Partly allowed

Jayanti Waghji Heliya v. State of Maharashtra

Bombay HC11 Dec 2023WP/3748/2023

Case brief

AI extract

What is this about?

The High Court set aside a charge framed u/s 302 IPC for non-compliance with Cr.P.C. sections 226, 227, and 228. It directed the Sessions Judge to give the prosecutor an opportunity to open the case and hear both sides before framing the charge.

What did the court decide?

The charge framed against the petitioner is set aside and the judge is directed to follow procedure u/s 226, 227, and 228 Cr.P.C. by hearing both sides before framing the charge.

Jayanti Waghji Heliya Vs State of Maharashtra — Civil Procedure and Limitation | Bombay HC (2023)

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09-WP-3748-23.odt

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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CRIMINAL WRIT PETITION NO.3748 OF 2023

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Jayanti Waghji Heliya.... Petitioner
 versus
State of Maharashtra.... Respondent

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Mr. Akash Kavade, Advocate for Petitioner.

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Mr. Arfan Sait, APP for the State/Respondent.

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CORAM: SARANG V. KOTWAL, J.
DATE: 11th DECEMBER, 2023

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P.C. :

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1. The Petitioner is the original accused No.1 in Sessions

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Digitally signed by MANUSHREE MANUSHREE NESARIKAR NESARIKAR Date: 2023.12.13 11:46:56 +0530

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Case No.722 of 2021 pending before the Principal Judge,
Sessions Court, Greater Mumbai. Originally, there were two
accused. The Accused No.2 Hitesh Waghji Heliya is already
discharged from the case vide order dated 20/01/2023 passed
below Ex.5 in the said case. The present Petition is preferred to
challenge the order of framing of the charges dated
29/04/2022. Learned Judge has framed the charge u/s 302 of
the Indian Penal Code against the present Petitioner. As of today,
the present Petitioner is the sole accused in the said trial.

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Nesarikar

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2. Heard Mr. Akash Kavade, learned counsel for the

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Petitioner and Mr. Arfan Sait, learned APP for the State.

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3. The trial arose out of the investigation in
C.R.No.393/2021 dated 03/06/2021 registered at Tardeo Police
Station. The FIR is lodged by PSI Jagtap about the incident
dated 03/06/2021 which had occurred in the early hours of the
morning. The incident is described in the statement of the
eyewitness Sanjay Jadhav. He has described that on
03/06/2021, at 03.30 a.m. he saw the Petitioner’s brother
Hitesh in injured condition. His intestine had come out. There
was a stab injury. The present Petitioner brought one person at
the spot. The Petitioner had caught that person. The Petitioner
saw the condition of his brother Hitesh. He got angry. He abused
the person who was caught by him. The Petitioner assaulted that
person on his thighs and other parts below the waist with a
knife. The investigation revealed that the name of that person
was Dharmesh Bariya. The eyewitness Sanjay, the Petitioner and

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others took the injured to hospital and got him admitted. In the
meantime, the police reached the spot. Dharmesh was taken to
hospital, but he succumbed to his injuries. The investigation was
carried out and finally the Petitioner and his brother Hitesh
faced the trial.

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4. The record shows that the present Petitioner had also
lodged his own FIR vide C.R. No.394/2021 at Tardeo Police
Station u/s 307 of the I.P.C. against Dharmesh Bariya for causing
injuries to Hitesh Heliya.

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5. Learned APP states that since Dharmesh had

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succumbed to his injuries, there was no further progress in the
investigation as the matter stood abated against Dharmesh.

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6. The grievance of the learned counsel for the Petitioner
is that the procedure u/s 226, 227 and 228 of the Cr.P.C. was not
followed. The charge was framed in the absence of the Advocate
of the Petitioner. The Roznama mentions that the Petitioner was

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produced through video conferencing. He was not even
physically produced. Learned APP appearing in the case did not
open the case as required u/s 226, 227 and 228 of Cr.P.C. No
opportunity was given to the learned counsel for the Petitioner
to make his submissions. Therefore, the charges are framed
without following the due procedure under those sections.

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7. Learned counsel for the Petitioner submitted that

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discharge of the co-accused Hitesh is an important
consideration, which the learned Judge should have taken into
account while deciding whether the charge was to be framed
against the Petitioner. The record shows that the deceased was
the aggressor and had caused life threatening injury to Hitesh.

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8. Learned APP produced a certified copy of the

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Roznama. It is taken on record and marked ‘X’ for identification.
Learned APP fairly submits that the submissions raised by the
learned counsel for the Petitioner are supported by the notings
in the Roznama. There is nothing to show that the learned APP

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made submissions pointing out the charge and the proposed
evidence against the Petitioner and that the Advocate for the
Petitioner was heard before charges were framed. The Roznama
shows that the Advocate was absent.

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9. I have considered these submissions. The Roznama

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dated 29/04/2023 reads thus:

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Sr. No.3CORAM – HIS HONOUR THE SESSIONS JUDGE,
29.04.2023SHRI A. SUBRAMANIAM (C.R. NO.19)
SC 722/21APP Mr. S. E. Soshte for the Stat is present.
HC 031218 attached to Tardeo Police Station present.
Accused No.1 is in JC produced through VC.
Accused No.2 is already discharged.
Advocate for accused absent.
Accused not produced physically. Produced on VC.
Charge is explained to him on VC. Copy of plea be
forwarded to him in Jail Authorities for signature.
Accused pleaded not guilty.
Exh. C-8Exh. C-8– Charge framed.
Exh. C-9Exh. C-9– Plea of accused.
Adjourned on 11.05.2023 for compliance u/s.294
Cr.P.C.
Sessions Judge,
Gr. Mumbai.

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10. The provision of section 226, 227 and 228 of Cr.P.C. are
as follows :

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- “ Section 226 – Opening case for prosecution

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When the accused appears or is brought before
the Court in pursuance of a commitment of the case
under section 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.

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- Section 227 – Discharge

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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.

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- Section 228 – Framing of charge

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(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-

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(a) is not exclusively triable by the Court of
Session, he may, frame a charge against the
accused and, by order, transfer the case for
trial to the Chief Judicial Magistrate [or any
other Judicial Magistrate of the first class
and direct the accused to appear before the
Chief Judicial Magistrate, or, as the case
may be, the Judicial Magistrate of the first
class, on such date as he deems fit, and
thereupon such Magistrate] shall try the
offence in accordance with the procedure
for the trial of warrant-cases instituted on a
police report;

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(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.”

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11. Section 228 of Cr.P.C. refers to such consideration and

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hearing as is mentioned u/s 226 and 227 of Cr.P.C. In the
present case, there is nothing to show that the Prosecutor had

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opened the prosecution case by describing charge brought
against the Petitioner/accused and stating by what evidence he
proposed to prove the guilt of the accused/Petitioner.

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12. Section 227 of Cr.P.C. refers to the submissions on
behalf of the accused as well as the prosecution. Section 228 of
Cr.P.C. refers to the ‘hearing’ as mentioned in the earlier sections.
Therefore, it was necessary to hear the prosecution as well as
the learned counsel for the accused before framing of the
charge. In this case, it was not done and therefore, the learned
counsel for the Petitioner is justified in raising his grievance
about non-compliance of these provisions. Therefore, the
Petition deserves to be allowed to that extent.

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13. Hence, the following order :

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O R D E R

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(i)The charge framed against the Petitioner on
29/04/2023 in Sessions Case No.722 of 2021

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before the Principal Judge, Sessions Court,
Greater Mumbai, is set aside.

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(ii) The learned Judge shall follow the procedure u/s 226, 227 and 228 of Cr.P.C. by giving opportunity to both the sides and then consider the question of framing of charge.

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(iii) With these observations, the Petition is disposed of.

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(SARANG V. KOTWAL, J.)

Jayanti Waghji Heliya v. State of Maharashtra

Case brief

What is this about?

What did the court decide?

Jayanti Waghji Heliya v. State of Maharashtra

Case brief

What is this about?

What did the court decide?

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