Mohammed Arbaaz Khan v. The State

THE HIGH COURT AT CALCUTTA CRIMINAL RIVISIONAL JURISDICTION [CIRCUIT BENCH AT PORT BLAIR] ******** PRESENT: HON'BLE JUSTICE BIBHAS RANJAN DE CRR/25/2022 IA No.CRAN/1/2022, CRAN/2/2022 Mohammed Arbaaz Khan .... Petitioner

Versus

The State .... Respondents For the Petitioner : Mr. Tulsi Lall For the State : Mr. Salim Mohammed Heard on : December 15, 2022 Judgment on : December 19, 2022 BIBHAS RANJAN DE, J.

1.

This revisional application is directed against the order No. 10 dated 08.04.2022 whereby learned Additional Sessions Judge, North and Middle Andaman at Mayabunder rejected the prayer, on behalf of the accused, within the meaning of Section 227 of the Code of Criminal Procedure for discharging the accused on the ground of insufficient evidence and also for considering the statement recorded in course of enquiry under Section 174 of the Code of Criminal Procedure, as First Information Report.

2.

Background of the case, in brief, as follows:-

On 09.02.2021 at about 18.15 hours one information was received at Police Station, Mayabunder to the effect that one lady hanged herself in her home at Pokkadera, Mayabunder. Immediately Police team under the leadership of Stalin NS, the than SHO, rushed to the pot but it was informed that the lady was taken to Dr. R.P. Hospital, Mayabunder and Police team rushed to the Hospital as well, but the leady was declared dead at 18.28 hours. One boy, Shahbaz Khan, brother-in-law of the deceased, gave his statement that he saw his sister-in-law hanging herself with a dupatta tied to the ceiling fan. Then he screamed and called his other family members and neighbours. On being asked he also stated that he was residing in the same family of the deceased and for last 2-3 days his sister-in-law (deceased) appeared sad and remain silent and his sister-in-law might have committed suicide due to some personal reasons. On that statement UD FIR No. 2/2021 dated 09.02.2021 under Section 174 Code of Criminal Procedure was started and investigation was entrusted with SI Shubham Pathak. 3.

During investigation under Section 174 of the Code of Criminal Procedure concerned Police officer visited the place of occurrence, prepared site plan, took photographs of the deceased, prepared seizure list and sent the dead body to morgue for post mortem examination. It is further seen that inquest report was prepared by Sub Divisional Magistrate,

Middle Andaman, Rangat and in course of inquest, statement of the family members of the deceased were recorded. After receiving that inquest report of the UD case at the Police Station, Mayabunder through SDPO, statement of Mother of the deceased Smt. G. Rajeshwari disclosing a cognizable offence was available with the Mayabunder Police Station. On that statement the Mayabunder Police Station Case No. 06/20201 on 08.03.2021 under Section 306/498 (A)/34 of the Indian Penal Code was started and investigation was taken up by the Inspector N S Stalin. After completion of the investigation charge sheet was submitted against the accused/petitioner. 4.

On the issue of initiating Police Case Mr. Tulsi Lall, learned advocate appearing on behalf of the petitioner, submitted that statement recorded during inquiry under Section 174 Code of Criminal Procedure cannot be converted to First Information Report under Section 154 of the Code of Criminal Procedure.

5.

In opposition to that, Mr. Salim Mohammed learned advocate appearing on behalf of the state, submitted that there is no irregularity in considering a statement recorded during the inquiry under Section 174 of Code of Criminal Procedure as First Information Report within the meaning of Section 154 of the Code of Criminal Procedure. Mr. Salim has further contended that statement of the Mother of the deceased actually

disclosed the cognizable offence with the meaning of Section 306/498 (A) Indian Penal Code, for the first time. 6.

On careful looking on the provisions of the Section 154 of Code of Criminal Procedure the word information in cognizable offence cannot be said to be applicable only in case of information directly to the officer in-charge of Police Station either orally or in writing. It is duty of the of the Police officer to take note of the information disclosing a cognizable offence and more so anyone can put the law in motion either orally or in writing.

7.

Mr. Tulsi Lall, learned advocate appearing for the petitioner has tried to convince this Court by making the argument that initial statement of Shahbaz Khan ought to have been considered as First Information Report instead of the statement of the Mother of the deceased recorded at the time of inquest over the dead body under Section 174 of the Code of Criminal Procedure.

8.

The statement of Shahbaz Khan as it appears from the record, available before this Court it is found that he stated that his Sister-in-law committed suicide due to some personal reasons without making any kind of allegation against the accused. Therefore, at the time inquiry under Section 174 particularly at the time of inquest the Mother of the deceased disclosed allegations involving the accused for the first time

before the Sub Divisional Magistrate, Rangat, at the time of inquest. After observing the necessary procedure the said inquiry report including inquest report came to the jurisdictional Police Station. Therefore, I find hardly any irregularity for starting a specific case under Section 306/498 (A)/34 of Indian Penal Code on the basis of the statement of G. Rajeshwari, the mother of the deceased.

9.

Mr. Tulsi Lall, learned advocate on behalf of the petitioner further contended, alternatively, that there are insufficient materials to frame charge against the petitioner/accused. 10.

Per contra, Mr. Salim, learned advocate appearing on behalf of the state argued that during investigation, IO has collected sufficient evidence to put the accused in trial. To support his contention he relied on a case of Dipakbhai Jagdishchandra Patel vs. State of Gujrat and another reported in (2019) 16 SCC 547.

11.

After careful perusal of the statements of witnesses and all other police papers I am unable to come to any conclusion at this stage that there is no material to frame charge against the accused/petitioner in this case. In fact, a slight flickering of acquisition against the accused is sufficient to put the accused into trial as this is not a stage to scan the entire evidence to find out the guilt of the accused beyond any shadow of doubt. In this

regard it would be profitable to reproduce the paragraph 15 and 16 of Dipakbhai Jagdishchandra Patel (supra) as follows:- "15. We may profitably, in this regard, refer to the judgment of this Court in State of Bihar v. Ramesh Singh wherein this Court has laid down the principles relating to framing of charge and discharge as follows: (SCC pp. 41-42, para 4) "4. Reading Sections 227 and 228 together in juxtaposition, as they have got to be, it would be clear that at the beginning and the initial stage of the trial the truth, veracity and effect of the evidence which the prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be attached to the probable defence of the accused.

It is not obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter under Section 227 or Section 228 of the Code. At that stage the court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial.

But at the initial stage if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. The presumption of the guilt of the accused which is to be drawn at the initial stage is not in the sense of the law governing the trial of criminal cases in France where the accused is presumed to be guilty unless the contrary is proved. But it is only for the purpose of deciding prima facie whether the court should proceed with the trial or not.

If the evidence which the prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in crossexamination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial. If the scales of pan as to the guilt or innocence of the accused are something like even, at the conclusion of the trial, then, on the theory of benefit of doubt the case is to end in his acquittal. But if, on the other hand, it is so at the initial stage of making an order under Section 227 or Section 228, then in such a situation ordinarily and generally the order which will have to be made will be one under Section 228 and not under Section 227."

16. In Union of India v. Prafulla Kumar Samal, after survey of case law, this is what the Court has laid down: (SCC p. 9, para 10) "10. Thus, on a consideration of the authorities mentioned above, the following principles emerge:

(1) That the Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out.

(2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial.

(3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.

(4) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced court cannot act merely as a post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial."

12.

In the aforesaid view of the matter, I do not find any infirmity or irregularity in the order dated 08.04.2022 passed by learned Additional Sessions Judge, North and Middle Andaman at Mayabunder.

13.

This being the position the instant revision application stands dismissed. Any pending application, if there be any, stands disposed of, as well.

14.

Let a copy of this judgement be communicated to the Court of learned Additional Sessions Judge, North and Middle Andaman at once for information.

(BIBHAS RANJAN DE, J.)