1999 (9) TMI 1015 - HC - Indian Laws

Summary

1. ISSUES PRESENTED and CONSIDERED

The core legal questions considered by the Court are:

- Whether the accused forest officials, including the Deputy Conservator of Forest (accused No. 4) and his subordinates, can be discharged from charges under Sections 227 and 228 of the Code of Criminal Procedure (CrPC) for alleged abetment of murder and other offences by illegal omission.

- Whether the prosecution has established a prima facie case that the accused intentionally aided the commission of the offence by illegal omission within the meaning of Sections 107 and 108 of the Indian Penal Code (IPC).

- Whether mere presence at the scene of the crime, without evidence of overt act or illegal omission constituting abetment, suffices to frame charges against public servants.

- The scope and interpretation of "duty" and "legal obligation" of public servants in the context of alleged failure to prevent a crime.

- The appropriateness of the Sessions Judge's order dismissing the discharge applications, including whether the Sessions Judge properly considered the police investigation papers and legal principles in framing charges.

- The extent of judicial scrutiny permissible at the stage of framing charges under Sections 227 and 228 CrPC.

- Whether the conduct of the accused forest officials, including alleged failure to use firearms or prevent the attack, amounts to criminal abetment or merely reflects moral or social duty.

2. ISSUE-WISE DETAILED ANALYSIS

Issue 1: Whether the accused forest officials can be discharged under Sections 227 and 228 CrPC for alleged abetment by illegal omission.

The relevant legal framework includes Sections 227 and 228 CrPC, which govern the framing of charges and discharge of accused before trial, and Sections 107 and 108 IPC, defining abetment and abettor respectively. Section 107 describes abetment as instigating, conspiring, or intentionally aiding by act or illegal omission. Section 108 defines an abettor as one who abets an offence with the same intention or knowledge.

The Court emphasized that at the stage of framing charges, the Judge must apply judicial mind to ascertain if there is sufficient ground for proceeding, but is not to weigh evidence or decide guilt. The test is whether a prima facie case exists, considering the police papers and documents, without conducting a detailed trial.

The prosecution case against the accused forest officials was that they intentionally aided the crime by illegal omission, i.e., failing to perform their duties to prevent the murder of an informant, Bavaji Jadeja, and his companions. The prosecution relied on circumstantial evidence, including the presence of the accused at the scene, alleged failure to use firearms, and running away from the spot.

The Court examined the police papers and statements, noting that no overt act of aiding the crime was attributed to the accused. The prosecution conceded that no direct act of aiding was alleged, only omission. The Court held that omission must be illegal and intentional to constitute abetment. Mere presence or failure to act, absent a legal obligation, cannot be equated with abetment.

The Court analyzed the duties of the accused under the Forest Manual and relevant statutes, finding no evidence that the accused violated any legal or obligatory duty. The accused were public servants present on duty, but the situation was chaotic and dangerous, with a large armed group attacking. The Court found no material to show that the accused had knowledge or control sufficient to prevent the crime or that they intentionally omitted to act.

The Court distinguished moral or social duties from legal obligations, underscoring that only the latter can ground criminal liability for omission. It cited authoritative precedents emphasizing that an illegal omission requires a duty enforceable by law, not merely a moral duty.

Issue 2: Interpretation of "duty" and legal obligation of public servants in the context of alleged failure to prevent the crime.

The Court explored the meaning of "duty" in the context of public servants, referencing the Forest Manual which details the responsibilities of Deputy Conservators, Foresters, and Guards. It found that while the accused had administrative and supervisory duties relating to forest protection and offences, there was no evidence that they were legally bound to prevent the violent assault or to use force against a large armed group.

The Court emphasized that the accused were not police officers and did not have the legal authority or means to arrest or confront the assailants armed with deadly weapons. The mere presence at the scene and failure to prevent the crime did not amount to illegal omission under IPC Sections 107 and 108.

The Court also noted that the accused had reported the incident to their superior officers promptly and that the deceased was already dead upon their arrival, negating the allegation of failure to shift him to hospital.

Issue 3: Appropriateness of the Sessions Judge's order dismissing discharge applications.

The Court found that the Sessions Judge erred by relying on assumptions and presumptions not supported by police papers. The Sessions Judge treated moral duty on par with legal duty and did not properly distinguish between them. The Sessions Judge also failed to consider the relevant provisions of the Forest Act and Manual, and did not individually assess the accused's roles and conduct.

The Court held that the Sessions Judge's order lacked proper appreciation of the investigation papers and legal principles, resulting in a miscarriage of justice. The Court emphasized that the Sessions Judge must not act as a mere post office for prosecution but exercise judicial mind to determine if a prima facie case exists.

Issue 4: Scope of judicial scrutiny at the stage of framing charges.

The Court reiterated settled legal principles that at the stage of Sections 227 and 228 CrPC, the Court must consider whether there is sufficient ground to proceed, not weigh evidence or decide guilt. The Court can sift through police papers to ascertain if there is grave suspicion or prima facie case, but cannot conduct a roving inquiry.

The Court relied on authoritative judgments emphasizing that mere suspicion or motive is insufficient to frame charges and that the prosecution must show a prima facie link between accused and offence. The Court held that in absence of positive evidence showing intentional illegal omission, charges cannot be framed.

Issue 5: Whether the conduct of accused forest officials, including failure to use firearms or prevent the attack, amounts to criminal abetment.

The Court noted that the prosecution alleged that one Assistant Conservator was armed with a revolver but failed to use it, and that accused No. 4, as senior officer, should have directed him to do so. However, the Court found no evidence that accused No. 4 knew about the firearm or had authority to order its use. The Court also found no evidence that accused No. 4 or others were armed.

The Court observed that the attack was swift and violent, with a large group of assailants armed with weapons, making it impractical for the accused to intervene. The Court held that failure to act under such circumstances does not amount to intentional illegal omission or abetment.

The Court rejected the prosecution's argument that accused should have used sticks or other means to defend, noting the impracticality and absence of evidence supporting such expectation.

Issue 6: Treatment of competing arguments and conclusions.

The Court carefully considered the submissions of both sides. The defense argued that the accused were public servants present on duty who did not commit any overt act or illegal omission. The prosecution argued that omission to act constituted abetment.

The Court found that the prosecution failed to establish a prima facie case of intentional illegal omission. The Court held that mere presence and failure to prevent a crime, absent a legal duty and overt act, cannot sustain charges of abetment. The Court emphasized the right to self-preservation of the accused and the dangerous circumstances prevailing.

The Court also addressed the procedural aspect, noting that statements of accused recorded by the first investigating officer treated them as witnesses, but the second investigating officer reclassified them as accused without proper basis.

The Court concluded that the Sessions Judge's order dismissing discharge applications was legally unsound and that the accused should be discharged.

3. SIGNIFICANT HOLDINGS

- The Court held that "mere presence at the spot of incident, though important, is not sufficient to connect the accused with the crime. The prosecution is bound to show the involvement of the person/s present at the spot."

- The Court stated: "An omission may be an illegal omission but the same simultaneously may not be intentional. If legal but not unintentional omissions should be viewed from different angle. Presumption of some knowledge has no role to play in inferring any intentional illegal omission."

- The Court reproduced Section 107 and 108 IPC to clarify the definition of abetment and abettor, emphasizing that "the omission must be illegal, and before there can be an illegal omission, there must be a duty cast by the law upon the person said to be guilty of the omission to do something or other."

- The Court relied on precedent: "The Judge while considering the question of framing the charges under Section 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."

- The Court emphasized that "strong suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge," but "if two views are equally possible and the Judge is satisfied that the evidence produced 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."

- The Court held that "the learned Sessions Judge has not given any cogent reason or reasons under which it can be held that the applicants were responsible to protect Bavaji Jadeja or to arrest all the 70 / 75 / 80 persons armed with the deadly weapons even at the cost of their own lives."

- The Court concluded that "the findings arrived at by the learned Sessions Judge concerned are without proper appreciation of papers of investigation, not supported by evidence on record and are based on assumption and presumptions," resulting in miscarriage of justice.

- The Court quashed and set aside the Sessions Judge's order dismissing the discharge applications and ordered discharge of accused No. 4 and other petitioners, holding that "the elements of abetment on account of 'illegal omission' is missing on the papers of police investigation."