Vrajlal Bhanjibhai Chavda vs Alpesh Nandlal Rathod and Others

A.G. Uraizee, J.—This revision application is directed against order dated 30th September, 2008 passed below Exh. 18 in Sessions Case No. 59 of 2008 by the learned Presiding Officer and Additional Sessions Judge, 5th Fast Track Court, Rajkot. The short facts for disposal of the present revision application are that the present petitioner filed a complaint with Malaviyanagar Police Station, Rajkot against respondent Nos. 1 to 6 for the offences punishable under Secs. 302, 498A, 34 and 201 of I.P.C. vide C.R. No. 1 - 31 of 2008 for the murder of his daughter - Sangita. The police laid charge-sheet against opponent Nos. 1 to 6 after completion of the investigation and the case came to be committed to the Court of Sessions as the offences were exclusively triable by Court of Sessions. On committal, the case was registered as Sessions Case No. 59 of 2008. Opponent Nos. 1 to 6 filed an application Exh. 13 under Sec. 227 of the Code of Criminal Procedure, 1973 (''the Code'', for short) for discharge from the case on various grounds. The learned trial Judge partly allowed the application and directed to frame charge against opponent Nos. 1 to 6 for the offences under Secs. 306, 498A read with Sec. 114 of the I.P.C. vide his order dated 30th September, 2008 which is impugned in this revision application at the instance of the original complainant.

Heard Mr. P.S. Gondaliya, learned Counsel for the applicant and Mr. Neeraj Soni, learned Additional Public Prosecutor for respondent No. 7-State. Though duly served, respondent Nos. 1 to 6 who are accused persons of Sessions Case No. 59 of 2008 have not chosen to enter their appearance either in person or by duly instructed Advocate.

At the outset, it is pertinent to take note of the fact that the revisional jurisdiction conferred under Sec. 397 of the Code of Criminal Procedure, 1973 is narrow, limited and circumscribed. Unless and until the revisional Court finds the judgment and order impugned before it palpably illegal or capricious or without jurisdiction, the revisional Court cannot interfere in such impugned orders. Keeping in mind such limited and circumscribed jurisdiction under Sec. 397 of the Cr.P.C., the merits of the present revision application are required to be examined.

Mr. Pravin Gondaliya, learned Advocate for the appellant has vehemently contended that the impugned order of the learned trial Judge is wholly illegal and against the principles of law. He would further attempt that the learned trial Judge has committed a grave error in appreciating the evidence at the premature stage, and therefore, this revision may be allowed and the impugned order may be set aside.

Mr. Neeraj Soni, learned A.P.P. has supported the submissions of the learned Advocate for the applicant and had drawn the attention of the Court to the counter-affidavit filed by Mr. L.P. Mapara, Police Sub-Inspector, Special Investigation Team, Rajkot on behalf of respondent No. 7 wherein also he has stated that upon conclusion of the investigation an offence punishable under Sec. 302 and allied Sections of I.P.C. was found to have been committed. Hence, learned A.P.P. also submits that the impugned order may be quashed and set aside.

The submissions made by the learned Advocate for the applicant and the learned A.P.P. need to be accepted. It seems that the learned trial Judge has thrown the settled principles governing the determination of discharge application under Sec. 227 of the Code to winds. It is a settled proposition of law that while considering the discharge application under Sec. 227 of the Code, the Court is not expected to enter into the arena of appreciation of the evidence. While entertaining an application for discharge under Sec. 227 of the Code, the Court is expected to examine the police report, filed under Sec. 173 of the Code to satisfy itself whether the evidence prima facie discloses the commission of cognizable offence by accused persons. The learned trial Judge has not only ventured into the arena of appreciation of evidence, but, on the basis of the conjectures and surmises, concluded that at this stage, the evidence does not reveal that the accused persons had committed murder of Sangitaben.

The Hon''ble Supreme Court in the case of Sanghi Brothers (Indore) Pvt. Ltd. Vs. Sanjay Choudhary and Others, has held that even if there is a strong suspicion about the commission of offence and the involvement of the accused, it is sufficient for the Court to frame a charge and that at that stage, there is no necessity of formulating the opinion about the prospect of conviction. Hence, the learned Judge has done unwarranted exercise of appreciation of evidence at a nascent and premature stage and on the basis of conjectures and surmises has committed a grave mistake in partly allowing the discharge application and directing framing of charge under Secs. 306 and 498A read with Sec. 114 of I.P.C. instead of Secs. 302, 498A, 34, 201 read with Sec. 114 of I.P.C. rendering the impugned order vulnerable warranting interference in this revision application under Sec. 397 of the Code. Hence, the present Revision Application succeeds and is hereby allowed. The impugned order dated 30th September, 2008 passed below Exh. 18 in Sessions Case No. 59 of 2008 by the learned Presiding Officer and Additional Sessions Judge, 5th Fast Track Court, Rajkot whereby learned trial Judge directed to frame charge for the offences punishable under Secs. 306, 498A read with 114 of I.P.C. instead of Secs. 302, 498A, 34, 201 read with Sec. 114 of I.P.C. is set aside. Record and Proceedings be remitted to the Court below forthwith if they are called for.