State Of Gujarats vs Ekling Das Charturbhuj Das

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL REVISION APPLICATION (AGAINST ORDER PASSED BY SUBORDINATE COURT) NO. 345 of 2013 FOR APPROVAL AND SIGNATURE:

HONOURABLE MR.JUSTICE S.G.SHAH ================================================================

1 Whether Reporters of Local Papers may be allowed to see the judgment ?

2 To be referred to the Reporter or not ?

3 Whether their Lordships wish to see the fair copy of the judgment ?

4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ?

================================================================ STATE OF GUJARAT Applicant(s) Versus EKLING DAS CHARTURBHUJ DAS Respondent(s) ================================================================ Appearance:

MS JIRGA JHAVERI, APP for the Applicant(s) No. 1 MR SUNIL C PATEL, ADVOCATE for the Respondent(s) No. 1 ================================================================ CORAM: HONOURABLE MR.JUSTICE S.G.SHAH Date : 16/04/2015 CAV JUDGMENT Rule. Learned advocate Mr.Sunil C.Patel waives service of rule for respondent No.1.

2. Heard learned APP Ms.Jirga Jhaveri for the petitioner – State and learned advocate Mr.Sunil C.Patel for respondent No.1.

3. The petitioner is the prosecuting agency, whereas, respondent No.1 is accused before the Sessions Court at Modasa in Sessions Case No.33 of 2009 arising out of FIR being C.R.No.I-35 of 2008 dated 10.9.2008 before the Malpur police station of Sabarkantha District. Pursuant to such FIR, the police has investigated the incident and filed a chargesheet on 29.12.2008 u/ss.279, 304, 337, 338 of the IPC r/w.Sections 177 and 184 of the Motor Vehicles Act. The sum and substance in the FIR and chargesheet is to the effect that on 10.9.2008, the respondent – accused has driven the truck in full speed and rashly and negligently and dashed it with the tractor and trolley and the people standing nearby without application of brake, which resulted into death of as many as 8 persons and caused injuries to several other persons.

4. After such chargesheet, the respondent – accused has filed an application on 16.6.2010 being Exh.6 to discharge him from the offence u/s.304 of the IPC. By order dated 22.11.2012, below such application, the Addl.Sessions Judge, Sabarkantha has directed to forward the papers to the Court of Judicial Magistrate, First Class that no offence has been committed u/s.304 of the IPC. Hence, the prosecution has preferred this revision application.

5. If we peruse the impugned order, it becomes clear that the Sessions Court has unfortunately relied upon the statement in the panchnama as a gospel truth about the reasons for the accident and noted that when panchnama shows the brake-mark for 85 ft. and when it proves that accused has applied the brake before 85 ft. from the point of impact, it could not be considered that he has committed the accident with an intention or motive. Thereby, the Sessions Court has considered that this is an act of negligence only and, therefore, it cannot be considered that it was with some knowledge.

6. In my view, the Sessions Court has failed to realise two major aspects – (1) when there is an application for discharge under particular section, the Sessions Court should have restricted itself to decide such limited issue only that whether accused should be discharged from such section or not, and (2) the statement in panchnama could not be considered as an evidence on either side except considering the details of place of incident and there cannot be any such presumption atleast at such prima-facie stage without allowing the prosecution to adduce the evidence.

7. If we minutely examine the impugned order, it clearly transpires that the Sessions Court has pre-supposed and presumed that there is no offence u/s.304 of the IPC at all. The basic difference between charge u/s.304 and 304A of the IPC is mainly knowledge attributed with the accused that whether accused has a reason to know and understand that his act would result into such grave effect of death of human being or not . Reference to the following cases are relevant at this stage:-

1. State Tr. P. S. Lodhi Colony, New Delhi Vs.Sanjeev Nanda reported in AIR 2012 SC 3104

2. Alistair Anthony Pareira Vs. State of Maharashtra reported in AIR 2012 SC 3802

3. State of Maharashtra Vs. Salman Salim Khan & Anr. reported in AIR 2004 SC 1189

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

9. Even otherwise, it cannot be presumed that a person does not have knowledge that if he drives a heavy vehicle at such a speed that would not allow to stop the vehicle even after the application of brake for 85 ft. distance and, thereby, it is clear and obvious that the person who is driving such a vehicle at such a high speed, it could not be stopped upto 85 ft. even after application of brake, then, such vehicle would not damage any property or harm persons between the place of application of brake and stoppage of vehicle i.e. in the present case extended to 85 ft. In simple words, it is clear and obvious that a driver of heavy vehicle knows well that if he could not stop his vehicle within couple of feet, say 2 to 5 ft. after application of brake, then, it would dash with the object, which would certainly smash because of the weight and speed of the vehicle. Therefore, even if the contents of panchnama, which is quoted by the Sessions Court is to be considered in its true perspective, then, it is to be presumed that the vehicle was driven so speedily and rashly and negligently that the accused could not stop it upto 85 ft. even after application of brake, which resulted into death of 8 human beings, which is not an act by a prudent man. It cannot be said that in all such incidents, there must be prior mens rea or intention to kill a particular person because for that kind of act, the statute provides a different provision i.e. Section 304, but for the act, which has been committed by the respondent herein, the provision of Section 304 is rightly applied by the prosecuting agency and, therefore, it is not appropriate for the Sessions Court to deviate from or dilute the charges as done by the impugned order.

10. In addition to factual aspects as discussed herein above, the legal issue is also quite clear that the framing of charge is different act and under different provisions of the Cr.P.C. by the trial Court, where the trial Court will frame the charge relying upon the available evidence on record and selection of language of charge and section would be done by the concerned Court while framing the charge. As against that, at present, the application by the accused is to the effect that he has not committed any offence whatsoever u/s.304 of the IPC either in full or even in part thereof since he has prayed to discharge him from the charges to be framed u/s.304 of the IPC.

11. In view of such fact, it would be appropriate for the Sessions Court to alter the charge from Section 304 to Section 304A after affording a reasonable opportunity to the prosecuting agency to submit their case that why charge is to be framed u/s.304A instead of Section 304 of the IPC. The modification of Section by the prosecution before filing the chargesheet is not material while deciding such an application. There is no reason for the trial Court to direct the Magistrate to frame charge in particular section while deciding the application to discharge the accused from the charges. It is wisdom and prerogative of the trial Court to frame the charge in accordance with the prima facie available evidence on record in the form of police papers. It is also clear and certain that Chapter XVII of the Cr.P.C. specifically deals with the provisions regarding framing of charge and, therefore, if at all charge is to be modified or altered, trial Court should have followed the provision of such chapter.

12. In view of such facts and circumstances, the revision application is allowed. Thereby, the impugned order dated 22.11.2012 is quashed and set- aside. The trial Court shall proceed further in accordance with law to frame the charge as per the chargesheet after affording reasonable opportunity to both the sides.

13. Rule is made absolute.

binoy (S.G.SHAH, J.)