Secretary, Minor Irrigation and Rural Engineering v Sahngoo Ram Arya and Another
Supreme Court of India

7  May  2002
C.A. Nos. 3358-59 of 2002 (Along with C.A. Nos. 3352-57 of 2002 and S.L.P.(C) Nos. 16496-97 of 2001)
The Judgment was delivered by : SANTOSH HEGDE, J.
Leave granted.
1. These two appeals arise out of an order made by the High Court of Judicature at Allahabad dated 16.3.2001 in Civil Misc. W.P. Nos. 24759 and 28512 of 1999. The original writ petitioner had filed a number of writ petitions challenging the various actions taken by the Department against him. In the said writ petitions he had made very serious allegations against Sri Markandey Chand who was then the Minister for Minor Irrigation and Rural Engineering Services in the Government of U.P. It is seen from the record that the said Minister had filed a counter affidavit denying the allegations levelled against him. In the said writ petitions, originally the High Court had passed certain interim orders staying the action initiated by the Department against which the Department had filed SLPs before this Court which challenge was allowed and this Court as per its order dated 3.4.2000 while directing the parties to maintain status quo as on the date of the said order, requested the High Court to hear and dispose of all the writ petitions within a period of 6 months from that date. After the said order of this Court, the High Court by its impugned order held that it was necessary to inquire into the allegations made against the said Minister. It directed the Central Bureau of Investigation (CBI) at Delhi to hold an inquiry into the allegations made against the said Minister (respondent No.2) as early as possible, preferably within 4 months from the date of the production of the certified copy of the impugned order.
2. It is this order that is challenged in these appeals. Mr. Mukul Rohtagi, learned Additional Solicitor General, contended before us that the High Court could not have directed an inquiry by the CBI against the Minister concerned without coming to a conclusion that there was a prima facie case to hold such an inquiry which conclusion according to him ought to be based on the material on record which obviously means the allegations made in the writ petition as also the denial of the Minister concerned should also be taken into consideration. In support of his argument, he has placed strong reliance on the judgment of this Court in Common Cause, a Registered Society vs. Union of India & Ors. 1999 Indlaw SC 503 ). Mr. G.L. Sanghi, learned senior counsel appearing for the concerned Minister, has supported the above argument and has contended that there is not even an iota of truth in the allegations made against the Minister, hence, the High Court could not have directed an inquiry.
3. Per contra, Mr. P.N. Misra, learned senior counsel appearing for the writ petitioner, pointed out that the allegations against the Minister are very serious and the same pertained to many incidents and similar allegations have been made against the Minister by a large number of aggrieved Government servants before the High Court in their respective writ petitions. He said that there was sufficient material to come to the conclusion that the allegations made against the Minister are genuine, thus, he supported the impugned order of the High Court.
4. While none can dispute the power of the High Court u/art. 226 to direct an inquiry by the CBI, the said power can be exercised only in cases where there is sufficient material to come to a prima facie conclusion that there is a need for such inquiry. It is not sufficient to have such material in the pleadings. On the contrary, there is a need for the High Court on consideration of such pleadings to come to the conclusion that the material before it is sufficient to direct such an inquiry by the CBI. This is a requirement which is clearly deducible from the judgment of this Court in the case of Common Cause (supra). This Court in the said judgment at paragraph 174 of the report has held thus:
"The other direction, namely, the direction to CBI to investigate" any other offence
"is wholly erroneous and cannot be sustained. Obviously, direction for investigation can be given only if an offence is, prima facie, found to have been committed or a person's involvement is prima facie established, but a direction to CBI to investigate whether any person has committed an offence or not cannot be legally given. Such a direction would be contrary to the concept and philosophy of "LIFE" and "LIBERTY" guaranteed to a person u/art. 21 of the Constitution. This direction is in complete negation of various decisions of this Court in which the concept of "LIFE" has been explained in a manner which has infused "LIFE" into the letters of Article 21"
5. It is seen from the above decision of this Court that the right to life u/art. 21 includes the right of a person to live without being hounded by the Police or the CBI to find out whether he has committed any offence or is living as a law-abiding citizen. Therefore, it is clear that a decision to direct an inquiry by the CBI against a person can only be done if the High Court after considering the material on record comes to a conclusion that such material does disclose a prima facie case calling for an investigation by the CBI or any other similar agency, and the same cannot be done as a matter of routine or merely because a party makes some such allegations. In the instant case, we see that the High Court without coming to a definite conclusion that there is a prima facie case established to direct an inquiry has proceeded on the basis of 'ifs' and 'buts' and thought it appropriate that the inquiry should be made by the CBI. With respect, we think that this is not what is required by the law as laid down by this Court in the case of Common Cause (supra).
6. Just to point out that there is no prima facie finding by the High Court, while directing an inquiry by the impugned order, we would like to extract the following few sentences:
7. At page 8 of the impugned judgment, it is stated:
"It is also alleged that the petitioner is being harassed owing to the reason that he was not amenable to the illegal demands made by the Minister concerned". The High Court further observed:" We however, forbear from excoriating the Minister on the basis of what has been said in the said News Magazine at this stage". Proceeding further, the Court observed:" If the allegations in the writ petitions are correct, the rights of the respondents must be vindicated and the party at whose instance such orders have been issued in bad faith, his continuance in the office is not in public interest". At page 9 of the judgment, the learned Judges observed." If the allegations made in the these and various other writ petitions are found to have any ring of truth, no sane person can claim that the affairs of the State are being run in accord with the Constitution."
8. We make it clear that we have not expressed any opinion in regard to the merits of the allegations or the reply thereto because this is something which has to be done by the High Court in the first instance.
9. The appeals are allowed and the impugned judgment is set aside. The matters are remanded to the High Court.
S.L.P.(C) Nos. 5097-5102/2001:
10. These appeals are preferred against the order made by the High Court of Judicature at Allahabad in Civil Misc. W.P. No. 47130 of 2000 etc. on 1.2.2001. A Division Bench of the High Court of Allahabad by the impugned judgment has held that the petitioner in the said writ petitions has an alternate remedy by way of petitions before the U.P. Public Service Tribunal (the tribunal), and had permitted the writ petitioner therein to approach the tribunal and directed the tribunal to entertain any such petition to be filed by the writ petitioner without raising any objection as to limitation. There was a further direction to the tribunal to decide the matter expeditiously.
11. Mr. Sunil Gupta, learned counsel appearing for the petitioner, contended that the remedy before the tribunal under the U.P. Public Service Tribunal Act is wholly illusory inasmuch as the tribunal has no power to grant an interim order. Therefore, he contends that the High Court ought not to have relegated the petitioner to a fresh proceeding before the said tribunal. We do not agree with these arguments of the learned counsel. When the statute has provided for the constitution of a tribunal for adjudicating the disputes of a Government servant, the fact that the tribunal has no authority to grant an interim order is no ground to by-pass the said tribunal. In an appropriate case after entertaining the petitions by an aggrieved party if the tribunal declines an interim order on the ground that it has no such power then it is possible that such aggrieved party can seek remedy u/art. 226 of the Constitution but that is no ground to by-pass the said tribunal in the first instance itself. Having perused the impugned order, we find no infirmity whatsoever in the said order and the High Court was justified in directing the petitioner to approach the tribunal. In the said view of the matter, the appeals are dismissed. No costs.
SLP(C) Nos. 16496-97/2001:
12. In view of our judgment in C.A. Nos. ...../2002@ SLP(C) Nos. 6126-27 of 2001, no further orders are necessary in these petitions. They are disposed of accordingly.


Supdt. and Remembrancer of Legal Affairs, West Bengal v Anil Kumar Bhunja and Others
Supreme Court of India

23 August 1979
Criminal Appeal No. 98 of 1973.
The Judgment was delivered by : Ranjit Singh Sarkaria, J.
1. Whether the giving of fire-arms by a person holding a licence for repairing and dealing in firearms for repairs to mechanic who holds no such licence, but does the repair job at his workshop at a place different from the factory or place of business of the licence holder, amounts to "delivery of those arms into the possession of another person" within the contemplation of Section 29(b) of the Arms Act, 1959 (For short, called 'the Act'), is the principal question that falls to be answered in this appeal by special leave directed against a judgment, dated August 16, 1972, of the High Court of Calcutta. It arises in these circumstances:
On or about April 17, 1971, the Calcutta Police while investigating a case, went to premises No. 4, Ram Kanai Adhikari Lane in Calcutta, and, on the ground floor of the building, they discovered a workshop run by Mrityunjoy Dutta, who was then working on a re- volver. In the said premises, the police found several other guns, revolvers and rifles. All these fire-arms were seized by the police.
2. Mrityunjoy Dutta claimed to have received one of the guns so seized from one Matiar Rahaman gun-licensee and the rest from respondents 1 to 4 for repairs. Mrityunjoy Dutta had no valid licence to keep or repair these fire-arms under the Act. Respondents 1 to 4, however, were holding licences under the Act to run the business of repairing and dealing in fire-arms.
3. On April 17, 1970, the police charge-sheeted Mrityunjoy Dutta, Matiar Rahaman and respondents 1 to 4 to stand their trial in the Court of the Presidency Magistrate, in respect of offences under Sections 25(1) (a) and 27 of the Act. The trial Magistrate, while considering the question of framing charges, held that there were materials to make out a prima facie case under Section 25(1) (c) of the Act against Mrityunjoy Dutta and under Section 29(b) of the Act against Matiar Rahaman, and charged them accordingly. So far as respondents 1 to 4 are concerned, the Magistrate took the view that the giving of the arms to the accused Dutta, by respondents 1 to 4 for the limited purpose of repairs, did not amount to delivery of possession of those arms within the meaning of Section 29(b) of the Arms Act (Act IV/1959), and in the result, he discharged the respondents by an order, dated November 17, 1971.
4. Aggrieved, the State of West Bengal filed a Criminal Revision against the Magistrate's order before the High Court, contending that delivery of the arms, into the possession of a person who did not have a valid licence for repairs of fire-arms, is not only a contravention of the provisions of Section 5 of the Act, but also amounts to delivery of fire-arms by the respondents into the possession of Mrityunjoy Dutta and, as such, the respondents were prima facie liable for an offence under Section 29(b) of the Act. The Division Bench of the High Court, who heard the Revision, dismissed it with the reasoning, that Respondents 1 to 4, could not be said to have delivered the fire-arms, concerned into the possession of Mrityunjoy Dutta within the meaning of Section 29(b) of the Act, because the respondents who possessed valid licences for repairs as well as for sale of fire-arms, had given only temporary custody of those arms to Mrityunjoy Dutta for the limited purpose of carrying the repair job, while the effective control over those arms all the time remained with the respondents. In its view, there is no delivery of possession of the fire-arms so long as control over the arms and the authority to use those arms is not transferred to the custodian.
Hence, this appeal.
5. The whole case pivots around the interpretation and application of the term "possession", used in Section 29(b) of the Act.
Learned counsel for the appellant-State contends that the question whether a person is in possession of an arm or had transferred and delivered it to another, is largely one of fact. It is submitted that in the instant case, there were three stark facts which more than any other, unmistakably showed that the respondents had given possession of these fire-arms to Mrityunjoy Dutta:
(a) Mrityunjoy Dutta was not a servant or employee of the respondents, but was running his own business of repairing fire-arms.
(b) The fire-arms were handed over to Mrityunjoy Dutta to be repaired at his own residence-cum-workshop which was not the respondents licensed place of business, and was in the exclusive control and occupation of Dutta.
(c) Mrityunjoy Dutta had no licence for repairing or keeping fire-arms and the respondents were either aware of this fact or did not ascertain it before delivering the fire-arms to him. It is maintained that "possession, within the purview of Section 29(b) means immediate possession, and consequently, delivery of even temporary possession and control to an unauthorised person falls within the mischief of the Section. It is further urged that the delivery of fire-arms for repairs to the unlicensed mechanic for repairs, to be carried out at a place other than the factory or place of business specified in the licence of the owners, will amount to an offence under Section 30 read with Section 5 of the Act also.
6. As against this, Mr. Anil Kumar Gupta has addressed lengthy arguments to support the judgments of the Courts below. The sum and substance of his arguments is that the mechanic, Dutta, was only in temporary custody of these arms for the limited purpose of repairing them, as an agent of the owners, who being licensees in Form IX entitled to repair and keep these fire-arms, throughout remained in their lawful possession and control. It is maintained that the delivery of possession contemplated by Section 29(b) is something more than entrusting the arms to an agent for the limited purpose of repairs. In support of this contention, Mr. Gupta has cited several decisions. Particular reliance has been placed on Manzur Hussain v. Emperor Sadh Ram v. State; Emperor v. Harpal Rai; A. Malcom v. Emperor; Emperor v. Koya Hansji; Parmeshwar Singh v. Emperor 1933 Indlaw PAT 140; Gunwantlal v. State of Madhya Pradesh 1972 Indlaw SC 558; and Sullivan v. Earl of Caithness. Reference was also made to Halsbury's Laws of England, Vol. 25, Third Edition, page 874, and Salmond's Jurisprudence, 11th Edition.
7. It was next contended that even if the term "possession" in Section 29(b) is susceptible of two interpretations, the one favourable to the accused be adopted. In this connection reference has been made to Woodage v. Moss.
8. The last submission of Mr. Gupta is that since these criminal proceedings have been brooding over the heads of the respondents for the last eight years, this Court should not, even if it reverses the opinion of the courts below, direct the Magistrate to frame charges against the respondents and to proceed with the trial. It is emphasised that in any event, the offence disclosed against the respondents was purely technical. "Possession" is a polymorphous term which may have different meanings in different contexts. It is impossible to work out a completely logical and precise definition of "possession" uniformly applicable to all situations in the contexts of all statutes. Dias & Hughes in their book on Jurisprudence say that if a topic ever suffered from too much theorizing it is that of "possession". Much of this difficulty and confusion is (as pointed out in Salmond's Jurisprudence, 12th Edition, 1966) caused by the fact the possession is not purely a legal concept. "Possession", implies a right and a fact; the right to enjoy annexed to the right of property and the fact of the real intention. It involves power of control and intent to control. (See Dias and Hughes)
9. According to Pollock & Wright "when a person is in such a relation to a thing that, so far as regards the thing, he can assume, exercise or resume manual control of it at pleasure, and so far as regards other persons, the thing is under the protection of his personal presence, or in or on a house or land occupied by him or in any receptacle belonging to him and under his control, he is in physical possession of the thing".
10. While recognising that "possession" is not a purely legal concept but also a matter of fact; Salmond (12th Edition, page 52) describes "possession, in fact", as a relationship between a person and a thing.
According to the learned author the test for determining
"whether a person is in possession of anything is whether he is in general control of it".
11. In Gunwantlal, this Court while noting that the concept of possession is not easy to comprehend, held that in the context of Section 25(a) of the Arms Act, 1959, the possession of a fire-arm must have, firstly, the element of consciousness or knowledge of that possession in the person charged with such offence, and secondly, he has either the Actual physical possession of the fire-arm, or where he has not such physical possession, he has nonetheless a power or control over that weapon. It was further recognised that whether or not the accused had such control or dominion to constitute his possession of the fire-arm, is a question of fact depending on the facts of each case. In that connection, it was observed:
"In any disputed question of possession, specific facts admitted or proved will alone establish the existence of the de facto relation of control or the dominion of the person over it necessary to determine whether that person was or was not in possession of the thing in question".
12. With this guiding criterion in mind, the Magistrate had to see whether the facts alleged and sought to be proved by the prosecution prima facie disclose the delivery of the fire-arms by the respondents into the possession of Mrityunjoy Dutta, without previously ascertaining whether the recipient had any licence to retain and repair those fire-arms within the contemplation of Section 29(b). It may be remembered that the case was at the stage of framing charges; the prosecution evidence had not yet commenced. The Magistrate had therefore, to consider the above question on a general consideration of the materials placed before him by the investigating police officer. At this stage, as was pointed out by this Court in State of Bihar v. Ramesh Singh 1977 Indlaw SC 50, the truth, veracity and effect of the evidence which the prosecutor proposes to adduce are not to be meticulously judged. The standard of test, proof and judgment which is to be applied finally before finding the accused guilty or otherwise, is not exactly to be applied at the stage of Section 227 or 228 of the Code of Criminal Procedure, 1973. At this stage, even a very strong suspicion founded upon materials before the Magistrate, which leads him to form a presumptive opinion as the existence of the factual ingredients constituting the offence alleged; may justify the framing of charge against the accused in respect of the commission of the offence.
13. Now, in the instant case, at that initial stage, it was apparent from the materials before the Magistrate, that the basic facts proposed to be proved by the prosecution against the accused-respondents were as follows:
(a) That the respondents held licences, inter alia, in Form IX for repairing and dealing in fire-arms at the place of business, factory or shop specified in the Column 3 of their licences.
(i) The respondents handed over the fire-arms in question to Mrityunjoy Dutta for repairs.
(ii) Mrityunjoy Dutta did not have any license for repairing or dealing in fire-arms;
(iii) (a) Mrityunjoy Dutta was doing the repair job in respect of these fire-arms at his own residence-cum-workshop which was situated at a place different from the business places specified in the licences of the respondents.
(b) The fire-arms in question were seized from the workshop-cum-house in the occupation and control of Mrityunjoy Dutta, when the latter was actually in the Act of repairing working on a revolver.
14. There is nothing in these materials to show that at the time of the seizure of these fire-arms, any of the respondents or any Manager of their concerns, was found present and personally supervising the repair work that was being done by the mechanic, Mrityunjoy Dutta. These positive and negative facts, in conjunction with other subsidiary facts, appearing expressly or by implication from the materials which were before the Magistrate at that initial stage were, at least, sufficient to show that there were grounds for presuming that the accused-respondents had committed offences under Sections 29(b) and 30 of the Act. Facts (iii) (a) & (b) listed above, inferentially show that by handing over the fire-arms to Mrityunjoy Dutta to be repaired at the latter's independent workshop, the respondents had divested themselves, for the time being, not only of physical possession but also of effective control over those fire-arms. There is nothing in those materials to show that before handing over those firearms to Mrityunjoy Dutta for repairs, the respondents had done anything to ascertain that Mrityunjoy Dutta was legally authorised to retain those arms even for the limited purpose of repairing them.
Thus, prima facie the materials before the Magistrate showed that the respondents had delivered the fire-arms in question into the possession of Mrityunjoy Dutta, without previously ascertaining that he was legally authorised to have the same in his pos- session, and as such, the respondents appeared to have committed and offence under Section 29(b) of the Act. Further, by allowing the fire-arms to be removed to a place other than the places of their business or factory specified in Column 3 of their licences in Form IX, the respondents appear to have contravened condition 1(c) of their licence, the material part of which reads as under:
"(c) This licence is valid only so long as the licensee carries on the trade or business in the permises shown in Column 3 thereof.. "
15. Contravention of any condition of the licence amounts to an offence punishable under Section 30 of the Act. In sum, the materials before the Magistrate, prima facie disclosed the commission of offences under Sections 29(b) and 30 of the Act by respondents 1 to 4. The Magistrate was thus clearly in error in discharging these accused-respondents. We do not think it necessary to notice and discuss in detail the various decisions cited by the counsel at the bar, because, as mentioned earlier, the question whether a particular person is or continues to be in possession of an arm (in the context of the Act) is, to a substantial extent, one of fact. This question, often resolves into the issue: whether that person is or continues to be, at the material time, in physical possession or effective control of that arm. This issue, in turn, is a mixed issue of fact and law, depending on proof of specific facts or definite circumstances by the prosecution.
16. At this preliminary stage, therefore, when the prosecution has yet to lead evidence to prove all the facts relevant to substantiate the ingredients of the charge under Section 29(b) levelled against these respondents, a detailed discussion of the principles enunciated in the cited decisions, is apt to partake of the character of a speculative exercise. It will be sufficient to say in passing that almost all the decisions of the High Courts cited before us were cases under the 'Old' Arms Act (Act 11 of 1878). The ratio of cases decided under the 'Old' Act should not be blindly applied to cases under the Act of 1959 which has, in several aspects modified or changed the law relating to the regulation of arms. For instance under the 'Old' Act, repairing of arms without a licence, was not punishable, as 'repair' was different and distinct from manufacture. In Murli v. Crown and Tola Ram v. Crown it was held that a person in temporary possession of arms without a licence, for repairing purposes was not guilty under Section 19 of the Act of 1878. But section 5 of the present Act of 1959, has materially altered this position by requiring the obtaining of a licence for-repairing fire-arms (or other arms if so prescribed).
Further, the word "keep" occurring in Section 5 of the 'Old' Act has been replaced by the words "have in his possession" in the present Section. Then in three of these cases, namely, Manzur Husain, Sadh Ram v. State, Emperor v. Harpal Rai, the license-holder sent his licensed firearm for repairs through a person who had the license-holders' oral authority, expressly or impliedly given, to carry it to the repairer. It was held that the carrier, though he held no licence to keep the fire-arm, could not be said to be in "possession" of it, nor could the license-holder be said to have parted with the "possession" of the fire-arm or delivered its possession to an unauthorised person. Similarly, in one of the cases cited, the license-holder sent his fire-arm to the Magistrate through his servant or agent for getting the licence renewed. In that case also, it was held that the servant was not guilty of any offence for having in his possession or "carrying" a gun without a licence. The possession was held to be still with the license-holderowner of the weapon.
17. The rule enunciated in these decisions has been given a limited recognition in the Proviso to Section 3 of the Act of 1959. Under this Proviso, if a licensed weapon is carried to an authorised repairer by another having no licence, he will not be guilty for carrying that fire-arm, if he has a written authority of the license-holder for carrying that weapon to a repairer. Similarly, for carrying a licensed fire-arm to the appropriate authority for renewal of the license, written authority of the owner of the weapon is essential to bring him within the protection of the Proviso. In some of these cases referred to by the counsel, a person was carrying or was in custody of a licensed weapon for use by the licensee. Now, the Proviso to Section 3 of the present Act, protects such carriers or custodians of weapons for use by the license holder, only if they do so in the presence of the license-holder concerned. We have referred, by way of example, some of these changes brought about by the Act of 1959, only to impress on the trial court that in considering the application of the ratio of the cases decided under the Act of 1878, to those under the present Act great caution and discernment is necessary.
18. For all the reasons aforesaid, we allow this appeal and set aside the orders of the Courts below whereby respondents 1 to 4, herein, were discharged. Although offences under Section 29(b) and 30 of the Act are summons cases, the Magistrate has followed the warrant procedure, obviously because an offence under Section 25 of the Act, for which Mrityunjoy Dutta was being jointly tried with Respondents 1 to 4, was a warrant case. Moreover, trial of a summons case as a warrant case does not amount to an illegality, but is a mere irregularity that does not vitiate the trial unless there is prejudice.
We therefore, send the case back to the trial Magistrate with the direction that he should frame charges in respect of offences under Sections 29(b) and Section 30 of the Act against the accusedrespondents 1 to 4 and proceed further with the trial in accordance with law. We decline the submission made on behalf of these respondents that on account of their prolonged harassment and expense, which are the necessary concomitants of protracted criminal proceedings extending over eight years, they should not be put on trial now for offences which, according to the counsel, are merely technical. Even so, we think, this is a circumstance to be taken into consideration by the trial court in fixing the nature and quantum of sentence, in the event of the accused being found guilty.
19. Before parting, with this judgment, we will however, set it down by way of caution that the Magistrate while assessing the evidence and recording his findings on its basis with regard to proof or otherwise the factual ingredients of the offences with which the accused may stand charged, shall not allow himself to be unduly influenced by anything said in this judgment in regard to the merits of the case.
Appeal allowed


Sh. Satish Mehra v Delhi Administration
Status:
							 Negative Judicial Treatment
Supreme Court of India

31 July 1996
Cr.A. No. 1385 of 1995
The Judgment was delivered by: K. T. Thomas, J.
1.  Some eerie accusations have been made by a wife against her husband. Incestous sexual abuse, incredulous ex facie, is being attributed to the husband. Police on her complaint conducted investigation and laid charge sheet against the appellant, who has filed this Criminal Appeal special leave as he did not succeed in his approach to the High court at the F.I.R. stage itself.
2.  More details of the case are these: Appellant (Satish Mehra) and his wife (Anita Mehra) were living in New York ever since their marriage. They have three children among whom the eldest daughter (Nikita) was born of 2nd April, 1988. Before and after the birth of the children relationship between husband and wife was far from cordial. Husband alleged that his wife, in conspiracy with her father, had siphoned off a whopping sum from his bank deposits in India by forging his signature. He also alleged that his wife is suffering from some peculiar psychiatric condition. He approached a court at New York for securing custody of his children. On 31.10.1992 his wife left his house with the children and then filed a complaint with Saffolk County Police Station (United States) alleging that her husband had sexually abused Nikita who was then aged four. United States police at the local level moved into action. But after conducting detailed investigation concluded that the allegations of incestuous abuse are untrue.
3.  On 7.3.1993, appellant's wife (Anita) returned to India with her children. In the meanwhile Family Court at New York has ordered that custody of the children be given to the husband and a warrant of arrest was issued against Anita for implementation of the said order.
4.  The battle field between the parties was thereafter shifted to India as she came back home. On 19.3.1993, Anita filed a complaint to the "Crime Against Women Cell" (CAW Cell for short) New Delhi in which she stated that her husband committed sex abuses with Nikita while they were in United States and further alleged that appellant committed certain matrimonial misdemeanour on his wife. But the complain was close but want of jurisdiction for the CAW Cell to investigate into what happened in United States. Appellant returned to India on 127.1993 and thereafter filed a petition for a writ of Habeas Corpus for securing the custody of the children.
5.  The present case is based on a complaint filed by Anita before Greater Kailash Police station on 14.8.1993. FIR was prepared and a case was registered as Crime No. 197/93 for offences u/ss. 354 and 498-A of Indian Penal Code. On 25.8.1993, the investigating officer moved the Sessions Court for adding S. 376 of the IPC also. The case was charge sheeted by the police and it was committed to the Court of Sessions.
6.  As committal proceedings took place during the pendency of the Special Leave Petition, this Court directed the Sections judge on 22.2.1996 "to apply its mind to the case committed and see whether a case for framing charge/charges has been made out or no". Learned Session judge, by a detailed order, found that no charge under Section 498-A IPC could be framed against the appellant, but charge for offences u/ss. 354 and 376 read with S. 511 of IPC should be framed against him. Accordingly, the charge has been framed with the said two counts.
7. First count in the charge is that appellant had outraged the modesty of his minor daughter aged about 3 years during sometime between March and July, 1991 at D- 108, East of Kailash, New Delhi by fondling with her vagina and also by inserting bottle into it and thereby committed the offence u/s. 354 of the IPC. Second count in the charge is that he made an attempt to commit rape on the said infant child (time and place are the same) and thereby committed the offence under S. 376 read with S. 511 of the IPC.
8.  At this stage it is superfluous to consider whether the FIR is liable to be quashed as both sides argued on the sustainability of the charge framed by the Sessions Judge. We are, therefore, considering the main question whether the Sessions Court should have framed the charge against the appellant as it did now.
9.  Considerations which should weigh with the Sessions Court at this state have been well designed by the Parliament through S. 227 of the Code of Criminal Procedure (for short 'the Code') which reads thus:
"227. 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 there is not sufficient ground for proceeding accused and record his reasons for so doing."
10. S. 228 contemplates the stage after the case survives the stage envisaged in the former section. When the Court is of opinion that there is ground to presume that the accused has committed and offence the procedure laid down therein has to be adopted. When those two section are put juxtaposition with each other the test to be adopted becomes discernible: Is there sufficient ground for proceeding against the accused? It is axiomatic that the standard of proof normally adhered to at the final stage is not to be applied at the stage where the scope of consideration is where there is "sufficient ground for proceeding". (Vide State of Bihar v. Ramesh Singh, AIR 1977 SO 2018 1977 Indlaw SC 50, and Supdt, & Remembrancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja, 1979 Cr. L.J. 1390: AIR 1980 SC 52 1979 Indlaw SC 548).
11.  In Alamohan Das v. State of West Bengal (AIR 1970 SC 863) 1968 Indlaw SC 197 Shah, j. (as he then was) has observed in the context of considering the scope of committal proceedings u/s. 209 of the old Code of Criminal Procedure (1898) that a Judge can sift and weight the materials on record by seeing whether there is sufficient evidence for commitment. It is open to the Court to weight the total effect of the evidence and the documents produced to check whether there is any basic infirmity. Of course the exercise is to find out whether a prima facie case against the accused has been made out.
12.  In Union of India v. Profullakumar- 1979 Cr.L.J. 154 1978 Indlaw SC 252, this Court has observed that the Judge while considering the question of framing the charge has "the undoubted power to sift and wight the evidence for the limited purpose of finding out whether a prima facie case against the accused has been made out". However, there Lordships pointed out that the test to determine a prima facie case would naturally dependent upon the facts of each case and it is difficult to lay down a rule of universal application. "By and large, however, if who view are equally possible and the Judge is satisfied that the evidence produced before him gives rise to some suspicion but not grave suspension, the Judge would be fully within his right to discharge the accused". At the same time the Court cautioned that a roving enquiry into the pros and cons of the case by weighing the evidence as if he was conducting the trial is not expected or even warranted at this stage.
13.  An incidental question which emerges in this context is whether the Session Judge can look into any material other than those produced by the prosecution. S. 226 of the Code obliges the prosecution to describe the charge brought against the accused and to state by what evidence the guilt of the accused would be proved. The Next provisions enjoins on the Session Judge to decide whether there is sufficient ground to proceed against the accused. In so deciding the Judge has to consider
(1) the record of the case and
(2) the documents produced there with.
14.  He has then to hear the submissions of the accused as well as the prosecution on the limited question whether there is sufficient ground to proceed. What is the scope of hearing the submissions? Should it be confined to hearing oral arguments alone? Similar situation arise u/s. 239 of the Code (which deals with trial of warrant cases on police report). In that situation the Magistrate has to afford the prosecution and the accused an opportunity of being heard besides considering the police report and the documents sent therewith. At these two State the Code enjoins on the Court to give audience to the accused for deciding whether it is necessary to proceed to the next State. It is a matter of exercise of judicial mind. There is nothing in the Code which shrinks the scope of such audience to oral arguments. If the accused succeeds in producing any reliable material at that stage which might fatally affect even the very sustainability of the case, it is unjust to suggest that no such material shall be looked into by the Court at that stage. Here the "ground" may be any valid ground including insufficiency of evidence to prove charge.
15.  The object of providing such an opportunity as is envisaged in S. 227 of the Code is to enable the Court to decide whether it is necessary to proceed to conduct the trial. If the case ends there it gains a lot of time of the Court and saves much human efforts and cost. If the materials produced by the accused even at that early stage would clinch the issue, why should the Court shut it out saying that such documents need be produced only after wasting a lot more time in the name of trial proceedings.  Hence, we are of the view that Sessions Judge would be within his powers to consider even material which the accused may produce at the stage contemplated in S. 227 of the Code.
16.  But when the Judge is fairly certain that there is no prospect of the case ending in conviction the valuable time of the Court should not be wasted for holding a trial only for the purpose of formally completing the procedure to pronounce the conclusion on a future date. We are under heavy pressure of work-load. If the Sessions Judge is almost certain that the trial would only be an exercise in futility or a sheer waste of time it is advisable to truncate or ship the proceedings at the stage of S. 227 of the Code itself.
17.  In the present case learned Session Judge has missed certain germane aspects. Apart from the seemingly incredulous nature of the accusations against a father that he molested his infant child (who would have just passed her suckling stage the) the Sessions Judge out not to have overlooked the following telling circumstances.
18.  The complaint made by her with the New York police that her husband committed sexual offences against her 18 months old female child was investigated by the New York police and found the complaint bereft of truth hook, line and sinker. The present charge is that the appellant committed such offences against the same child at East Kailash, New Delhi sometime during March to July, 1991. There is now no case of what happened in United States. There is now no case of what happened in United States. The Sessions Judge should have noted that appellant's wife has not even remotely alleged in the complaint filed by her on 19.3.1993 before CAW Cell , New Delhi that appellant has done anything like that while he was in India. Even the other complaint. petition (on which basis the FIR was prepared) is totally silent about a case that appellant did anything against his daughter anywhere in India.
when we perused the statement of Anita Mehra (second respondent) we felt no doubt that the has been brimming with acerbity towards the petitioner on account of other causes. She describes her marital life with petitioner as 'extremely painful and unhappy from the very inception". She complains that petitioner has "a history of irrational outbursts of temper and violence". She accused him of being alcoholic and prone to inflicting server physical violence on her form 1980 onwards. Thus her attitude to the petitioner, even de hors the allegation involving the child, was vengeful. We take into account the assertion of the of the petitioner that the present story involving Nikita was concocted by the second respondent to wreak her vengeance by embroiling him in serious criminal cases in India so that the could be nailed down here and prevent him from going back to U.S.A.
19. While hearing the arguments we ascertained whether the spouses could settle their differences. Second respondent, who to was present in court, made an offer through her counsel that she could agree for annulling the criminal proceedings against the petitioner on the condition that he should withdraw his claims on the bank deposits and would also relinquish his claim for custody of the children, and further he should concede for a divorce. In response to the said conditional offer, petitioner agreed to give up all his claims on the large amounts in bank deposits, and further agreed to have the divorce. But he stood firm that on no account custody of the children could go to the second respondent but if made to, subject to his rights of visitation. This, he said, is because he is convinced that second respondent is unsuitable to be entrusted with the care of the children.
20.  In the above context petitioner drew our special notice to a medical report issued by Dr. Prabha Kapoor (Children Medical Centre, Jorbagh, New Delhi) On 26.7.1992. It is stated in report, that Nikita was brought to the doctor by the second respondent and on examination of the genetals of the child the doctor noticed " a wide vaginal opening -wider than would be expected of her age group." On the strength of the aforesaid medical report, petitioner made a frontal attack on second respondent, alleging that in order concoct medical evidence against him the little child's genitals would have been badly manipulated by its mother. To substantiate this allegation he drew our attention to the U.S. police report, in which there is mention of a medical examination conducted on Nikita by a U.S. doctor (Dr. Gordon) on 24.11.92.
21.  That doctor pointed out that there was absolutely no indication of any sexual abuse when the child was physically examined. If the medical examination done on the child in November, 1992 showed such normal condition, petitioner posed the question -who would have meddled with the child's genitals before 26.7.93, to case such a widening of the vaginal office? (We now remember again that, as per present case, the last occasion when the petitioner should have abused the child was in July, 1991).
22. The aforesaid question, posed by the petitioner in the context of expressing grave concern over what the mother might do with the little female child for creating evidence of sex abuse, cannot be sideline by us in considering whether the case should proceed to the trial stage.
23.  Petitioner invited out attention to the answers which Mrs. Veena Sharma (of CAWC) has elicited from Nikita, a verbatim reproduction of which is given in the counter affidavit filed by the second respondent. The said interrogation record reveals that Mrs. Veena Sharma has practically put on the tongue of the little girl that her father had molested her. The following questions and answers can bring the point home the questions. The questioner asked the child "what your dady did with you" and the child answered that he put his finger (and showed her private part). Not being satisfied with the answer the next question put to the child was "Dady puts what else". Then Nikita answers "Dady puts his bottle".
24. We noticed with disquiet that the questioner drew the picture of the petitioner -face body and then asked certain questions such as "where is papa's bottle? Is it on the cupboard?" The child kept looking at the drawn sketch and pointed to the part between legs. Questioner then asked if anything was missing in the picture, to which Nikita Answered "glesses". After the child again pointed to the private parts between the legs, the questioner wanted the child to draw "papa's bottle". But then the child told her "you do it." The questioner at the stage had the temerity to draw the picture of the private parts of child's father. We are much disturbed at the manner in which the little child was interrogated by the said officer of CAW Cell. At any rate we have no doubt that the purpose of such questions was to lead the child unmistakably to the tutored answers.
25.  Even overlooking all the inherent infirmities shrouding the testimony of a tiny tot speaking about what her further did when she was aged 3 and even ignoring the appellant's persistent submission that the little child was briskly tutored by her mother to speak to the present version, There is no reasonable prospect of the sessions court relaying on such a testimony to reach the conclusion that the prosecution succeeded in proving the offence charged beyond all reasonable doubt.
26.  Over and above that, what would be the consequence if this nebulous allegation is allowed to proceed to the trial stage. We foresee that Nikita, the child witness, now eight years and four month old, mus necessarily be subjected to cross-questions involving sex and sex organs. The traumatic impact on the child when she would be confronted by volley of questions dealing with such a subject is a matter of concerned to us. We cannot brush aside the submission of the appellant that such an ordeal would inflict the appellant that such an ordeal would inflict devastating impairment on the development of child's personality. Of course, if such a course is of any use to the cause of justice, we may have to bear with it as an inevitable course of action to be resorted to. But in this case, when the trial is going to be nothing but a farce, such a course of action should not be allowed to take place on account of the impeding consequences befalling an innocent child.
27. After adverting to the above aspects and bestowing our anxious consideration we unhesitatingly reach the conclusion that there is no sufficient ground to proceed to the trial in this case.
28.  We, therefore, quash the proceedings and the charge framed by the Sessions Judgement and discharge the appellant. The appeal would stand allowed.
Appeal allowed.


Niranjan Singh Karam Singh Punjabi Andors Etc. Etc. v Jitendra Bhimaraj Bijje And Ors. Etc. Etc.
Supreme Court of India

7 August 1990
Criminal Appeal Nos. 703, 7 12 of 1989 and 13 of 1990
The Judgment was delivered by : A. M. Ahmadi, J.
1.  These three appeals arise out of the charge levelled by the police against the five petitioners of the above special leave petition u/s. 3 of the Terrorists and Disruptive Activities (Prevention) Act, 1987, (hereinafter called 'the Act'), Sections 302, 307 read with Sections 147, 148 and 149 IPC and S. 37 of the Bombay Police Act, 1951, for the murder of one Raju alias Avtar Singh, son of the appellant of Criminal Appeal No. 703/89, and for injuries caused to his companion Keshav Vitthal, the first informant. The facts giving rise to these proceedings are as under:
2.  On the afternoon of the 12th July, 1989 when Raju and his companion Keshav were proceeding on a motor-cycle at about 3.00 p.m. they were intercepted by the accused Jitendra and one another known as a wrestler. Following some altercation and heated exchange of words between them, the other three accused persons arrived at the spot. Two of them were armed with knives and the third possessed an iron-rod. On seeing them Keshav who was on the pillion seat took to his heels whereupon Raju who was in the driver's seat abandoned the motor-cycle and ran in another direction. Two of the accused persons ran after Raju while the others including the wrestler chased Keshav. On being over-taken accused Vijay gave a knife blow on the chest of Keshav and his companion Santosh dealt blows with the iron-rod. Thereafter all the three fled from the scene of occurrence. The Other two who had chased Raju are alleged to have killed him as he was found lying in an unconscious condition on the road. Both the injured were removed to the hospital. Raju succumbed to the injuries soon after reaching the hospital. Keshav, however, responded to medical treatment and has survived to give evidence.
3.  On the same day at about 5.30 p.m. the first information report was lodged by the injured Keshav. On the basis thereof an entry was made in CR No. 138 of 1989 and a case u/s. 302 and 307 read with Sections 147, 148 and 149 IPC and S. 37 of the Bombay Police Act was registered. The accused were arrested on 15th July, 1989 and were taken on remand for 9 days which period was extended upto 29th July, 1989 on which data the Investigating Officer invoked S. 3 of the Act. On 3rd August, 1989 the accused moved an application in the Designated Court, Jalgaon, for bail, inter alia, contending that the provisions of the Act had been wrongly and maliciously invoked. The said application was heard and decided by the Designated Court on 2nd September, 1989 which took the view that S. 3 of the Act was wrongly applied. Against that order the State of Maharashtra has preferred Criminal Appeal No. 712/89. As the accused were directed to approach the regular court, they moved two bail applications before the Fourth Additional Sessions Judge, Ahmadnagar.
4. The said bail applications were, however, rejected on 25th September, 1989. Against the said rejection the accused approached the High Court. While those matters were pending in the High Court, the prosecution submitted a charge-sheet against the accused in the Designated Court at Jalgaon. Thereupon the High Court rejected the applications. The accused again approached the Designated Court for bail. The Designated Court once again came to the conclusion that, in the facts and circumstances of the case, S. 3 of the Act had no application and discharged the accused on that count u/s. 227 of the Code of Criminal Procedure, 1973 (hereinafter called 'the Code'). By the said impugned order of 27th October, 1989 the case was ordered to be transferred to the Court of Sessions, Ahmadnagar, on the other charges and the accused were granted liberty to move that court for bail. Against the said order Criminal Appeal No. 703/89 has been preferred by Raju's father while the State of Maharashtra has filed Criminal Appeal No. 13/90. Thereupon, the accused approached the High Court for bail but the High Court rejected their application and directed early hearing of the case. Special leave petition No. 2459/ 89 is preferred by the original accused against the said order.
5.  The Act was enacted to make special provisions for the prevention of, and for coping with, terrorist and disruptive activities and for matters connected therewith or incidental thereto. S. 2(d) defines the expression 'disruptive activity' to have the meaning assigned to it in s. 4. S. 2(h) defines the expression 'terrorist act' to have the meaning assigned to it u/s. 3(1) of the Act. The relevant part of S. 3(1) provides that whoever, with intent (i) to overawe the Government as by law established or (ii) to strike terror in the people or any section of the people or (iii) to alienate any section of the people or (iv) to adversely affect the harmony amongst different sections of the people, does any act or thing by using any of the lethal weapons mentioned therein in such a manner as to cause death of/or injuries to any person or persons, commits a terrorist act. S. 3(2) lays down the penalty for the commission of such an act. S. 4(1) prescribes the penalty for indulging in any disruptive activity. S. 4(2) defines a disruptive activity to mean any action taken in whatever manner
(i) which questions, disrupts or is intended to disrupt, whether directly or indirectly, the sovereignty and territorial integrity of India, or (ii) which is intended to bring about or supports any claim, whether directly or indirectly, for the cession of any part of India or the secession of any part of India from the Union. S. 6 provides enhanced penalty for aiding any terrorist or disruptionist. Part III of the Act creates the machinery for trying terrorists and disruptionists charged with the commission of any offence under the Act. S. 9 empowers the Central Government as well as the State Governments to constitute by notification one or more Designated Courts for such area or areas, or for such case or class or group of cases as may be specified in the notification. S. 9(6) provides that a person shall not be qualified for appointment as a Judge or an Additional Judge of a Designated Court unless he is immediately before such appointment a Sessions Judge or an Additional Sessions Judge in any State. S. 11 says that every offence punishable under the provisions of the Act or the rules made there under shall be tried by a Designated Court constituted under S. 9(1) of the Act. S. 12(1) is relevant for our purpose and reads as under:
"When trying any offence, a Designated Court may also try any other offence with which the accused may, under the Code, be charged at the same trial if the offence is connected with such other offence."
6. S. 14 sets out the procedure and powers of Designated Courts. Sub-s. 3 of the S. 14 is relevant for our purpose. It reads as under:
"Subject to other provisions of this Act. Designated Court shall for the purpose of any offence have all the powers of a Court of Sessions and shall try such offences as if it were a Court of Sessions so far as may be in accordance with the procedure prescribed in the Code for the trial before a Court of Sessions."
7. S. 16 offers protection to witnesses. S. 17 gives procedence to trials by Designated Courts. S. 18 empowers the Designated Courts to transfer cases to regular Courts. This Section reads as under:
"Where, after taking cognizance of any offence, a Designated Court is of opinion that the offence is not triable by it, it shall, notwithstanding that it has no jurisdiction to try such offence, transfer the case for the trial of such offence to any court having jurisdiction under the Code and the court to which the case is transferred may proceed with the trial of the offence as if it had taken cognizance of the offence."
8. S. 19 provides for an appeal to the Supreme Court both on facts and on law from any judgment, sentence or order, other than an interlocutory order, of a Designated Court. S. 20(1) makes an offence under the Act or the rules, a cognizable one. Sub-s. (8) of s. 20 lays down that notwithstanding anything contained in the Code, no person accused of an offence punishable under the Act or any rule made thereunder shall, if in custody, be released on bail or on his own bond unless the public prosecutor has been given an opportunity to oppose his release and where he opposes his release, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. S. 21 mandates the Designated Court to presume, unless the contrary is proved, that the accused has committed an offence under S. 3(1) if one of the four things set out in cls. (a) to (d), is proved. S. 22 permits identification of the offender on the basis of his photograph. S. 28 empowers the Central Government to make rules on any of the matters set out in cls. (a) to (f) of sub-s. (2) thereof. Such rules have to be laid before both the Houses of Parliament. This in brief is the scheme of the Act.
9. U/s. 14(3) of the Act a Designated Court is conferred with the powers of a Court of Sessions and is required to try any offence under the Act 'as if it were' a Court of Sessions. The procedure which it must follow at the trial is the one prescribed in the Code fox the trial of cases before a Court of Sessions. This is of course subject to the other provisions of the Act which means that if there is any provision in the Act which is not consistent with the procedure stipulated in the Code for such trials, it is the procedure in the Act that shall prevail. The procedure for trial before a Court of Sessions is set Chapter XVIII of the Code. S. 225 places the public prosecutor in charge of the conduct of the prosecution. S. 226 requires him to open the prosecution case by describing the charge against the accused and stating by what evidence he proposes to bring home the guilt against the accused. Once that is done the Judge has to consider whether or not to frame a charge. S. 227 of the Code reads as under:
"If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the sub-. missions 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."
10.  Under this section a duty is cast on the judge to apply his mind to the material on record and if on examination of the record he does not find sufficient ground for proceeding against the accused, he must discharge him. On the other hand if after such consideration and hearing he is satisfied that a prima facie case is made out against the accused, he must proceed to frame a charge as required by S. 228 of the Code. Once the charge is framed the trial must ordinarily end in the conviction or acquittal of the accused. This is in brief the scheme of Ss. 225 to 235 of the Code.
11.  Section 227, introduced for the first time in the New Code, confers a special power on the Judge to discharge an accused at the threshold if 'upon consideration' of the record and documents he considers 'that there is not sufficient ground' for proceeding against the accused. In other words his consideration of the record and document at that stage is for the limited purpose of ascertaining whether or not there exists sufficient grounds for proceeding with the trial against the accused. If he comes to the conclusion that there is sufficient ground to proceed, he will frame a charge under section 228, if not he will discharge the accused. It must be remembered that this section was introduced in the Code to avoid waste of public time over cases which did not disclose a prima facie case and to save the accused from avoidable harassment and expenditure.
12.  The next question is what is the scope and ambit of the 'consideration' by the trial court at that stage. Can he marshal the evidence found on the record of the case and in the documents placed before him as he would do on the conclusion of the evidence adduced by the prosecution after the charge is framed? It is obvious that since he is at the stage of deciding whether or not there exists sufficient grounds for framing the charge, his enquiry must necessarily be limited to deciding if the facts emerging from the record and documents constitute the offence with which the accused is charged. At that stage he may sift the evidence for that limited purpose but he is not required to marshal the evidence with a view to separating the grain from the chaff. All that he is called upon to consider is whether there is sufficient ground to frame the charge and for this limited purpose he must weigh the material on record as well as the documents relied on by the prosecution.
13. In the State of Bihar v. Ramesh Singh, [1978] 1 SCR 257 1977 Indlaw SC 50 this Court observed that at the initial stage of the framing of a charge if there is a strong suspicion-evidence 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. If the evidence which the prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged by cross-examination 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. In Union of India v. Prafulla Kumar Samal & Anr., [1979] 2 SCR 229 1978 Indlaw SC 252, this Court after considering the scope of s. 227 observed that the words 'no sufficient ground for proceeding against the accused' clearly show that the Judge is not merely a post-office to frame charge at the behest of the prosecution but he has to exercise his judicial mind to the facts of the case in order to determine that a case for trial has been made out by the prosecution. In assessing this fact it is not necessary for the court to enter into the pros and cons of the matter or into weighing and balancing of evidence and probabilities but he may evaluate the material to find out if the facts emerging therefrom taken at their face-value establish the ingredients constituting the said offence. After considering the case law on the subject, this Court deduced as under:
"(1) That the Judge while considering the question of framing the charges under s. 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 adduced 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 s. 227 of the Code of Judge which under the present Code is a senior and experienced Judge cannot act merely as a Post office or a mouth-piece 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."
14.  Again in Supdt. & Remembrancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja & Ors., [1979] 4 SCC 274 1979 Indlaw SC 548 this Court observed in paragraph 18 of the Judgment as under:
"The standard of test, proof and judgment which is to be applied finally before finding, the accused guilty or otherwise, is not exactly to be applied at the stage of S. 227 or 228 of the Code of Criminal Procedure, 1973. At this stage, even a very strong suspicion rounded upon materials before the Magistrate which leads him to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged, may justify the framing of charge against the accused in respect of the commission of that offence".
15.  From the above discussion it seems well-settled that at the Sections 227-228 stage the Court is required to evaluate the material and documents on record with a view to finding out if the facts emerging there from taken at their face-value disclose the existence of all the ingredients constituting the alleged offence. The Court may 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.
the Act is a penal statute. Its provisions are drastic in that they provide minimum punishments and in certain cases enhanced punishments also; make confessional statements made to a police officer not below the rank of a Superintendent of Police admissible in evidence and mandates raising of a rebuttable presumption on proof of facts stated in cls. (a) to (d) of sub-s. (1) of S. 21. Provision is also made in regard to the identification of an accused who is not traced through photographs. These are some of the special provisions introduced in the Act with a view to controlling the menace of terrorism. These provisions are a departure from the ordinary law since the said law was found-to be inadequate and not sufficiently effective to deal with the special class of offenders indulging in terrorist and disruptive activities.
16. There can, therefore, be no doubt that the Legislature considered such crimes to be of an aggravated nature which could not be checked or controlled under the ordinary law and enacted deterrent provisions to combat the same. The legislature, therefore, made special provisions which can in certain respects b.e said to be harsh, created a special forum for the speedy disposal of such cases, provided for raising a presumption of guilt, placed extra restrictions in regard to the release of the offender on bail, and made suitable changes in the procedure with a view to achieving its objects. It is wellsettled that statutes which impose a term of imprisonment for what is a criminal offence under the law must be strictly construed. In Usmanbhai Dawoodbhai Memon & Ors. v. State of Gujarat, [1988] 2 SCC 271 1988 Indlaw SC 405 this Court in paragraph 15 of the judgment observed as under:
"the Act is an extreme measure to be resorted to when the police cannot tackle the situation under the ordinary penal law. The intendment is to provide special machinery to combat the growing menace of terrorism in different parts of the country. Since, however, the Act is a drastic measure, it should not ordinarily be resorted to unless the government's law enforcing machinery fails."
17.  To put it differently the ratio of the decision is that the provisions of the Act need not be resorted to if the nature of the Activities of the accused can be checked and controlled under the ordinary law of the land. It is only in those cases where the law enforcing machinery finds the ordinary law to be inadequate or not sufficiently effective for tackling the menace of terrorist and disruptive activities that resort should be had to the drastic provisions of the Act. While invoking a criminal statute, such as the Act, the prosecution is duty bound to show from the record of the case and the documents collected in the course of investigation that facts emerging there from prima facie constitute an offence within the letter of the law. When a statute provides special or enhanced punishments as compared to the punishments prescribed for similar offences under the ordinary penal laws of the country, a higher responsibility and duty is cast on the Judge to make sure there exists prima facie evidence for supporting the charge levelled by the prosecution. Therefore, when a law visits a person with serious penal consequences extra care must be taken to ensure that those whom the legislature did not intend to be covered by the express language of the statute are not roped in by stretching the language of the law. But that does not mean that the judicial officer called upon to decide whether or not a case for framing a charge under the Act is made out should adopt a negative attitude. He should frame a charge if the prosecution shows that the material placed on record and the documents relied on give rise to a strong suspicion of the accused having committed the crime alleged against him.
18.  We may now proceed to apply the law stated above to the facts of the present case. The prosecution case against the five accused persons is that they formed an unlawful assembly, killed Raju and injured keshav 'with intent to strike terror in the people or any section of the people' i.e. the residents of the locality, by the use of lethal weapons such as knives and iron-rods and thereby committed offences punishable under S. 3(1) of the Act read with the offences under  the Penal Code and the Bombay Police Act. When the complaint was lodged by the injured Keshav on 12th July, 1989 no offence u/s. 3(1) of the Act was registered. The offence u/s. 3(1) of the Act was introduced for the first time on 29th July, 1989. That means that between 12th July, 1989 and 29th July, 1989 the Investigating Officer collected evidence which enabled him to register an offence u/s. 3(1) of the Act. When the first bail application was disposed of on 2nd September, 1989, the Designated Court came to the conclusion that prima facie s. 3(1) of the Act had no application. In taking that view the Designated Court examined the statements of witnesses on which reliance was placed to support the prosecution case that s. 3(1) of the Act was attracted. It may be stated that accused Santosh Rathod runs a cycle repair shop. On the day previous to the occurrence the deceased Raju had gone to the cycle shop as his tube was punctured. At that time accused Jitendra and some others were present at the cycle shop and in their presence accused Jitendra is alleged to have stated as under:
"Presently Raju and Keshav are having dominance in the town. We would become dadas of the town upon taking lives out of them. Then there would not be any rival to us in this town. Upon commission of murder of Raju and Keshav on account of tenor the people would be scared."
19.  This is unfolded in the statements of Raju Narain, Sukharam Shinde and Bhau Saheb. Thus according to the prosecution the genesis of the crime was to gain supremacy in the underworld by eliminating the members of the rival gang. Ram Lokhande speaks about the incident in question and states that he had heard the assailants stating that on the elimination of Raju and Keshav they will become the Dadas and no one will dare to raise his voice against them. Bhika spoke about the previous incident on the same day at about 11.30 a.m. which shows that there was rivalry between the two gangs. Mr. Masodkar, the learned counsel for the State Government, as well as the appellant of criminal Appeal No. 703/89, therefore, contended that the Acts of violence were perpetrated with intent to strike terror in the people at large and in particular the residents of the locality in which the crime was committed. Our attention was also drawn to certain statements of witnesses to the effect that some of the accused persons were related to the members of the Shiv Sena party. The Designated Court came to the conclusion that the material placed before it and the statements recorded by the Investigating Officer did not disclose the commission of an offence under S. 3(1) of the Act. According to the Designated Court the intention of the accused persons was not to strike terror in the people or a section of the people but only to eliminate Raju and Keshav with a view to gaining supremacy in the underworld. The learned Judge presiding-over the Designated Court then proceeds to add as under:
"True it is that few people might have been terror-striken and terror might have been the fall out of naked act, but to strike the terror amongst people was not the object of this naked act. If at all people are getting terror-striken, it is those few people who live by the crime and not the people law abiding majority of citizens. Going by these statements there is nothing more to this crime than a strife between two warring factions staking claim to the supremacy of underworld."
20.  The learned Judge also came to the conclusion that there was nothing on record to show that the Government's law enforcing machinery had failed and it had become necessary to resort to the drastic provisions of the Act with a view to combating the menace of terrorism.
21.  We have carefully considered the statements of the witnesses on which the prosecution relies in support of its contention that the accused had committed an offence u/s. 3(1) of the Act. We think that the Designated Court was right in coming to the conclusion that the intention of the accused persons was to eliminate Raju and Keshav for gaining supremacy in the underworld. A mere statement to the effect that the show of such violence would create terror or fear in the minds of the people and none would dare to oppose them cannot constitute an offence u/s. 3(1) of the Act. That may indeed be the fail out of the violent act but that cannot be said to be the intention of the perpetrators of the crime. It is clear from the statement extracted earlier that the intention of the accused persons was to eliminate the rivals and gain supremacy in the underworld so that they may be known as the bullies of the locality and would be dreaded as such. But it cannot be said that their intention was to strike terror in the people or a section of the people and thereby commit a terrorist act.
22. It is clear that there was rivalry between the party of the accused on the one hand and Raju and Keshav on the other. The former desired to gain supremacy which necessitated the elimination of the latter. With that in view they launched an attack on Raju and Keshav, killed the former and injured the latter. Their intention was clearly to eliminate them and not to strike terror in the people or a section of the people. It would have been a different matter if to strike terror some innocent persons were killed. In that case the intention would be to strike terror and the killings would be to achieve that objective. In the instant case the intention was to liquidate Raju and Keshav and thereby achieve the objective of gaining supremacy in the underworld. The consequence of such violence is bound to cause panic and fear but the intention of committing the crime cannot be said to be strike terror in the people or any section of the people. We are, therefore, of the view that the Designated Court was fully justified in taking the view that the material placed on record and the documents relied on did not prima facie disclose the commission of the offence punishable u/s. 3(1) of the Act.
23.  It was next contended by the learned counsel for the State of Maharashtra that u/s. 12(1), when trying the offence under the Act, the Designated Court was entitled to try any other offence with which the accused were charged at the same trial since the offences punishable under the Penal Code and the Bombay Police Act were committed in the course of the same incident. S. 12(.1) no doubt empowers the Designated Court to try and offence punishable under any other statute along with the offence punishable under the Act if the former is connected with the latter. That, however, does not mean that even when the Designated Court comes to the conclusion that there exists no sufficient ground for framing a charge against the accused u/s. 3(1) of the Act it must proceed to try the accused for the commission of offences under other statutes.
24. That would tantamount to usurping jurisdiction. Section 18, therefore, in terms provides that where after taking cognizance of any offence the Designated Court is of the opinion that the offence is not triable by it, it shall, notwithstanding that it has no jurisdiction to try such offence, transfer the case for the trial of such offence to any court having jurisdiction under the Code. Therefore, when the Designated Court came to the conclusion that there was no prima facie evidence to frame a charge u/s. 3(1) of the Act, it was justified in transferring the case to the Court of Sessions, Ahmadnagar, which alone had jurisdiction under the Code. Once the Designated Court came to the conclusion that the evidence was not sufficient to frame a charge u/s. 3(1) of the Act, the Designated Court had no alternative but to resort to S. 18 and transfer the case to the competent court under the Code. We, therefore, do not see any merit in the contention of the learned counsel for the State of Maharashtra that even after the Designated Court came to the conclusion that no ground was made out u/s. 3(1) of the Act, it was duty bound by virtue of s. 12(1) of the Act to proceed with the trial for the other offences under the Penal Code and the Bombay Police Act. We think the course adopted by the Designated Court in transferring the case to the Sessions Court in clearly in keeping with s. 18 of the Act.
25.  Before we part we may state that Mr. Lalit the learned counsel for the accused tried to urge before us that the provisions of the Act were intended to deal with political terrorism intended to undermine the security of the State and not to ordinary law and order problems. We do not consider it necessary to go into this larger question because, in our opinion, the Designated Court was fight in coming to the conclusion that this was a case of inter-gang rivalry not attracting S. 3(1) of the Act.
26.  In the above view that we take all the three appeals fail and are dismissed. Mr. Lalit the learned counsel for the accused stated that since the High Court has directed expeditious disposal of the case he would not press the special leave petition directed against the High Court's order refusing bail. In view of the said statement, the Special leave petition No. 2459/89 will stand disposed of as not pressed. We may, however, state that the Sessions Court to which the case stands transferred should endeavour to complete the trial as early as possible, preferably within four months from the date of receipt of this Court's order.
Appeals dismissed.