Courts on its own motion vs Surinder Pal etc.

K.S. Tiwana, J.

These case, which pertain to three Police Stations, that is, Kalanwah Bara Gudha and Narwana, in State of Haryana, contain same questions of law, that is, for what offence these accused should be charged at the trial. The facts of these cases are also more or less similar. Since almost similar facts are involved in these cases, so I will decide all these cases by one order.

In all the cases, the facts are that after taking liquor purchased from the different liquor vends, as are mentioned in reports under section 173 of the Code of Criminal Procedure, 1973, submitted by the Investigation Agencies, many people died and many lost their eyelsight, either partially or totally. Detailed facts, about the death and buildings (partial or total), because of the taking of the poison, in all these cases are as follows :

(i) According to chalan presented in FIR No. 211 dated 2nd of December, 1980, under sections 302/307, 328/320/420, 465/467/109 and 120B of the Indian Penal Code and under Section 61 of the Punjab Excise Act of Police Station Kalanwali, District Sirsa, which is the subject matter of Criminal Revision No. 44 of 1982 and Criminal Revision No. 56 of 1982, 36 people allegedly died because of taking of liquor purchased from the liquor vend of village Kalanwali. Out of these the dead bodies of 24 persons were subjected to postmortem. 45 persons were blinded, totally or partially, or taken ill after consuming the liquor purchased from this vend. The accused are in one way or the other connected with the offence either as owners of the liquor vend, or employees or connected with the preparation, supply and sale of the spurious liquor.

(ii) In the chalan presented on the basis of FIR No. 247 dated 4th of December, 1980, under sections 302/328/307/420, 109 and 120B. I.P.C. of Police Station Baragudha, District Sirsa, which in the subjectmatter of Cr. Revision No. 57 o 1982 8 persons died and 27 persons were blinded, totally or partially, after taking spurious liquor purchased from the liquor vend Baragudha. Out of the dead persons, the dead bodies of only three were subjected to postmortem. The case of the prosecution is that the accused are connected with the crime being the owners of the liquor vend, servants working there or connected with preparation, supply and sale of spurious liquor.

(iii) In the case sent up for trial in the Court on the basis of FIRs No. 297 to 301 of 1980, under Sections 302, and other offences of Police Station Narwana, District Jind, which is the subjectmatter of Criminal Revision No. 79 of 1982, 28 persons died and 33 were hospitalised for ill effects, after taking liquor from the liquor vends mentioned in these cases. The accused are either owners of the liquor vends or the persons working there or the persons who had prepared the spurious liquor and supplied it for sale at that liquor vend.

The learned Sessions Judge, Jind consolidated for trial, all the four cases, committed on the basis of these FIRs.

Case under Revision No. 44 of 1982, Cr. R. No. 56 of 1982 and 57 of 1982 were committed by the Judicial Magistrate I Class to the Court of Session U/S. 302, IPC and other offences. The Additional Sessions Judge, Sirsa, vide order dated 13th November, 1981 framed charges under sections 304A, 120B, 337 and other sections of the I.P.C., which are triable by the Judicial Magistrate Ist Class, and under section 228 (a), Criminal Procedure Code, sent those to the Chief Judicial Magistrate, Sirsa, for trial A.S. Bains J. went on inspection tour of Sirsa District. During the course of inspection these cases came to the notice of the learned Judge. A.S. Bains, J. on 12th of January, 1982, suomotu took cognizance of those cases and issued notice to the accused to showcause why order of the Additional Sessions Judge, Sirsa, dated 13th November, 1981 be not revised. In the meantime, the State of Haryana also filed Criminal Revision No. 56 of 1982 in this Court pertaining to Police Station Kalanwali and Criminal revision No. 57 of 1982 in the case pertaining to Police Station Baragudha.

The cases covered by F.I.Rs. No. 297 to 301 of 1981 of Police Station Narwana, after challan by the police under section 302 and other offences were committed to the Court of Sessions, Jind. The learned Sessions Judge, Jind; consolidated all the cases for the purpose of joint trial and framed charge under section 304 I.P.C. and other offences against the accused. The State of Haryana has filed Criminal Revision No. 79 of 1982 against that order.

It is in this way that these cases are before this Court for decision. As indicated earlier, all these cases, that is, reference and revisions are being decided by one order.

At the outset it is to be seen how the Court of Sessions is to proceed at the stage of the framing of the charge. The law is well settled that finer appreciation of law and facts involved in these cases is to be avoided at the stage of the framing of the charge. The manner of sifting of evidence and the yardstick to measure these at the stage of charge and at the end of the trial are different. The giving of any benefit of doubt on the material collected by the police in view of the possible defence of the accused, which may not be positive at the stage of the charge, has to be avoided. The Court of Sessions has to see if there is a possibility of conviction. It cannot appreciate and scrutinise facts in a strict manner, as is done at the end of the trial. The case of the prosecution or the defence of the accused, which may, on the face of it, be appealing, may wilt under the stress of crossexamination, at the trial. The Court of Session, if it finds that no case at all is made out, under section 227 of the Code of Criminal Procedure, may discharge the accused, but it does not take a decision under section 227 of the Code, but under 228, then it has to see for which offences is the possibility of the conviction. In State of Bihar v. Ramesh Singh, AIR 1977 SC 2018, in regard to sections 227 and 228, Criminal procedure Code, the guidelines in the below quoted passage are given, which can be referred beneficially :

"... ... ... ... ... ...

Reading the two provisions 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 weight 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 is to be finally applied before the 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 of the 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 the 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 primafacie 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. An exhaustive list of the circumstances to indicate as to what will lead to one conclusion or the other is neither possible nor advisable. We may just illustrate the difference of the law by one more example. 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." (Emphasis supplied)

Charges have to be framed in light of these guidelines. The Sessions Judge should not be easily impressed by the defence orally stated on behalf of the accused to mitigate the offence at the stage of the charge. This, however, should not necessarily mean that charge has to be framed for the major offence cited by the prosecution. The Sessions judge has to see the charge in the light of the facts placed before him by the prosecution and if there lurks a doubt and that doubt goes in favour of the major offence, then he should frame charge for that offence.

The Additional Sessions Judge, Sirsa, in cases of police stations Kalanwali and Baragudha, in a very long judgment, strained himself too much to mitigate the offence, when such an effort was not really called for. He took support from almost the same decided cases which have been cited before me by Shri H.L. Sibal, learned Senior Advocate, appearing for the respondentsaccused. I do not find if it is appropriate at the early stage of the revisions against the charge to examine each of the cited cases in detail as it may not prejudice the case of either party at the trial. It will only suffice to say that facts are not so far firmly stated in the cases in hand, to appreciate the cases cited by either counsel or relied upon by the Additional Sessions Judge, Sirsa. The Additional Sessions Judge and Shri Sibal have relied upon the case where the medical practitioner by mistake gave a wrong treatment, or a large does of medicines than the situation required, mixed up the medicines, or the accused did not know the effect of the poison he had administered to the victims. Similarly, the prosecution has relied upon the cases where because of enmity, poison was administered to the victims. So long as the facts are not firmly established of the prosecution case or the defence of the accused, it will not be proper to rely upon the cited cases simply on the arguments of the learned counsel for either side.

It is the case of the prosecution that the victims died or become ill, in which even sight of many was affected, after consuming the liquor purchased from the liquor vends, with which the accusedrespondents were connected in one way or the other. In the viscera of the deceased persons preserved at the time of the postmortem, the Chemical Examiner found methanol. The other names of methanol are methyl alcohol or wood alcohol. Undisputedly, methanol is a poison. It is also a fact, that it is different from the country liquor or the liquor, which is sold under the licence from the State Government at the liquor vends. The prosecution case is based on the statements of many witnesses to be examined at the trial that the victims suffered death, blindness and other ill effects after the consumption of liquor purchased from the vends in question. Recoveries have also been made from some of the accused, which incriminate them. Material was also collected by the Investigation agency that the stock of the licensed liquor at these vends had exhausted and these premises were without licensed liquor or those days, when the occurrences in question took place. There is also material to show that capsules, tablets etc. were also seized by the police from the accused. There is a good bit of material with the prosecution, which is to be tendered at the trial, to prove that the spurious liquor was prepared from methanol by some of the accused at the instance of others and sold as licensed country liquor. This is the material with the prosecution, which is to be produced at the trial. At this stage it may be noticed (not to be taken as an expression of opinion on the merits of the case) that the people indulging in business know the nature of the material they were selling to the people. They planned to prepare and such a stuff for sale to the consumers, which could be passed as liquor and at the same time was to have a toxickick. When they decided upon methanol for use as such an agent, they could not be ignorant of its poisonous character that if this is administered in a lethal dose, then it could be fatal. They cannot at this stage be absolved of this knowledge which is a question of fact. At the stage of charge, the argument that in order to make easy and quick money, they might have done so or it was not in their business interest to kill people is not to be appreciated. The only question is what offence for the purpose of charge is made out against the accused; whether it is under section 302, 304 or 304A of the Indian Penal Code. Finer appreciation of the question of intention or knowledge, which is not made out, but has been inferred by the Additional Sessions Judge, is to be avoided.

Section 229, 300 and 304A, of the Indian Penal Code are the relevant provisions for reference in this case. According to Shri R.P. Bhasin, learned State counsel, the case against the accused is covered by clause Fourthly of section 300 of the Indian Penal Code. The relevant provisions are as :

"Section 299 : Culpable homicide :

Whoever cause death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to caused death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.

Section 300 Murder : Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or

Secondly If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or

Thirdly If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or

Fourthly If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.

Illustrations :

(a) ... ... ...

(b) ... ... ...

(c) ... ... ...

(d) A without any excuse fires a loaded cannon into a crowd of persons and kills one of them. A is guilty of murder, although he may not have had a premeditated design to kill any particular individual."

Section 304A : Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both"

Mr. Sibal has urged that the charge framed by the learned Additional Sessions Judge, Sirsa, was correct as from the prosecution case, if accepted, the charge does not go beyond attributing a rash and negligent act of the accused. He draws support from the definition of `Rashness'' adopted by the Supreme Court in S.N. Hussain v. State of Andhra Pradesh, AIR 1972 SC 685 :

"Rashness consists in hazarding a dangerous or want an act with the knowledge that it is so, and that it may cause injury. The criminality lies in such a case in running the risk of doing such an act with recklessness or indifference as to the consequences. Criminal negligence on the other hand, is the gross and culpable neglect or failure to exercise that reasonable and proper care and prosecution to guard against injury either to the public generally or to an individual in particular, which, having regard to all the circumstances out of which the charge has arisen, it was the imperative duty of the accused person to have adopted. This definition of criminal rashness criminal negligence given by Straight, J. in Empress of India v. Indu Beg, (1881) 3 All 776, has been adopted by this Court in Bhalchandra Waman Pathe v. The State of Maharashtra, Crl. A. No. 62 of 1965, D/20.11.1967 (S.C.).."

At the charge stage it is difficult to segregate, which act of which accused was rath; whether the purchase of methanol for conversion into liquor for sale was rash or its conversion into liquor was rash or its sale was rash. It is yet to be proved by the accused that their case is covered by the observations in S.N. Hussain''s case and they had taken all the required and necessary precautions. In the absence of any explanatory material brought to my notice none of the acts attributed to the accused, in the background of their knowledge about the poisonous and inedible character of the methanol, can be said to be rash or negligent, at this stage of the charge. The urge for profit motive is not made out from the report under section 173 of the Code of Criminal Procedure etc. submitted by the Police. This was verbally addressed by their counsel. The charge under section 304A of the Indian Penal Code is not at all borne out from this material available uptil now. I do not mean to say that it cannot be made out even at a later stage of the trial. The learned Additional Sessions Judge, as said earlier, strained himself too much to stress the judgements cited by him in support of his judgment. The charge under section 304A of the Indian Penal Code against the accused thus requires to be quashed.

It remains now to be seen whether at this stage charge under section 302 or 304 Indian Penal Code is made out. Section 299, Indian Penal Code, has three parts. Its third part is to be compared with section 300, clause Fourthly, of the Indian Penal Code. In State of Andhra Pradesh v. Rayavarapu Punnayy and another, AIR 1977 Supreme Court 45, these two provisions were juxtaposed as :

Section 299 Section 300

"Knowledge

(c) with the knowledge that the act is likely to cause death. (4) with the knowledge that the act is so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death, and without any excuse for incurring the risk of causing death or such injury as is mentioned above.

It was further observed :

"Clause (c) of section 299 and clause (4) of Section 300 both require knowledge of the probability of the act causing death. It is not necessary for the purpose of this case to dilate much on the distinction between these corresponding clauses. It will be sufficient to say that clause (4) of section 300 would be applicable where the knowledge of the offender as to the probability of death of a person or persons in general as distinguished from a particular person or personsbeing caused from his imminently dangerous act, approximates to a practical certainly. Such knowledge on the part of the offender must be of the highest degree probability, the act having been committed by the offender without any excuse for incurring the risk of causing death or such injury as aforesaid."

The act of administering poison has danger inherent in it. The accused did not keep eye on the fatal consequences of methanol. The fatality of the spurious liquor is demonstrated by the havoc which visited the consumers, who took the spurious liquor. The method of preparation and sale by the accused was an act, which was imminently dangerous. It was done only to borrow arguments on behalf of the accused only with a profit motive. Such a profit motive in the absence of any valid explanation, which is not yet forthcoming, does not give any justification to the act of the accused. Even if this argument of profit motive is considered with favour, it does not provide any excuse to the accused to justify the act with which they are charged. People, who prepared spurious liquor from poisonous stuff, in the absence of any explanation, are to be attributed to the knowledge. The act of serving people with diluted poison, without any explanation, is imminently dangerous. At this stage of charge, the explanation (d) to section 300 of the Indian Penal Code, can also be considered in favour of the prosecution. The sale of methanol, which is not edible, has the risk of causing injury and even death.

From the aforesaid circumstances, I am of the view that the orders passed by the learned Sessions Judge, Jind and the learned Additional Sessions Judge, Sirsa, framing charge under section 304 and 304A in these cases were palpably wrong. The orders to the extent they relate to sections 304/304A of the Indian Penal Code are quashed. The remaining charges framed against the accused are allowed to remain intact.

Criminal Revision No. 44 of 1982 and Criminal Revisions No. 56 and 57 of 1982 are remitted to the learned Additional Sessions Judge, Sirsa and Criminal Revision No. 79 of 1982 is remitted to the Court of the learned Sessions Judge, Jind, for proceeding in accordance with law in the light of the observations made above.

Before parting with the judgment, I want to make it clear that whatever view has been expressed above is limited only to the extent of the charge and is based on the limited material available on the files of the trial Court in the form of the reports under sections 173 of the Code of Criminal Procedure, documents and the copies supplied to the accused. It should not be taken as an expression of opinion by this Court. The trial Courts after recording of the evidence and at the end of the trial shall be at liberty to take any view possible on evidence recorded by them and should not be impressed by any comment made in this order.

JUDGMENT accordingly.