In the case of Century Spinning and Manufacturing Co. Ltd. Ram Prasad Poddar and others vs. State of Mah., 1972 Cri.L.J. 545. the main issue was the exact scope of section 251 (a) of the Criminal Procedure Code. 1898. The Supreme Court while allowing an appeal against the order of Bombay High Court which had set aside an order of discharge made by the Chief Presidential Magistrate under section 120B, Indian Penal Code read with section 7 of the Essential Commodities Act, observed that its sub-section (2) has to be read along with sub-section (3). Reading the two sub-sections together it clearly means that if there is no ground for presuming that the accused has committed an offence, the charges must be considered to be groundless, which is the same thing as saying that there is no ground for framing the charges. This necessarily depends on the facts and circumstances of each case and the Magistrate is entitled and indeed has a duty to consider the entire material referred to in sub-section (2). The Supreme Court has further held that at the stage of framing the charges the Court has to apply its judicial mind in order to consider as to whether or not there is a ground for presuming the commission of offence by the accused.
Equivalent Citation: 1993MhLJ1664
IN THE HIGH COURT OF BOMBAY (PANAJI GOA BENCH)
Cri. Misc. Applns. Nos. 17 and 36 of 1993
Decided On: 02.07.1993
Appellants: Rudolf Fernandes
Respondent: State of Goa
Respondent: State of Goa
Dr. E.D.S. Dasilva, J.
1. By this common judgment I propose to dispose of both these Criminal Miscellaneous Applications filed by the petitioners under Section 482 of the Criminal Procedure Code whereby they pray for quashing the proceedings in Sessions Case No. 57/1992 and the setting aside of the Order dated 18-1-1993 passed by the learned Additional Sessions Judge, Panaji, as for as the petitioners are concerned.
2. The prosecution case is that the petitioner in Criminal Miscellaneous Application No. 17/1993 was arrested by Panaji Police Station on 21-1-1992 in C.R. No. 93/91 while seven others including the petitioner in Criminal Miscellaneous Application No. 36/1993 were arrested in the same C.R. on different dates. After the investigation was over the Panaji Police Station filed a charge-sheet against them and the case was committed to the Court of Session wherein it is pending before the Additional Sessions Judge vide Sessions Case No. 57/92.
3. The petitioner in Criminal Miscellaneous Application No. 17/1993 is the President of a society known as "Goa Protectors" and which is based at Santa Cruz, Goa. Sometime on 17-3-1991 a news item was published by one Anthony Fernandes in the newspaper "O Herald" from Panaji mentioning that the Goa Protectors were to start their own "Matka racket" in Goa. After the publication of this news two members of the Goa Protectors went to his residence and denied the truth of the news item having requested the said Anthony Fernades who is the deputy news editor of the said newspaper to issue a clarification which he did in the issue of 18-3-1991. However, even after this clarification his office received phone calls from anonymous persons threatening him with dire consequences.
4. On 22-3-1991 the said Anthony was sitting at Horse Shoe Bar at about 20.15 hours along with one Norman Dantas, Assistant Editor of O Herald and one Raposo. At that time one Joaquim Nunes came there talked to the owner of the bar and wished Anthony and went out. Soon thereafter Anthony was suddenly assaulted by some one on the head with a hard weapon due to which he lost his consciousness. Both Anthony and Dantas suspected that this was done at the instance of Goa Protectors.
5. The petitioner in Criminal Miscellaneous Application No. 17/1993 has stated in his application that after his arrest he had filed an application for bail before this Court which was granted to him by Order dated 29-1 -1992. However, based on this very allegation the petitioner was detained-under the National Security Act by Order dated 6-4-1992. A Criminal Writ Petition was filed before the Hon'ble Supreme Court and by judgment dated 20-1-1992 the Supreme Court set aside his detention. Thereupon when the charge-sheet was filed an oral application was made before the Sessions Court praying that no charge should be framed against him for total lack of evidence which was ultimately rejected by the impugned Order dated 18-1-1993.
6. The grievance of the petitioner is that the investigation commenced on the basis of mere suspicion expressed by Anthony and Dantas against the Goa Protectors and the suspicion so expressed was not against the petitioner in person but against the Organization. The Police have carried out a thorough investigation and have recorded statements of many witnesses before the filing of the chargesheet. Even after this thorough investigation the police have not come up with any evidence against the petitioner indicating his complicity in the said attack. Thus as far as the petitioner is concerned there is no evidence against him, not even a suspicion. When the bail application of the petitioner was being heard in the High Court the learned counsel for the State was asked a specific question about there being any evidence against the petitioner and the answer was in the negative. This negative answer was even reflected in the Order granting bail.
7. In Criminal Miscellaneous Application No. 36/1993 it was stated by the petitioner that as per the charge-sheet forwarded by the police to the Magistrate the allegations are that in furtherance of the criminal conspiracy hatched by the Goa Protectors four out of the eight accused, namely, Joaquim Nunes, Sandip Vernekar, Suresh Patil and Nuno Kukalekar along with one Rajesh alias Raju formed an unlawful assembly armed with deadly weapons namely rods and swords and in pursuance of criminal conspiracy to assault and murder Anthony Fernandes causing him bleeding injuries. The prosecution as the report discloses does not attribute any role in the actual assault to the petitioner who is sought to be roped in with the aid of section 120-B of Indian Penal Code. The petitioner has further stated that he has been falsely and baselessly implicated in the case. He is not even remotely connected with the assault or in any alleged conspiracy pursuant to which the alleged assault was made. None of the documents sent by the police along with the charge-sheet individually or cumulatively makes out even a semblance of a case against the petitioner in respect of any offence whatsoever. Thus the prosecution against him is frivolous and baseless and constitutes an abuse of the process of law. Under such circumstances, the order of the learned Additional Sessions Judge directing that charge be framed against him in respect of the offences stated therein thus making him to face a trial on these offences along with other accused is unjust, arbitrary and illegal. The entire judgment and order disclose total non-application of mind on the part of the learned Additional Sessions Judge.
8. Both the petitioners complained that the learned Additional Sessions Judge while referring in the impugned Order to a strong suspicion against them and the others for framing a charge has failed to mention any facts disclosed from the papers sent by the police on the basis of which any such suspicion, leave alone a strong suspicion, could be said to arise as far as the petitioners are concerned.
9. Shri Shirodkar. learned Senior Counsel appearing for the petitioner in Criminal Miscellaneous Application No. 17/1993. has vehemently contended that on going through the impugned Order on the face of it was clear that there was an abuse of the process of law in framing the charge against him and hence the Court should interfere. The learned counsel has drawn my attention to the Order of the learned Single Judge (Kamat, J.) dated 29th January, 1992, namely, the observation made by him that after having gone through the investigation papers to ascertain as to what sort of an investigation had been carried out by the police subsequent to the petitioners having been taken in custody from 22nd January, 1992, he had found that until that date, prima facie, nothing could surface in the matter of suspicion that the petitioner was involved in the offence.
The learned counsel has pointed out that within 14 days from the date of the incident on 22-3-1991 the petitioner was detained on 6-4-1991 under the National Security Act and the Supreme Court while setting aside the impugned Order has made these comments in the present case as to the manner in which the concerned authorities had handled the petitioner's case. In spite of that the petitioner's application made to the Sessions Court not to frame a charge against him was rejected by the learned Additional Sessions Judge vide order under challenge.
The learned counsel has taken me to the evidence relied by the Investigating Agency in his petition, namely, the evidence of Norman Dantas. Vasco Silveria. Euclides Heredia, Anthony Fernandes and others which only discloses a mere reference to a suspicion expressed by only two of them being Norman and Anthony that the incident might have been caused by the members of Goa Protectors. It was urged by the learned counsel that this type of suspicion of a person right from the date of incident in March 1991 till the filing of the charge-sheet in September, 1992, i.e. after a period of 17 months without any other evidence having been unearthed by the police to substantiate this suspicion could not be held as sufficient to frame a charge against the petitioner.
The learned counsel further urged that suspicion in the eye of law is not the suspicion of a victim or any other person who might have testified on the matter but only the suspicion arising from a judicial mind and reasonably based on the evidence on record. Therefore the suspicion of an individual person expressed against the petitioner or the Organization of which he is the President would be irrelevant in the circumstances of the case. It was submitted by the learned counsel that the only ground sought to be made against the petitioner to implicate him in the case was the fact that he was the President of the Goa Protectors since admittedly the petitioner was not physically present at the time of the incident and therefore he was attempted to be involved in the same incident by fabricating a case of conspiracy including him and other co-accused in the offence under which they were charged. The learned counsel denied that there was any evidence available on record regarding this conspiracy and submitted that out of the seven accused which were charge-sheeted only the petitioner and the accused Nos. 2 and 3 were belonging to the Organization. It was further argued that the only possible connection between the petitioner and the rest of the accused or the incident in which they were falsely implicated had been provided by the co-accused Shekar and Sanjeev. Thus the prosecution has totally failed to establish any link to make out a case of conspiracy. It was submitted that this was a case in which there was no evidence at all regarding any suspicion, leave alone strong suspicion, and therefore this Court was bound to interfere at this stage even if the petitioner had failed to convince the learned Additional Sessions Judge to discharge him.
10. In his turn Shri Lotlikar. learned counsel for the petitioner in Criminal Miscellaneous Application No. 36/1993. has submitted that the broad parameters which were to be considered while disposing of an application under section 482 of Criminal Procedure Code were restricted to the records of the case and the documents made available by the prosecution and that they have to assume that all the prosecution witnesses would depose in the Court exactly as they had deposed before the police so as to enable this Court to exercise jurisdiction under the aforesaid legal provision. The learned counsel has invited my attention to the impugned judgment of the learned Additional Sessions Judge from which it was clear that the only thing which the prosecution has found against the petitioner was the fact that he had been seen by one witness Euclides Heredia passing on that day at about 9-30 a.m., that is to say, more than an hour prior to the time of the incident by the side of the O Herald's office.
The learned counsel has further contended that although the learned Additional Sessions Judge has made no incriminatory references to him still the remaining evidence available, namely, the testimony of witness Jose Mascarenhas to the effect that the petitioner has stayed at the Hotel Keni on the night of the incident could not be relevant since no identification parade was held by the prosecution to prove that the said Diogo Pereira was the same person seen by Euclides Heredia passing by the side of O Herald's office on the day of the incident. The learned counsel has argued that the very fact that the petitioner spent that night in that hotel by disclosing his identity would show that he had made no efforts to conceal his presence in the town on that night which appears to be not consistent with the conduct of a criminal if he really had been involved in the assault on the same night. It was therefore urged by the learned counsel that this type of evidence could never go against the petitioner to establish a case of conspiracy sought to be made against him.
It was further argued by the learned counsel that it was not the prosecution case that the petitioner had physically participated in the assault but instead the prosecution has attempted : make him a part of conspiracy to assault Anthony Femandes.
11. In the course of their oral submissions both the learned counsel have cited a number of judgments of the Supreme Court and several High Courts in order to impress upon that in the facts and circumstances of the case there was no question of the learned Additional Sessions Judge framing any charge against the petitioners consequent upon the failure of the prosecution to make available to the Court sufficient evidence to justify the raising of a strong suspicion on which the learned Judge appears to have based his finding that a charge would be warranted against the said petitioners.
12. However, since some of these rulings, namely, in the case of Sarwan Singh Rattan Singh vs. State of Punjab. MANU/SC/0038/1957 : 1957 Cri.L.J. 1014, and in the case of State (Delhi Administration) vs. Gutzarilal Tandon, MANU/SC/0250/1979 : 1979 Cri.L.J. 1057. are dealing with a situation wherein an accused is to be convicted which no doubt requires a totally different approach while assessing the evidence for that purpose, I will simply leave them apart as not attracted in the special context of our case and instead advert to the remaining once which are directly relevant to the point.
13. In the case of Century Spinning and Manufacturing Co. Ltd. Ram Prasad Poddar and others vs. State of Mah., 1972 Cri.L.J. 545. the main issue was the exact scope of section 251 (a) of the Criminal Procedure Code. 1898. The Supreme Court while allowing an appeal against the order of Bombay High Court which had set aside an order of discharge made by the Chief Presidential Magistrate under section 120B, Indian Penal Code read with section 7 of the Essential Commodities Act, observed that its sub-section (2) has to be read along with sub-section (3). Reading the two sub-sections together it clearly means that if there is no ground for presuming that the accused has committed an offence, the charges must be considered to be groundless, which is the same thing as saying that there is no ground for framing the charges. This necessarily depends on the facts and circumstances of each case and the Magistrate is entitled and indeed has a duty to consider the entire material referred to in sub-section (2). The Supreme Court has further held that at the stage of framing the charges the Court has to apply its judicial mind in order to consider as to whether or not there is a ground for presuming the commission of offence by the accused.
14. In this respect learned counsel Shri Shirodkar is perfectly right when he submits that the suspicion expressed either by the victim or/and by any other witnesses of the prosecution would not by itself be sufficient to justify a finding that the petitioners were likely to be involved in the incident. What would really matter is the judicial suspicion created in the mind of the Judge after a broad scrutiny of the evidence made available by the prosecution.
15. In the case of State of Karnataka vs. L. Muniswamy and others, 1977 Cri.L.J. 1989. which directly deals with the proper construction of sections 227 and 482 of the Criminal Code. 1974 at the initial stage of a sessions trial and when the question of framing the charge arises, the Supreme Court has held that reading sections 227 and 228 together in just proportion as they ought to be it would be clear that at the beginning and at the initial stage of the trial the true veracity and effect of the evidence which the prosecutor proposes to adduce are not to be meticulously judged nor is any weight to be attached to the probable defence of the accused. It is not obligatory for the Judge at this stage of the trial to consider in any details and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused. The standard of test and judgment which is to be finally applied before recording a finding in respect of the guilt or otherwise of the accused is not exactly to be applied while dealing with Sections 227 or 228 of the Code. At this stage the Court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. The Court further observed that if the matter remains in the region of suspicion it cannot take the place of proof of his guilt at the conclusion of the trial. However at the initial stage if there is a strong suspicion which leads the Court to think that there is some substance 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.
16. In the case of State of Karnataka vs. L. Muniswamy and others, MANU/SC/0143/1977 : 1977 Cri.L.J. 1125, which again refers to sections 227 and 482 of the Criminal Procedure Code. 1974 the Supreme Court in clear terms ruled that from section 227 of the new Code it flows that the Sessions Court has the power to discharge an accused if after perusing the record and hearing the parties it comes to the conclusion for reasons to be recorded that there is no sufficient ground for proceeding against the accused. For the purpose of determining whether there is sufficient ground for proceeding against an accused the Court possesses comparatively wider discretion in the exercise of which it can determine the question whether the material on the record, if un-rebutted, is such on the basis of which a conviction can be said reasonably to be possible. It may be noted that these observations of the Supreme Court refer only to the wide discretion vested on the Courts to determine as to whether the factual material on record can constitute a reasonable ground to base the conviction of the accused.
17. In the case of Union of India vs. Prafulla Kumar Samal and another, MANU/SC/0414/1978 : 1979 Cri.L.J. 154, which also deals with section 227 of the Criminal Procedure Code of 1974 on the determination of the question regarding discharge as well as the test to be applied in this connection, the Supreme Court held that the Judge at the stage 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. It is only where the materials placed disclose grave suspicion against an accused which has not been properly explained that the Courts will be fully justified in framing a charge and proceeding with the trial. The test to determine as to the existence of 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. It was further observed that the Courts have to consider only the broad probabilities of the case, the total effect of the evidence and the documents produced before it. It does not mean that it should be making a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial. It was also laid down that what was expected is that the Judge should exercise his judicial mind to the facts of the case in order to ascertain as to whether a case for trial has been made out by the prosecution.
18. In the case of Dr. Dattatraya Narayan Somant and others vs. State of Maharashtra, MANU/MH/0013/1981 : 1982 Cri.L.J. 1025, a Single Judge of this Court upheld the principles laid down by the Supreme Court on the matter of sufficiency of grounds for presuming the commission of an offence at the stage of the framing of charge and ruled that it is wrong to say that the Court cannot apply its judicial mind to the consideration as to whether or not there is any ground for presuming the commission of the offence. If there is a strong suspicion against the accused and the matter remains in the regions of suspicion it cannot take place of guilt at the conclusion of trial. But the inference which must be drawn is that if there is a strong suspicion existing at the initial stage which leads the Court to think that there is a ground for presuming that the accused has committed an offence then it is not open for the Court to say that there is no sufficient ground for proceeding against the accused.
19. Further in the case of Madhavrao Jiwaji Rao Scindia and another vs. Sambhajirao Chandrojirao Angre and others, MANU/SC/0261/1988 : 1988 Cri..L.J. 853. the Supreme Court once again dealing with the scope of section 482 of the Criminal Procedure Code has reiterated the legal position that when a prosecution at the initial stage is asked to be quashed the test to be applied is whether the uncontroverted allegations as made prima facie establish the offence (emphasis supplied). It is also for the Court to bear in mind any special features which appear in a particular case in order to consider as to whether it is expedient in the interest of justice to permit the prosecution to continue. This is so on the basis that the Court cannot be utilised for any oblique aims and therefore where in the opinion of the Court chances of an ultimate conviction are bleak and no useful purpose is likely to be served by allowing a criminal prosecution to continue, the Court may(emphasis supplied) while taking into consideration the special facets of a case also quash the proceedings even though it may be at a preliminary stage.
20. This judgment has been followed in a recent decision of another Single Bench of this Court in the case of Shaikh Ahmed Hussain and another vs. State of Mah. MANU/MH/0115/1990 : 1991 Mh.LJ. 77 : 1991(2) Bom.C.R. 392. It may be however, said that this ruling clearly stresses the point that a discharge of an accused at the initial stage may be justified only by taking into account special features and the consideration of expediency as well as the ultimate interest of justice. Therefore and in order to avoid the serving of an oblique motive the Court may be well advised to discharge an accused in view of the fact that sometimes the chances of his ultimate conviction are bleak and thus no useful purpose is likely to be achieved by allowing the criminal prosecution to continue.
21. From the above exposition of the relevant rulings relied by the learned counsel for the petitioners the legal position which emerges on the matter of the framing of a charge and/or of discharging an accused under sections 227 and 228 of the Criminal Procedure Code is that the test to determine as to whether the accused in a given case is to be charged or discharged rests on the fact that a prima facie case or a grave and a strong suspicion backed by a judicial mind and which has not been properly explained can be said to have been made on the basis of the evidence available on record.
22. For that purpose the Courts must have the power to go through the evidence in its totality and consider the overall effect as well as the large probabilities of the case without of course going into the details of that evidence as if they were to assess it at the time of the conclusion of the trial.
23. If the material made available by the investigation agencies broadly reveal the commission of a particular offence by an accused or even the likelihood of his having committed such offence the charge is then to be framed against him. For this purpose even a grave suspicion should be sufficient to make such a charge irrespective of the fact that the ultimate result of the trial may lead to the conviction or acquittal of the accused.
24. For the framing of the charge the ultimate result is not to be taken into consideration at all. The eye should not be in the final aftermath of the charge resulting into a conviction or acquittal but to see to it as to whether the accused should or should not be called to face a trial (MANU/SC/0139/1977 : AIR 1977 SC 2018.)
25. In order to hold that a prima facie case is to be deemed as disclosed against an accused the Court should be allowed to trace his involvement in (he offence either from his active participation or otherwise.
26. Being so and when there is no ground for presuming that the accused has committed an offence and the charge must be construed as groundless which is the same thing as saying that there is no ground to frame the charge only in that case an order of discharge should be made by the trial Courts. This necessarily depends on the facts and circumstances of the case and the Courts are certainly entitled and indeed have a duty to consider for that purpose the entire material on record in order to apply to it its judicial mind so as to reach at a reasonable conclusion on the point of the accused's requirement to face a trial.
27. The reference to the words "no grounds for presuming" in section 228 of the Criminal Procedure Code cannot be held as being the same as "no evidence to establish the existence of an offence" but instead to a total absence of any material to even suggest a prima facie case with regard to the commission of an offence by an accused.
28. On the other hand, it is to be borne in mind that each case depends upon its particular facts and circumstances and sometimes even a remote link between the activities of an accused and the facts of the case may justify a reasonable inference warranting a judicial finding that there is ground for presuming that an accused has committed the offence or at least to presume that the question of his being directly or indirectly involved in the commission of such offence is not to be ruled out.
29. It is all a matter of gradation or nuance and in this context it is only proper and reasonable to hold that a fair, broad and judicious discretion is to be allowed to the trial Courts in the task of ascertaining as to whether the evidence as available justifies the conclusion that there exists a prima facie case to frame a charge against an accused.
30. Thus the question of any interference on the part of this Court in the exercise of its powers under section 482 should arise only when the findings of the Courts below appear to be vitiated by errors of law and/or when the conclusions arrived at by them are so patently opposed to the wall established principles of judicial approach that they can be characterized as wholly unjustified and perverse, MANU/SC/0038/1957 : AIR 1957 SC 637. In other words we must be satisfied that the discretion exercised by the Courts appears to have been used with irregularity or perversity, that is to say, on the basis of no evidence at all or by exceeding its jurisdiction and/or in the improper exercise of the jurisdiction vested on them under sections 227 and 228 of the Criminal Procedure Code.
31. It follows therefore that for the purpose of discharging an accused there should be some ground to presume the accused not guilty or that the prosecution for the offences charged must be considered totally groundless, in short, there should be no ground for presuming the accused to be guilty of the criminal offence charged against him.
32. In the instant case it can be seen that the learned Additional Sessions Judge has relied on some material and circumstances which he bona fide believed to be relevant in order to unfold a case of conspiracy against the petitioners and some others in the actual commission of an offence of a murderous assault on Anthony Femandes by the remaining or some of the remaining co-accused. He has expressly referred in this regard to the fact that Anthony Fernandes who was the deputy news editor of the English daily 'O Herald' had published a news item under the caption "Protectors to start own Matka racket " in its 17-3-1991 issue which was apparently highly damaging to the reputation of the Goa Protectors Organization. The learned Judge has given a positive finding after reading the news item that the same would clearly reveal that the information brought to the public was grossly detrimental to the interests of the Goa Protectors which is a society duly registered under the Indian Societies Act, 1860. The learned Judge has also found on the basis of the evidence available in the case papers that the petitioner Rudolf Fernandes in Criminal Miscellaneous Application No. 17/93 is the President of the Goa Protectors while the accused Nos. 2 and 3 in the charge-sheet are its Vice-President and Secretary respectively. From this fact the learned Judge has arrived at the conclusion that a motive has been brought on record against the said Rudolf not only for his involvement in the offence of criminal conspiracy but also to do away with the author of the article at the hands of the Goa Protectors. In this regard, the learned Judge has relied on the admitted position that immediately after the publication of the news item both accused Nos. 2 and 3 approached Anthony Fernandes and demanded from him for a clarification to be immediately published in his newspaper which he has done on the 18-3-1991 issue under the caption "Protectors claim Bombay party behind matka". The learned Judge has also considered the evidence brought on record by Anthony Fernandes in his statement under section 162 Cr.P.C. to the effect that after the publication of the news item his office was flooded with phone calls threatening him with dire consequences tor his having published the said news item. The record also shows that prior to this assault the very Editor of the same newspaper 'O Herald', Mr. Rajan Narayan, was physically assaulted by some unknown person and the petitioner Diogo Pereira in the Criminal Miscellaneous Application No. 36/93 has been suspected to be the author of this assault. Further the facts of the case suggest that the assault was committed by the assailants armed with iron rods and swords and the victim was hit on the head and other vital parts of his body. Therefore the finding given by the learned Sessions Judge that the ultimate aim of this assault appears to be to commit murder of Anthony Fernandes cannot be faulted with this regard. The learned Sessions Judge is shown to have borne in mind that the petitioner Rudolf in Criminal Misc. Application No. 17/93 does not seem to have been physically present at the time of the actual assault but in spite of that he has taken the view that he being admittedly the President of the Goa Protectors there was always a strong likelihood and/or the possibility of his having been the prime conspirator in the commission of the offence. This conclusion of the learned Sessions Judge cannot be said to be at all unreasonable and/or unjustified in the facts and circumstances of the case.
33. It is true that on a demand made by the accused Nos. 2 and 3 a clarification was published by Anthony Fernandes in respect of the damaging news item brought by him in the O Herald issue dated 17-3-1991. However, it is difficult to believe that with this clarification the members of the Goa Protectors namely its President would have been totally pacified and therefore there could be no reason for him to bear any grudge or ill-will against Anthony Fernandes on account of the said publication. Obviously a simple clarification was not to be considered as an end of the matter because in spite of that the damaged reputation of the Organization of which the petitioner Rudolf in Criminal Misc. Application No. 17/93 is the President could not be held as having been cleared consequent upon the said clarification. There were certainly still reasons for anger and motive to take vengeance from him.
34. In his turn, Shri Bhobe, learned Public Prosecutor, although unsuccessfully attempted to foist a case of non-maintainability of both these petitions under section 482 of Criminal Procedure Code on the ground that no revision had been filed by the petitioners against the charge already framed against them by the learned Additional Sessions Judge, by relying on the ratio in the case of Amar Nath and others vs. State of Haryana and others. MANU/SC/0068/1977 : AIR 1977 SC 2185, which on facts and in law is not attracted in our case, has however submitted, in support of the findings of the learned Additional Sessions Judge that the available evidence as it stands should be deemed as being sufficient to establish a clear prima facie case of conspiracy against both the petitioners along with the co-accused in this case.
35. The submission of the learned counsel appears to be correct and deserves acceptance. Consequent upon the publication of the news item by Anthony Fernandes followed by the prompt and stern reaction on the part of some of the members of Goa Protectors in their demand for the issuance of an immediate clarification which otherwise the victim has done I am still satisfied that the serious allegations against the Organization' of which the petitioner Rudolf in Criminal Misc. Application No. 17/93 is the President cannot be held as having been totally wiped out,
36. So far the petitioner Diogo in Criminal Misc. Application No. 36/93 is concerned it was also urged by the learned Public Prosecutor that there is the evidence borne out from the statement given by the witness Euclides Heredica that he is suspected to be involved in another assault on a previous occasion against the editor of the same daily newspaper. Rajan Narayan. Besides this there is also some material on record to the effect that he was seen passing by the office of the said daily newspaper which seems that is fairly close to the Horse Shoe bar about one hour prior to the incident on a motor-cycle in spite of his being a resident of Pomburpa.
37. The learned Public Prosecutor has also referred to further evidence given by witness Jose Mascarenhas who has stated that the said petitioner had spent the night of the incident at Panaji in Hotel Keni wherein he is working as a receptionist along with the co-accused Sanjeev Naik who is admittedly the Secretary of Goa Protectors. Shri Bhobe has thus contended that even assuming that there is no evidence to prove that the petitioner Diogo is not an actual member of the Goa Protectors still the fact that he has spent the night of the incident along with its Secretary sharing the same room in a Hotel at Panaji after the assault strongly points out to his close links with the members of the Organization and his direct involvement either in the actual commission of the offence or at least in a conspiracy to carry on the physical assault on Anthony Fernandes.
38. There seems to be again considerable merit in these submissions of the learned counsel and I am therefore inclined to hold on the basis of these submissions that the particular features brought to light by the Investigating Agency even at this initial stage of the prosecution do not justify the petitioners' claim that no case regarding the purported existence of a criminal conspiracy to eliminate Anthony Fernandes in which they are alleged to be a party is to be deemed as having been made out against them and that therefore they are entitled to be forthwith exonerated from the charges framed and the proceedings quashed as far as they are concerned.
39. In this regard reliance placed by the learned Public Prosecutor in the case of Mohd. Akbar Dar and others vs. State of J. & K. and others, MANU/SC/0182/1981 : AIR 1981 SC 1548, appears to be very much to the point. In the aforesaid case which was dealing with the procedure followed by the trial Court and the High Court which heard the appeal against the order of the trial Court framing charges the fact that the High Court did not enter into meticulous considerations of evidence and materials at that stage and did not go into the pros and cons of the matter was not faulted by the Supreme Court. The main grievance of the appellant was that the High Court had erred in law in not fully considering the effects of the documents produced by the prosecution and the statements recorded under section 161. Criminal Procedure Code before finding that there were sufficient grounds for framing charges against them. A similar criticism was made by the appellant in respect of the Special Judge also. The Supreme Court after hearing the counsel for the appellant and going through the judgments of both the Courts ruled that the Trial and the High Court had generally given a brief survey of" the evidence sought to be adduced against the appellant. The circumstance that the High Court had not gone into the details or the pros and cons of the matter was justified because obviously that was not the stage when the Court could enter into meticulous consideration of the evidence and materials. The Supreme Court was satisfied that the High Court had clearly observed that after perusing statements of witnesses recorded under section 161. Criminal Procedure Code it was unable to find that the charges could be said to be groundless. Accordingly the Supreme Court dismissed the appeal on the ground that this was not a case which was calling for interference with the order of the Special Judge framing the charges,
40. In this view of the matter I hold that the order of the learned Additional Sessions Judge directing that the charge be made against the petitioners and other co-accused and the order of the charge itself actually framed by him do not suffer from any serious legal infirmity and instead appear to be quite fair and reasonable in the special circumstances of the case. I am therefore unable to see that the said order is thus likely to cause grave injustice to the petitioners so as to warrant any interference on the part of this Court under section 482 of the Criminal Procedure Code.
41. Both the petitions are therefore bound to be rejected and are hereby accordingly dismissed.