This revision application challenged the discharge order of the respondent for alleged offences under IPC and the SC/ST Act. The Bench held that allegations of caste-based abuse were afterthoughts lacking grave suspicion.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
9 CRIR-18-2020.DOC
Meena
IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL REVISION APPLICATION NO. 18 OF 2020
STATE OF GOA, THR. …Applicant OFFICER IN CHARGE, OLD GOA POLICE STATION, OLD GOA.
Versus
AJIT BAKAL …Respondent
Mr. Sagar Dhargalkar , Additional Public Prosecutor for the applicant.
Mr. C. A. Ferreira and Mr. Sujay Kamulkar , Advocates for the respondent.
CORAM: MANISH PITALE, J. DATED: 23rd September, 2021.
P.C.:
1. By this Revision Application, the applicant – State of Goa has challenged order dated 31/10/2019 passed by the Court of Special Judge, Panaji, whereby the respondent (original accused) has been discharged of offences registered against him under the Indian Penal Code and the provisions of The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as "the Act of 1989").
2. Mr. Dhargalkar, learned Additional Public Prosecutor appeared on behalf of the applicant – State and submitted that the material on record, including the FIR, statements and supplementary statements of the victim as well as the witnesses
Page 1 of 11
23rd September, 2021
9 CRIR-18-2020.DOC
and other material placed on record with the charge-sheet was
sufficient to demonstrate that charges were required to be framed
against the respondent for offences under Sections 323, 504, 427,
506 (ii) of the IPC and Sections 3(1)(r) and 3(1)(s) of the Act of
1989. It was submitted that the ingredients of the said offences
were clearly made out on the basis of the material on record. The
Court of the Special Judge erred in conducting a virtual mini trial
at the stage of framing charges and erroneously gave a clean chit
to the respondent herein. The learned Additional Public
Prosecutor placed reliance on the judgment of the Hon'ble
Supreme Court in the case of Asim Sheriff v/s National
Investigation Agency [(2019) 7 SCC 148] to contend that the
principles laid down therein were not applied in the correct
perspective in the facts and circumstances of the present case and
therefore, the impugned order deserves interference.
3. On the other hand, Mr. C.A. Ferreira, learned Counsel appearing for the respondent submitted that perusal of the initial statement of the victim and the statements of the two alleged eyewitnesses would show that there was no whisper of any caste based abuses hurled by the respondent on the victim. It was only an afterthought on the part of the victim to have lodged a detailed additional complaint two days after the incident to rake up the issues pertaining to the Act of 1989. The alleged eyewitnesses also gave similar statements more than a month after
Page 2 of 11
23rd September, 2021
9 CRIR-18-2020.DOC
the date of the incident regarding alleged caste based abuses used
by the respondent to claim that he committed offences under the
Act of 1989. It was submitted that an independent witness i.e. a
journalist in his statement completely falsified the description of
the incident as given by the victim and the alleged eyewitnesses in
their supplementary statements. The learned Counsel also
emphasized upon the aspect of absence of ingredients of the
offences under the Act of 1989.
4. It was brought to the notice of this Court that except Section 506(ii) of the IPC, which is a cognizable offence in the State of Goa, all the other alleged offences were non-cognizable. Even with regard to the offence under Section 506(ii) of the IPC, it was contended that a bare perusal of the initial statements of the victim and the eyewitnesses would show that there was no reference to any act on the part of the respondent which would show the ingredients of the said offence. Reliance was placed on the judgments of the Hon'ble Supreme Court in the case of Swaran Singh and others v/s. State through Standing Counsel and Another [(2008) 8 SCC 435] and Madhavarao Gajanan Deshpande v/s. State of Maharashtra [2003 (4) Mh.L.J. 101].
5. Heard learned Counsel for the parties and perused the material on record. In the present case, the Court of Special Judge
Page 3 of 11
23rd September, 2021
9 CRIR-18-2020.DOC
has concluded that the statements of the witnesses and the
material on record indicated that there was an attempt to frame
the respondent for offences under the Act of 1989 and much
emphasis was placed on the fact that the allegations pertaining to
the offences under the Act of 1989 were included only in the
supplementary statements.
6. Before analyzing the material on record and the correctness or otherwise of the impugned order, it would be appropriate to refer to the principles to be applied when such a question comes up for consideration i.e. as to whether the accused deserves to face trial by framing of charges. In the case of Sajjan Kumar v/s. CBI [(2010) 9 SCC 368] the aforesaid principles have been culled out and stated as follows :
“21. On consideration of the authorities about the scope
of Sections 227 and 228 of the Code, the following
principles emerge:
(i) The Judge while considering the question of framing
the charges under Section 227 CrPC 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. The test to
determine prima facie case would depend upon the facts
of each case.
(ii) 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.
Page 4 of 11
23rd September, 2021
9 CRIR-18-2020.DOC
(iii) The 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, etc. However, at this stage, there
cannot be a roving enquiry into the pros and cons of the
matter and weigh the evidence as if he was conducting a
trial.
(iv) If on the basis of the material on record, the court
could form an opinion that the accused might have
committed offence, it can frame the charge, though for
conviction the conclusion is required to be proved beyond
reasonable doubt that the accused has committed the
offence.
(v) At the time of framing of the charges, the probative
value of the material on record cannot be gone into but
before framing a charge the court must apply its judicial
mind on the material placed on record and must be
satisfied that the commission of offence by the accused
was possible.
(vi) At the stage of Sections 227 and 228, the court is
required to evaluate the material and documents on
record with a view to find out if the facts emerging
therefrom taken at their face value disclose the existence
of all the ingredients constituting the alleged offence. For
this limited purpose, sift the evidence as it cannot be
expected even at that initial stage to accept all that the
prosecution states as gospel truth even if it is opposed to
common sense or the broad probabilities of the case.
(vii) If two views are possible and one of them gives rise
to suspicion only, as distinguished from grave suspicion,
the trial Judge will be empowered to discharge the
accused and at this stage, he is not to see whether the trial
will end in conviction or acquittal.”
Page 5 of 11 23rd September, 2021
9 CRIR-18-2020.DOC
7. In the case of Asim Sheriff v/s National Investigation Agency (supra), after quoting the aforesaid principles, the Hon'ble Supreme Court has further stated as follows:
“18. Taking note of the exposition of law on the subject
laid down by this Court, it is settled that the Judge while
considering the question of framing charge under Section
227 CrPC in sessions cases(which is akin to Section 239
CrPC pertaining to warrant cases) 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; where the material
placed before the Court discloses grave suspicion against
the accused which has not been properly explained, the
Court will be fully justified in framing the charge; by and
large if two views are possible and one of them giving rise
to suspicion only, as distinguished from grave suspicion
against the accused, the trial Judge will be justified in
discharging him. It is thus clear that while examining the
discharge application filed under Section 227 CrPC, it is
expected from the trial Judge to exercise its judicial mind
to determine as to whether a case for trial has been made
out or not. It is true that in such proceedings, the Court is
not supposed to hold a mini trial by marshalling the
evidence on record.”
8. It is clear from the above-quoted principles laid down by the Hon'ble Supreme Court that although the Court is not supposed to hold a mini trial at this stage, what is to be examined is as to whether the material placed on record along with the charge sheet discloses a grave suspicion against the accused person
Page 6 of 11
23rd September, 2021
9 CRIR-18-2020.DOC
and whether such grave suspicion would justify framing of
charges against the accused person.
9. It is also a settled principle of law that the FIR need not be an encyclopedia of the manner in which the alleged incident has occurred but the information submitted to the police must describe the incident truthfully and in the manner in which it has occurred. Thereupon offences can be registered depending on which offence under the IPC or any Special Act can be said to be made out on the basis of such statement given to the police.
10. In the present case, a perusal of the information given by the victim, which led to the registration of the FIR, would show that according to the informant/ victim an incident occurred at about 1:30am on 04/06/2018, wherein the respondent allegedly threatened the informant/victim and assaulted him with fists and blows. The statements of two alleged eyewitnesses also described the incident in identical terms and there is reference only to assault on the victim by fists and blows. On this basis, offences were registered against the respondent under Sections 504, 323, 427 and 506(ii) of the IPC.
11. Thereafter, on 06/06/2018 i.e. two days after the incident the victim submitted a detailed typewritten complaint before the police with regard to the very same incident. In the said typewritten detailed complaint, for the first time, there was a
Page 7 of 11
23rd September, 2021
9 CRIR-18-2020.DOC
reference made to use of abusive language based on caste,
indicating that offences under the Act of 1989 had been
committed. This typewritten complaint is the basis for invoking
offences under the Act of 1989. Thereafter, on 10/07/2018, i.e.
after more than a month of the alleged incident, a supplementary
statement of the victim was recorded wherein reference was made
to the alleged abusive language used by the respondent on the
basis of caste at the time of the incident. It was stated that the
detailed typewritten complaint submitted on 06/06/2018 was
after consulting an Advocate. It is interesting that the victim
stated in the supplementary statement that since he was not aware
about the Act of 1989, he had not narrated the actual caste
related words that were allegedly used by the respondent at the
time of the incident.
12. Record also shows that while the two alleged eyewitnesses i.e. one Arturo D'souza and Olencio Simoes had made no reference to any caste based abusive language used by the respondent at the time of the incident, in their supplementary statements recorded on 10/07/2018 and 11/07/2018, they also for the first time came up with the allegation of use of such caste based abusive language by the respondent at the time of the incident. A statement of one Rupesh Samant, being a journalist recorded on 18/07/2018, shows that according to him although he did hear the altercation that occurred at the time of the
Page 8 of 11
23rd September, 2021
9 CRIR-18-2020.DOC
incident, he stated that he had not heard any caste based
comments or remarks uttered by the respondent or any member
of his group.
13. The aforesaid material placed along with the charge-sheet clearly indicates that the allegations pertaining to caste based abusive language allegedly used by the respondent was an afterthought and an attempt to rake up offences under the Act of 1989. A reference to the consultation with the Advocate and alleged ignorance of the Act of 1989 being the reason for not giving such information to the police at the first instance is indicative of the manner in which the victim in the instant case has sought to rake up the offences under the Act, 1989, whereas in the first instance such allegation was not made. If the incident had occurred in the manner in which the victim and the alleged eyewitnesses in their supplementary statements claimed to have occurred, such crucial information regarding abusive language on the basis of caste used by the respondent would have been stated in the very initial statements recorded by the police. Therefore, the Court of the Special Judge is justified in concluding that the entire allegations pertaining to the Act of 1989 appeared to be an afterthought and an attempt to frame the respondent for offences under the said Act.
Page 9 of 11 23rd September, 2021
9 CRIR-18-2020.DOC
14. Insofar as reliance placed on the judgment in the case of Hitesh Verma v/s. State of Uttarakhanda and Another [(2020) 10 SCC 710] on behalf of the respondent is concerned, the question of examining ingredients of offences under the Act of 1989 would arise only if there is prima facie material to show that such offences could be alleged against the respondent in the first place. This Court agrees with the Court of Special Judge that the offences under the Act of 1989 were sought to be invoked as an afterthought and therefore, there was no suspicion much less grave suspicion raised in the present case against the respondent as regards the said alleged offences.
15. In so far as the offences with regard to IPC are concerned, except Section 506(ii) of the IPC, none of the other offences are cognizable offences. A perusal of the initial statements of the victim and the alleged eyewitnesses as also other material on record would show that even insofar as Section 506(ii) is concerned the essential ingredients thereof are not made out. Even if in the initial statements given by the victim and the eyewitnesses there is a reference to threat extended by the respondent, other than saying that the victim was threatened, there is no other material on record to indicate that the essential ingredients of the serious offence under Section 506(ii) of the IPC are made out. The material on record has to be appreciated in its entirety. It appears that an incident of a heated exchange
Page 10 of 11
23rd September, 2021
9 CRIR-18-2020.DOC
between the parties did occur, but on overall scrutiny of the
material, this Court is of the opinion that the investigating
authority failed to bring on record sufficient material for framing
of charges against the respondent.
16. The Court below has taken a possible view of the matter and in terms of the principles laid down in the above quoted judgment of the Hon’ble Supreme Court in Sajjan Kumar v/s. CBI (supra), when two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the Court is empowered to discharge the accused. Applying the said principle, this Court finds that there is no merit in the present application. Accordingly, the present application is dismissed.
MANISH PITALE, J.
MEENA VISHAL BHOIR Digitally signed by MEENA VISHAL BHOIR Date: 2021.09.28 13:45:39 +05'30'
Page 11 of 11 23rd September, 2021
3 issues framed by the court
Whether the allegations regarding caste-based abuse were grave suspicion justifying framing of charges under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.
Whether the material on record disclosed grave suspicion against the respondent for offences under sections 323, 504, 427, 506 IPC.
Whether the Court below was correctly empowered to acquit the accused at the stage of framing charges.
Colour shows how this judgement treated each authority
Asim Sheriff v. National Investigation AgencyRelied on¶1516
Asim Sheriff v/s National Investigation Agency [(2019) 7 SCC 148] · Who else cites this
Swaran Singh and Others v. StateRelied on¶4
Swaran Singh and others v/s. State through Standing Counsel and Another [(2008) 8 SCC 435] · Who else cites this
Madhavarao Gajanan Deshpande v. State of MaharashtraRelied on¶4
Madhavarao Gajanan Deshpande v/s. State of Maharashtra [2003 (4) Mh.L.J. 101] · Who else cites this
Sajjan Kumar v. CBIApplied¶816
Sajjan Kumar v/s. CBI [(2010) 9 SCC 368] · Who else cites this
Hitesh Verma v. State of UttaranchalReferred¶14
Hitesh Verma v/s. State of Uttarakhanda and Another [(2020) 10 SCC 710] · Who else cites this
3 provisions across 3 enactments
State of Goa
Ajit Bakal
Manish Pitale
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court