The present Criminal Revision Application arises out of order dated 27th September, 2012 passed by learned Metropolitan Magistrate, Court No.25, Ahmedabad, under Section 239 of the Code of Criminal Procedure, whereby he has dismissed applicant-accused’s application for discharge. 2. Upon a complaint by one Zabinabanu Asifbhai Ansari, a FIR being Crime No.I-60 of 2011 with the Shahpur Police Station came to be registered. According to the complaint, the complainant was staying with her parents. Her father was doing business of ready-made garments. Navab Pathan, the present applicant, was partner in the father’s business. Said Navabkhan therefore used to come to complainant’s house, which led to development of a love affair between the complainant and Navabkhan. As the facts in the complaint go further, thereafter on 12th January, 2011 they both got married and complainant went to stay in the house of Navabkhan. It is further stated that after staying for three days in his house, she knew that Navabkhan was a married person and had two sons as well. Therefore, the complainant immediately left his house, came back to the parental house and before two months, both have taken divorce.
2.1 It is the say of the complainant that at that time said Navabkhan had threatened her by uttering that he would not leave her and would spoil her life. It is stated in the complaint that yesterday an unknown person, who according to the complainant had come to her house on earlier occasion also, came to get the readymade ladies cloths. It is further stated that at around 5.30 pm said unknown person came near her house and asked her for water to drink. The complainant gave a glass of water to him. At that time, the said unknown person abruptly threw some liquid on complainant’s face. Thereafter he immediately fled away. It is complainant’s case that acid like liquid was thrown on her face by the said unknown person in a bid to permanently disfigure her face. The complainant stated that she suspected that the said unknown person had committed such act at the instance of her ex- husband Navabkhan Pathan-the applicant herein.
2.2 The charge was framed on the basis of the above complaint for the offences under Section 326 read with Section 114 of the Indian Penal Code, 1860. Criminal Case No.324 of 2011 came to be registered with Metropolitan Magistrate, Court No.25, Ahmedabad. The applicant filed an application Exhibit 5 for discharge under Section 227 of the Cr.P.C. (hereinafter referred to as ‘the Code’). The same came to be dismissed as per the order impugned.
3. Learned advocate Mr.E.E. Saiyed for the applicant submitted that on the bare contents of the complaint itself, the ingredients of offence under Section 326 of the Indian Penal Code, 1860 were not satisfied, nor Section 114 of the Indian Penal Code, 1860 gets attracted in the facts of the case. It was submitted that when the offences under Section 326, 114 of the Indian Penal Code, 1860 were not made out even prima-facie, the learned Magistrate ought to have discharged the applicant. Learned advocate also raised a contention that the charge was framed without hearing the applicant and that it was the duty of the Court to frame the charge against the applicant after hearing him.
3.1 Learned Additional Public Prosecutor submitted that what is required to be seen by the learned Judge at the stage of framing of charge is the prima-facie aspect whether the offence is made out. He submitted that on the basis of what is stated in the complaint, the involvement of the applicant in the criminal act was prima-facie noticed and accordingly the applicant is charged for the offences under Section 326 and 114 of the Indian Penal Code, 1860.
4. In light of the contents of the complaint noted above, it is useful to consider Section 326 and 114 of the Indian Penal Code. Section 326 reads as under:
“326. Voluntarily causing grievous hurt by dangerous weapons or means.--Whoever, except in the case provided for by section 335, voluntarily causes grievous hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance, or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.”
4.1 Section 114 is an offence by an abettor. The same is reproduced hereunder:
“114. Abettor present when offence is committed.- Whenever any person, who is absent would be liable to be punished as an abettor, is present when the act or offence for which he would be punishable in consequence of the abetment is committed, he shall be deemed to have committed such act or offence.”
4.2 Section 107 of the Indian Penal Code explain what is abetment. Section 107 being relevant, is reproduced hereunder:
“107. Abetment of a thing.- A person abets the doing of a thing, who-
Firstly – Instigates any person to do that thing; or Secondly – Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, an in order to the doing of that thing; or Thirdly – Intentionally aids, by any act or illegal omission, the doing of that thing.”
5. When the contents of the complaint is seen, it is noticed that according to the complainant, she had “suspicion” that throwing of inflammable liquid was at the instance of the applicant herein. What is stated is that she only suspected that the applicant may have instigated the offence. Thus, complaint is based on a suspicion only. It is not known as to whom the alleged
6. From Section 326 of the Indian Penal Code, quoted hereinabove, if the essential ingredients of the offence of voluntarily causing grievous hurt by dangerous weapons or means, are examined, which would indicate that offence under Section 326 is committed by one, who causes grievous hurt by means of fire or any heated substance, etc., which is deleterious to human body. As far as offence under Section 326 charged against the applicant, indisputably, it is not the case of the complainant that the applicant himself has used any means or any instrument of fire, etc. Concededly, the applicant is not one, who has cause grievous hurt to the complainant.
6.1 What is alleged is that a unknown person, whose name is not known to the complainant, nor such person is identified, visited the place and threw inflammable liquid from the bottle on the face of the complainant. The act of throwing liquid is by third person, who is not known. Suggestion in the complaint is that such third person was instigated by the applicant. Again as noted above, the applicant's role in instigation was basis on suspicion. In the above light, basic ingredients of Section 326, Indian Penal Code are not established. The applicant could not have been charged for the said offence.
7. The offence under Section 114 of the IPC is by an abettor. The Section is attracted where by the offence by principal offender is abetted and the abettor is to be roped in for such offence. Abetment of a thing is explained in Section 107 of the IPC. The abetment for the purpose of Section 114 has to be of kind mentioned in Section 107. The ingredients of Section 114 include the participation of abettor in the offence, who may not be present at the time of commission of offence, but at the same time, had abetted the offence from a distance. The de jure presence is contemplated. The abetment has to be prior to the commission of offence and complete and the abettor may not be actually present at the time of actual commission of offence, but because of his abetment, the Section is attracted. The participation in commission of offence by way of abetment has to be a de facto participation. In order to bring into operation Section 114, the circumstances constituting the abetment as above, have to be shown. The complaint in its content is empty in this regard. Thus, under Section 114 also no offence can be said to have been committed by the applicant. If the applicant is to be charged as an abettor, his presence in the above manner is necessary. The complaint does not alleged even his presence. The facts and averations are not sufficient to attract Section 114 of the Indian Penal Code.
7.1 Thus, either of the Section 326 or 114, Indian Penal Code taken independently, or both taken together, no offence thereunder is made out against the applicant. The principal offender is not identified, nor is known. Section 114 of the Indian Penal Code has to operate against abettor with reference to principal accused whose name is not disclosed in the complaint nor his identity is brought out by the investigating agency in course of investigation. Therefore, Section 114, Indian Penal Code cannot be made to operate in abstract. No ingredients of Section 114 are shown to be obtainable.
8. For the aforesaid reasons, charge framed against the applicant for the offence under Section 326 read with Section 114 of IPC was not permissible in law. The learned Metropolitan Magistrate clearly erred in dismissing the application for discharge of the applicant. The learned Magistrate proceeded on the erroneous reasoning that there was sufficient evidence against the applicant, when as discussed above, ingredients of offence under Section 326 read with Section 114 of IPC were not satisfied and no charge could have been framed against the applicant for the said offences.
9. Accordingly, the present revision application is allowed. The impugned order dated 27th September, 2012 passed by the learned Metropolitan Magistrate Court No.25, Ahmedabad below Exhibit 5 application in Criminal Case No.324 of 2011 is hereby set aside. Rule is made absolute.
10. While parting, however, it is observed that it will be open for the investigating agency to investigate the matter further with regard to complaint in question. The present order is passed on the basis of the state of facts obtained at this stage. If in the investigation, which may be carried out henceforth, involvement of the present applicant is found, the law will take its own course.
(N.V.ANJARIA, J.) Anup