulting from such acts, omission and offences would be within the knowledge of the offender. 46. Actual knowledge stricto senso may not be the sine qua non of the ingredients of section 304(II) of IPC. 'Knowledge', as understood in its common parlance would have to be gathered from the evidence on record substantive or circumstantial, and the attendant circumstances thereto. While objectively analysing the evidence on record for gathering knowledge contemplated under this provisions, the court, inter alia, may have to examine the following aspects to which knowledge may relate to:(a) The evidence and attendant circumstances in relation to an act or omission committed by the actor /offender prior to the actual occurrence of the incident; (b) Whether the actor/offender could reasonably perceive the consequences of his acts, misdeeds or omission, examined from the point of view of `normal human conduct of a person of common prudence'; and (c) Such offensive conduct actually resulted in an offence or an act prohibited by law and on a cumulative appreciation of evidence, the act done resulted in death or a bodily injury, which is likely to cause death, of course without any intention to cause death. 47. Knowledge is not a term to be construed in abstract. It must be given objective meaning keeping in view the facts and circumstances of

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    a given case. Simplest test would be whether as a norm of normal behaviour the person can perceive by his senses the consequences of his acts, omissions or commission; where such human conduct brings results which are criminal offences, it would satisfy actus reus. Where a physical event which is prohibited by law is even preceded by offences, which is known to the offender, the knowledge can be gathered more affirmatively, as ultimately it is a question of fact dependent upon the evidence on record and the attendant circumstances. 65. Itisthusclearthattheterm'knowledge'iscertainperceptionof

    truth,actorstateofknowingthatwhichisormaybeknown,acquaintance with things ascertainable, reasonable conviction, anything which may be subjectofhumaninstructions. What a person of normal and ordinary prudenceforeseebyutilizationofhissensedirectly,wouldbeknowledge. To put it simply and differently the personcanbe said to have reasonto believeifthecircumstancesaresuchthatareasonablemanbyquestionable reasoning mayconcludeorinferregardingthenatureofthingsconcerned. Sotheyardstickgivenisofcommonman,apersonofordinaryprudence. Howeverasperthedecisioninsupra Perriera'scase 'actualknowledge' in strictosensumaynotbeasinequanontoattractthetheingredientsofSec. 304(II)ofIPC. 'Knowledge' asunderstoodinitscommonparlancewould havetobegatheredfromtheevidenceonrecordsubstantiveorcircumstantial andtheattendantcircumstances. Inthatviewofthematter,thereasoning adoptedbytheld.Magistratethattheaccusedbeingfromselfsamelocality andvicinitymusthaveknowledgeaboutthesituationoftheroadandtaking intoaccountthefactthatpeoplearesleepingonthefootpathmusthavetaken

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    abundant precaution especially when pinch of salt was takenby PW1 RavindraPatilbymakingarequesttoscaledownthespeed.Whendespite thisentreatytheaccusedpaidnoheedandstilldrovethecarwhile inthe drunken condition, he cannot escape facing the trial in respect of offence punishable U/s. 304(II) of IPC. This aspect with greater details was consideredinsupraPerriera'scaseinpara45(althoughatthestageoftrial). Thequestionbeforethecourtwasthatapersonindrunkencondition,rashly andnegligentlychoosestodriveinan,overcrowdedcarwasfullyawarethat (a)poorpersonssleeponthefootpathofMumbai(b)itisprohibitedinlawto driveavehicleindrunkencondition(underinfluenceofliquor)and(c)itis alsoprohibitedinlawtodriveavehiclebeyondpermissiblespeedlimit.This clearly and surely negatives the submission of the learned Advocate Shri MundargithatthelearnedMagistratefailedtoconsiderthatthereisnofixed spotforthehomelesspeopletosleeponfootpathseverynightanditisnot possible that even for a person staying in the same area to anticipate the presenceofpeoplesleepingonaparticularfootpathat2.45a.m.inthenight. TheDivisionBenchalsoconsideredtheattendantcircumstancesimmediately precedingtheaccidenthavebeenstatedintheFIRthatthevehiclewasdriven with high speed and the occupantsof the car were making noise. Inthe opinionofthecourtthisexfaciecannotbesaidtobeanactofsimplicitor rashandnegligentdriving. Moreorlessthefactsandcircumstancesinthe presentcaseareselfsameandthereforewhentheaccusedallowedhissenses toloseanddrovethecarimpatientlyandintheoverzealousmanner and moreoverinexcessivespeeditapparentlymustbeheldthathehadrequisite knowledgethatbyhisactofsuchrecklessandindiscriminatedrivingislikely to cause death of persons sleeping on the footpath,more so despite giving warningbythesecurityguardPW1RavindraPatilhedidnotputrestrainton his driving. There seems exfacie no escape from this conclusion in my dogmaticview.

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    The fallout of this discussion is that the ld. Magistrate has

    judiciallyformedtheopiniontocommitthecasetotheCourtofSessionsby recording positive opinion that on the basis of evidence on record, Sec. 304(II)ofIPChasbeenattractedandthereforeinmyhumblebutconsidered view,hisordersuffersfromnoillegalityandthesamecannotbetermedas unreasonable or perverse. The same does not result into miscarriage of justice.Therefore,inthelightofsupradecisionsin2008AllMRCri1538, Prakash Somnath Boob V/s. Jaiprakash Badrinarayan Rathi and Ors., Purushottams/oSitaramRautV .TheStateofMaharashtrapertainingto Criminal Revision Application No.23 of 2007 and Bindeshwari Prasad (2002 Vol.6, SCC 650) since there is no manifest illegality resulting into grave miscarriage of justice,interference in the exercise of revisional jurisdictionisnotwarranted. 67. order: ORDER TheCriminalRevisionApplicationNo.220/13againsttheorderofthe Ld.Addl.ChiefMetropolitanMagistrate,9thCourt,Bandra,Mumbaidated 31/01/2013inCriminalCaseNo.490/PS/05onthefileofthe Addl.Chief MetropolitanMagistrate,9thCourtatBandra,standsherebydismissedwith costs. Date:24/06/2013 Dictatedon:24/06/2013 Transcribedon:26/06/2013 Signedon:28/06/2013. (U.B.HEJIB), Addl.SessionsJudge, Gr.Bombay TheupshotofthediscussionisthattheRevisionApplicationis

    sansmeritsandthesameisliabletoberejectedintermsofthefollowing

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