Smt. Shetiyamma Pujari Dhotre vs State of Maharashtra

H.H. Kantharia, J.—Quite an important question of law that I am called upon to decide in this criminal application filed by the petitioner u/s 397 read with Section 482 of the Criminal Procedure Code, 1973 (hereinafter referred to as "the Code") is as to at what stage the jurisdiction of the Court of Session can be invoked by an accused for being discharged u/s 227 of the Code. The issue assumes greater importance as there is no precedent on this law point or if there is any, it has not been brought to my notice.

The petitioner is the mother of one Suresh who is alleged to have been murdered The prosecution case is that the petitioner was unfaithful to her husband during his lifetime and even after his death. Her husband was dealing in quarry business which was being managed after his death by the petitioner and her deceased son Suresh. However, subsequently disputes arose over this business between the mother and the son. The prosecution alleged that on account of such disputes, the petitioner decided to do away with her son with a view to become an absolute owner of the business. It is alleged that, therefore, she conspired with her men of confidence viz. Shankar (accused No. 2) and Gangadhar, stated to be absconding accused No. 5. It is the prosecution case that the petitioner was having illicit relations with Gangadhar. Further, it is alleged that after entering into conspiracy with Shankar and Gangadhar to kill Suresh, accused No. 3 Baidulla and accused No. 4 Asagarali were hired and in pursuance of such conspiracy, on 23rd November 1985 when Suresh was proceeding in his car along Quarry Road, Jogeshwari, accused Nos. 3 and 4 followed him up on a motor cycle and fired a shot from a country-made pistol at Suresh and sped away. Suresh succumbed to the injuries received by him, before admission in the hospital.

The D.N. Nagar Police carried out investigation in this murder case and arrested the petitioner as also Shankar and the two hirelings. Gangadhar is shown as absconding. The accused were charge-sheeted in the Court of the learned Metropolitan Magistrate, 44th Court, Andheri who by his order dated 6th March 1986 committed the case to the Court of Session, Greater Bombay, for offences punishable under Sections 120-B and 302 read with Section 34 of the Penal Code.

The trial is pending in the Sessions Court but in the meanwhile the petitioner made an application u/s 227 of the Code for being discharged, contending that the material procured by the prosecution against her was not sufficient to frame a charge and that in the normal course it would take about two to three years for the trial to commence. She also contended that this was an unusual case where a mother was charged for an alleged offence of murder of her own son which has adversely affected her image in the society and she was facing social boycott and great humiliation and even her other.children are not prepared to talk to her. The said application was heard by the learned Additional Sessions Judge (Mrs, P.D. Upasani) who by her impugned order dated 2nd September, 1986 rejected it mainly on the ground that the stage for discharging the accused has not reached as under Chapter XVIII of the Code the trial is conducted by the Public Prosecutor who opens the case of the prosecution u/s 226 by stating what evidence he proposes to adduce to prove the guilt of the accused and then only the stage of discharging the accused arrives u/s 227 and if the accused is not discharged, a charge has to be framed u/s 228. In other words, the learned Additional Sessions Judge was of the view that the application made by the petitioner for being discharged even before the commencement of trial under Chapter XVIII, was premature and, therefore, not maintainable in law. She was also of the view that if such a premature application is entertained, "one can visualise the situation where each accused would be seen rushing, flooding and engulfing the Sessions Court immediately after the committal order was passed with application for discharge which would throw out of gear the work and procedure in the Sessions Court". This is one more reason why she rejected the petitioner''s application.

Being aggrieved, the petitioner (original accused No. 1 in the Sessions Case No. 192 of 1986) came here invoking the revisional jurisdiction of this Court u/s 397 and the inherent powers u/s 482 of the Code.

Mr. Kotwal; learned Counsel appearing on behalf of the petitioner, urged that the impugned order passed by the learned Additional Sessions Judge cannot stand legal scrutiny for the simple reason that under the Criminal Procedure Code, 1898 (hereinafter referred to as "the old Code") an accused could be discharged u/s 207-A when the committal order was passed by the Magistrate which right of the accused has been taken away under the new Code and as such now an application for discharge can be made only in the Sessions Court soon after the case is committed. In the submission of Mr. Kotwal, the question of the commencement of the trial when only an application for discharge can be made does not arise because Section 227 of the Code envisages that an accused can be discharged after being committed to the Court of Session and, therefore, there is an error of law on the face of the record in the impugned order passed by the learned Additional Sessions Judge. Mr. Phanse, learned Additional Public Prosecutor, concurred with the views expressed by Mr. Kotwal about the maintainability of an application for discharge u/s 227 of the Code before the Sessions Court. Thus, in the submission of Mr. Phanse, the learned Additional Sessions Judge committed an error in law in coming to a conclusion that the petitioner''s application for being discharged was premature.

Now, under the old Code, an accused was committed to the Court of Session by the Magistrate u/s 207-A but before doing so, he had to record the evidence adduced before him, appreciate the same for a limited purpose to find out whether there was sufficient material for framing the charge and if he was of the opinion that there was sufficient material to commit the accused to the Court of Session, he had to frame an appropriate charge and then alone commit the accused to the Court of Session otherwise discharge him. In other words, the accused had a right vested in his favour to have been discharged at the committal stage itself under the old Code. But now u/s 209 of new Code, the Magistrate has no alternative but to commit the case and not the accused to the Court of Session, when the case is instituted on police report or otherwise and when the accused appears or is brought before him and it appears to him that the alleged offence was exclusively triable by the Court of Session. Therefore, the right of being discharged by the Magistrate, that the accused had, under the old Code is taken away under the present Code. It is in this context that the powers of the Sessions Court to discharge an accused u/s 227 becomes relevant and also important. It is pertinent to note that under the old Code, the Sessions Court was not required to frame a charge as it was already done by the committing Magistrate and all that the Sessions Court was required to do was to alter or add to the charge and then try the accused whereas under the present Code, the Sessions Court has to frame a charge u/s 228 if he does not discharge the accused u/s 227. This position in law is well settled and if any authority is necessary it can be had in Dr. Dattatraya Samant v. State of Maharashtra 1981 Cri LJ 1819 in which reliance was placed by this Court on a ruling of the Supreme Court in Sanjay Gandhi Vs. Union of India (UOI) and Others, . Therefore, now, the discharge order can be passed only by the Sessions Court and that could be done u/s 227 of the Code. The point is at what stage?

In order to appreciate the niceties of the arguments advanced by Mr. Kotwal and supported by Mr. Phanse, it would be appropriate to state here the provisions of Sections 226, 227 and 228 of the Code.

Opening case for prosecution.- When the accused appears or is brought before the Court in pursuance of a commitment of the case u/s 209, the prosecutor shall open his case by describing the charge brought against the accused and stating by what evidence he proposes to prove the guilt of the accused.

Discharge.- If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing.

Framing of charge.- (1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which

(a) is not exclusively triable by the Court of Session, he may, frame a charge against the accused and, by order, transfer the '' for trial to the Chief Judicial Magistrate, and thereupon the Chief Judicial Magistrate shall try the offence in accordance with the procedure for the trial of warrant-cases instituted on a police report.

(b) is exclusively triable by the Court, he shall frame in writing a charge against the accused.

(2) Where the Judge frames any charge under Clause (b) of Sub-section (1), the charge shall be read and explained to the accused and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried.

In the submission of Mr. Kotwal, not discharging an accused means framing of charge which would result in affecting his personal liberty as on account of charge being framed against him, his liberty to a certain extent gets curtailed. While elucidating his argument, Mr. Kotwal submitted that it is a fundamental right of an accused to have speedy trial. lam greatly impressed by the submission of Mr. Kotwal because, in my judgment; in all criminal prosecutions, irrespective of the nature of the offence alleged, the right to a speedy trial and justice is now a well recognised fundamental right under Article 21 of the Constitution of India so as to prevent undue and oppressive incarceration even earlier than being found guilty and to mitigate the anxiety and public accusation against the accused. Again, long delay in the disposal of a criminal trial may impair the ability of an accused to defend himself. In Hussainara Khatoon and Others Vs. Home Secretary, State of Bihar, Patna, the Supreme Court had held that under our Constitution, though speedy trial is not specifically enumerated as a fundamental right, it is implicit in the broad sweep and content of Article 21 as interpreted by Supreme Court in Mrs. Maneka Gandhi Vs. Union of India (UOI) and Another, . It was held in that case that Article 21 confers a fundamental right on every person not to be deprived of his life or liberty except in accordance with the procedure prescribed by law and it is not enough to constitute compliance with the requirement of that Article that some semblance of a procedure should be prescribed by law, but that the procedure should be reasonable, fair and just. The Supreme Court had further held that there can be no doubt that speedy trial, and by speedy trial reasonably expeditious trial, is an integral and essential part of the fundamental right to life and liberty enshrined in Article 21. Recently, the Supreme Court held in Raghubir Singh and Others Vs. State of Bihar, that:

The question whether the right to a speedy trial which forms part of the fundamental right to life and liberty guaranteed by Article 21 has been infringed is ultimately a question of fairness in the administration of criminal justice even as ''acting fairly'' is of the essence of the principles of natural justice and a ''fair and reasonable procedure'' is what is contemplated by the expression ''procedure established by law'' in Article 21.

Bearing these principles of law enunciated by the Supreme Court in mind, let us examine the correctness of the finding of the learned Additional Sessions Judge in the instant case that the application of the petitioner for being discharged u/s 227 of the Code was premature.

In my opinion, speedy trial and quick justice is the core and conscience of the Criminal P.C, 1973. Thus, looking backward into the legislative history in this respect, we find that old Code was virtually overhauled by the amendment of 1955 to ensure speedier investigation and trials. The.committal procedure in sessions cases was almost abolished or at any rate simplified in order to quicken up the final adjudication upon the guilt or innocence of the accused by bringing about radical changes in the present Code. As submitted by Mr. Kotwal, speedy trial is correlated to discharge of an accused and the real question is when does a trial in the Sessions Court commence with a view to give " an opportunity to an accused to make an application for being discharged. Under the old Code, the trial began u/s 271(1) when the Court was ready to commence the trial after the accused was committed to the Court of Session whereas under the present Code the trial begins u/s 226 when the accused appears or is brought before the Court in pursuance of the commitment of the case u/s 209. Therefore, the trial under the present Code really begins or commences as soon as the case is committed and not when the Court is ready to commence the trial as was the position under the old Code. It is, therefore, the duty of the Sessions Court to begin the trial on the commitment of the case of the accused to it by the Magistrate. Speaking from practical point of view, it may or. may not be possible for the Sessions Court to begin the actual trial soon after the case is committed and, therefore, if an accused makes an application for being discharged u/s 227 of the Code even before the actual trial begins, as envisaged under Chapter XVIII of the Code, it would be perfectly in accordance with law. Legally speaking, there would be nothing wrong if an accused makes such an application and it cannot be termed as premature. The position in law now as it stands is that after the committal order is made u/s 209, the next stage is Section 227 for the accused to be discharged if there is no sufficient material to frame a charge against him. It would, therefore, be open to the Sessions Court, u/s 227 of the Code, to discharge the accused even before the actual trial begins which would take care of his right of being discharged which right he could have exercised in the Court of the committing Magistrate under the old Code. Hence, if an accused makes an application u/s 227 of the Code before a Sessions Judge even before the actual trial, in the sense of recording evidence, begins, for being discharged, the Sessions Judge or Additional Sessions Judge would be within his powers to pass an appropriate.order on such application. He cannot dispose of the application by calling it premature. He is duty bound in law to dispose of such an application either by granting or rejecting it on merits.

The learned Additional Sessions Judge observed in her order that there is no specific provision in the Code to enable an accused, to make an application u/s 227 for being discharged even before the actual trial begins. To that Mr. Kotwal countered that Parliament cannot make provision for every situation and we have to read the provisions of the Act with a view to see that the intention of the legislature was fulfilled and the purpose for which the Act was passed is not defeated. He also submitted that like any other Code, it cannot be said that the present Code is exhaustive but one thing is certain that the purpose for which it was enacted is speedy trial. A bare perusal of various provisions in different chapters of the Code indicates that the essence of the scheme of the Code is speedy disposal of criminal trials and quick delivery of justice and, therefore, to achieve the said objective we have to read all the relevant provisions of the Code as a whole so as to see that the purpose for which the Code was enacted is achieved and the same is not defeated. It was held by this Court in Fashion Production Mazdoor Sabha v. Smita Prabhakar Dalvi 1985 Mah 819 that:

The cardinal principle of interpretation of statutes is that unreasonable or artificial or anomalous constructions have to be avoided and if two constructions are possible, the one which is more reasonable to achieve the object sought to be achieved by the Act has to be chosen by the Court. The Court has to read the legislation as a whole so as to unfold the real intention of the legislature.

We may also usefully quote a passage from "Principles of Statutory Interpretation"by G.P. Singh, 3rd Edition, at page 104:

that a statute must be read as a whole and one provision of the Act should be construed with reference to other provisions in the same Act so as to make a consistent enactment of the whole statute. Such a construction has the merit of avoiding any inconsistency or repugnancy either within a section or between a section and other parts of the statute. It is the duty of the courts to avoid "a head on clash" between two sections of the same Act and, whenever it is possible to do so, to construe provisions which appear to conflict so that they harmonise. It should not be lightly assumed that Parliament had given with one hand what it took away with other.

The Supreme Court in a recent case of State of Kerala Vs. Mathai Verghese and Others, has observed:

A Court can make a purposeful interpretation so as to ''effectuate'' the intention of the legislature and not a purposeless one in order to ''defeat'' the intention of the legislators wholly or in part.

Since the purpose for which the present Code was enacted is speedy trial, all the relevant provisions of this Act have to be read harmoniously, so as to avoid any head on collusion or with a view to avoid anomalies. It is no doubt true that there is no specific provision in the Code as to when exactly an application can be made by an accused for being discharged but since speedy trial is.the core and conscience of the Code, it would not be improper for any accused to make an application u/s 227 even before the so-called actual trial begins under Chapter XVIII of the Code. It is no use saying to an accused that he can wait for a couple of years for being discharged. If we accept the reasoning of the learned Additional Sessions Judge, the very purpose for which the present Code was enacted would be defeated. It would be cruel to inform an accused person, who feels that there is no sufficient material against him to proceed, that he cannot make an application for being discharged u/s 227 only because in the normal course the case has not reached "the final stage of trial". The provisions of Section 227 of the Code are benevolent and there is no reason why they should not be exercised in favour of an accused, who belongs to the weaker section of the society as against the high and mighty State, even if the stage of actual trial has not reached. I am, therefore, of the view that the conclusion reached by the learned Additional Sessions Judge that the application of the petitioner was premature is not proper and correct and is vitiated by fallacious reasoning.

The apprehension in the mind of the learned Additional Sessions Judge that if an application like the one made by the petitioner is entertained, the working of the Sessions Court would be thrown out of gear, to say the least, is an approach unexpected of an adjudicator. If it is the right of an accused to make an application for being discharged earlier than the actual trial begins under Chapter XVIII of the Code, there should be no fear in the mind of any Sessions Judge that the working of the Sessions Court would be thrown out of gear if the accused persons are allowed to make such applications. Such applications have to be entertained, heard and disposed of on merits. Speedy trial and quick justice is a fundamental right of an accused and, therefore, pointing out inconvenience and difficulty in the way of the working of the Sessions Court, is no answer to deny justice to a person who is entitled to justice. And it is not that in every case, accused persons would make such applications soon after their cases are committed to the Court of Session. But even if they do so, their applications will have to be disposed of on merits.

In this view of the matter, I hold that the impugned order passed by the learned Additional Sessions Judge is bad in law and will have to be set aside. It is accordingly set aside.

That takes me to considering the merits of the case. This aspect of the matter was argued at quite some length and both Mr. Kotwal and Mr. Phanse made their respective submissions but later Mr. Kotwal submitted that he would not press for the relief on merits at this stage. He submitted that the question may be kept open and his client may be granted liberty to argue for discharge in the Sessions Court when her case will be taken up for hearing. Therefore, the contention of the petitioner that no charge be framed against her and that she may be discharged, is kept open for consideration and she shall be at liberty to make submissions in that behalf, if so advised, as and when her case is taken up by the Sessions Court for final hearing. Regard being had to the peculiar and unusual facts of this case that a mother is charged for an alleged offence of murder of her own son and that she is facing social boycott and humiliation everywhere even at the hands of her children and other relatives, I hope and trust that the Sessions Court shall take up this case for hearing as early as possible.

Rule is thus partly made absolute.