IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL REVISION APPLICATION NO. 29 OF 2002 Shri Nilcomta G. Amonkar, s/o Gangadhar Amonkar, major, married, landlord, r/o Curchorem, Goa. ...Petitioner Versus 1. Shri Ramesh M. Bandodkar, s/o Manguesh Bandodkar, major of age, r/o Curchorem, Goa, near Railway Gate, 2. Shri Dinkar S. Porob, s/o Savlaram Porob, 3. Shri Sudhir D. Porob, s/o Dinkar Porob, 4. Shri Santosh D. Porob, s/o Dinkar Porob, 5. Shri Subhash D. Porob, s/o Dinkar Porob, 6. Shri Kalidas D. Porob, s/o Dinkar Porob, 7. Shri Mustak Adam Shaikh, s/o Adam Shaikh,(expired), 8. Shri Laximon D. Naik, s/o Damodar Naik, 9. Shri Durganand D. Porob, s/o Dinkar Porob, all r/o Kakoda, Curchorem, Goa, and 10.State, (through P.O. Margao). ...Respondents. Shri N. N. Sardessai, advocate for the petitioner. Shri S. D. Lotlikar, Senior Advocate with Ms. S. Dessai, advocate for respondent nos.1 to 6, 8 & 9. CORAM : SMT. NISHITA MHATRE, J. Date of reserving the judgment : 20th February, 2004 - 2 - Date of pronouncing the judgment : 26th February, 2004. JUDGMENT By this Criminal Revision Application the petitioner challenges the Order passed by the District and Sessions Court, South Goa, Margao, in Criminal Revision Application No.18 of 2002 dated 26th September, 2002 by which Order the Sessions Judge has allowed the revision petition against the Order of the Judicial Magistrate First Class, Quepem, as a result of which the respondents have been discharged under Sections 143, 144, 149, 427, 506, 379 and 447 of the Indian Penal Code. 2. The complainant, i.e. the petitioner herein, filed a criminal complaint against the accused on 6th July, 1994 under Sections 143, 144, 149, 427, 506, 379 and 447 of the Indian Penal Code. The allegation against the respondents was that on 4th July, 1994 at about 9.30 a.m. when the petitioner had started repairing his garage, all the accused trespassed into the property of the petitioner by forming an unlawful assembly. The respondents threatened the petitioner and his family members with dire consequences if the garage that the petitioner claimed to be repairing was not removed. It was then alleged that the respondents demolished the garage. The respondents had brought pick axes, sickles and sticks into the petitioner’s property and cut trees which had grown near the garage, including the kesar tree and some other flowering trees. It was also alleged that the respondents - 3 - removed the poles and rafters which were tied around the house for the purpose of plastering the newly constructed floor and committed robbery by taking away the material, including four zinc sheets, seven beams and nine rafters, all costing Rs.8,000/-. 3. At the request of the petitioner, the Judicial Magistrate First Class ordered an enquiry under Section 156(3) of the Criminal Procedure Code. On receipt of the report from the Police on 10th August, 1994, the Judicial Magistrate First Class came to the conclusion that the dispute between the parties was purely of civil nature and, therefore, dismissed the complaint under Section 203 of the Criminal Procedure Code on 11th August, 1995. A revision was preferred before the Sessions Court by the petitioner. This revision application was allowed and the Curchorem Police Station was directed to hold further enquiry into the matter. The respondents preferred a Criminal Revision Application before this Court, being Criminal Revision Application No. 18/97. On 10th July, 1997, this Court allowed the revision petition filed by the respondents and quashed the offence for which the process had been issued. However, the High Court directed the matter to be remanded to the Judicial Magistrate First Class for recording evidence of the petitioner under Section 200 Criminal Procedure Code. 4. Accordingly, the statement of the petitioner was - 4 - recorded on 18th November, 1994, and the statements of the witnesses of the petitioner Vallab Amonkar and Dattaram Naik were also recorded. Process was issued against the respondents, which Order was challenged before the Sessions Court. The Sessions Judge dismissed the revision petition on 12th November, 1999. 5. A charge was framed against the respondents by the Judicial Magistrate First Class on 12th April, 2002. This Order of the Judicial Magistrate First Class was challenged by the respondents in Criminal Revision Application no. 18/2002. By the Order dated 26th September, 2002, the Criminal Revision Application was allowed by the Sessions Judge and the respondents stood discharged. It is this Order which is impugned in the present petition. 6. Shri Nitin Sardessai, learned advocate appearing for the petitioner submits that the Sessions Court has erred in entering into the aspects of the details of the offence while framing the charge. He submits that rather than confining himself to ascertain whether a prima facie case has been made out, the Sessions Judge examined the probative value of the depositions of the witnesses which could be done only at the trial. The Judicial Magistrate First Class had found that there was unlawful assembly, theft and threats meted out to the petitioner by the respondents and, accordingly, the charge was framed by him. The learned advocate submits that - 5 - while framing the charge the Magistrate only has to arrive at a presumptive opinion. In support of this submission he relies on the case of Supdt. & Remembrancer of Legal Affairs, Supdt. & Remembrancer of Legal Affairs, Supdt. & Remembrancer of Legal Affairs, West Bengal vs. Anil Kumar Bhunja & Ors., West Bengal vs. Anil Kumar Bhunja & Ors., West Bengal vs. Anil Kumar Bhunja & Ors., reported in AIR 1980 SC 52. The learned advocate also submits that the probative value of the statements of the witnesses cannot be gone into by the Judicial Magistrate First Class while framing the charge and therefore, the Judicial Magistrate First Class had correctly found that a prima facie case had been made out by the petitioner that the accused had committed the offence. He also relies on the judgment in the case of State of State of State of Maharashtra, etc. etc. vs. Som Nath Thapa, etc. etc. Maharashtra, etc. etc. vs. Som Nath Thapa, etc. etc. Maharashtra, etc. etc. vs. Som Nath Thapa, etc. etc., reported in AIR 1996 SC 1744. 7. The learned advocate appearing for the respondents submits that on an overall assessment of the facts before him the Judicial Magistrate First Class is entitled to arrive at an opinion as to whether an offence has, prima facie, been committed. However, in this case he submits that the facts indicate that no offence has been committed by the respondents. At best, the learned counsel submits, that the incident did occur on 6th July, 1994. However, this incident could not be termed as an offence having been committed by the respondents. He relies on the judgment in the case of M/s. M/s. M/s. Pepsi Foods Ltd.& Anr. vs. Special Judicial Magistrate & Pepsi Foods Ltd.& Anr. vs. Special Judicial Magistrate & Pepsi Foods Ltd.& Anr. vs. Special Judicial Magistrate & Ors. Ors. Ors., reported in JT 1997 (8) SC 705, wherein the Apex Court had considered what are the criteria which the court should - 6 - consider while summoning the accused at the trial . 8. The case made out by the complainant before the Sessions Court was that he was repairing his garage when the respondents demolished the same and committed theft of certain articles. The defence of the respondents was that the petitioner was erecting a garage on a three metre wide access road, thereby denying the respondents access to the link road between the Curchorem-Quepem road and the Curchorem-Sanguem road. The Sessions Court found that it was necessary for the Judicial Magistrate First Class to have given a prima facie finding whether the complainant had proved that there was no access as claimed by the respondents and whether there was at all any garage or structure which was being repaired by the complainant. The Sessions Court found that prima facie the petitioner had not been able to make out a case that there was no road existing upto the link road, and that there was only an access provided to the petitioner to his own property. The Sessions Court found that this three metres wide road was an access not only provided to the petitioner but for the general public and, therefore, held that the evidence led by the petitioner was self-contradictory and intrinsically untrustworthy and, therefore, it could not be accepted for the purpose of framing of the charge. 9. What is required to be considered while framing the charge is whether a prima facie case has been made out by - 7 - the prosecution. The Magistrate is required to consider the question of framing of the charge on a general assessment of the materials placed before hm by the Investigating Officer. Thus the standard of proof required at this stage is not the same as is required to be applied at the stage of the trial. A strong suspicion founded upon the material before the Magistrate may justify the framing of a charge. The Apex Court in the case of Supdt. & Remembrancer of Legal Affairs, Supdt. & Remembrancer of Legal Affairs, Supdt. & Remembrancer of Legal Affairs, West Bengal vs. Anil Kumar Bhunja & Ors. West Bengal vs. Anil Kumar Bhunja & Ors. West Bengal vs. Anil Kumar Bhunja & Ors. (supra) has held that once the Magistrate has a strong suspicion founded upon materials before him which leads him to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged, the Magistrate would be justified in framing of the charge against the accused in respect of the commission of that offence. Similarly, in the case of State of Maharashtra vs. Som Nath Thapa State of Maharashtra vs. Som Nath Thapa State of Maharashtra vs. Som Nath Thapa (supra), the Apex Court has held that if there is a ground for presuming that the accused has committed the offence a Court can justifiably say that a prima facie case against him exists, and frame a charge against him for committing that offence. The Apex Court has further observed that if on the basis of the materials on record the Court can come to the conclusion that the commission of the offence is a probable consequence a case for framing of charge exists. The Court has also observed that even if the Magistrate were to think that the accused might have committed the offence, it can frame the charge. At the stage of framing of the charge the probative - 8 - value of the materials on record cannot be gone into; the materials brought on record by the prosecution have to be accepted as true at that stage. 10. The Judicial Magistrate First Class has found that there was a prima facie case made out by the complainant. He has considered the failure of the complainant to step into the witness box and depose before the Magistrate. The Judicial Magistrate First Class has rightly taken the view that it is not only the complainant who is required to examine himself, but any other witness. Therefore, merely because the complainant is not examined, it cannot be considered fatal to the prosecution as the complainant had examined his son, who was a witness to the incident. Much has been made out by the Sessions Court that the petitioner had not examined himself and that the evidence led was intrinsically untrustworthy. All this indicates that the Sessions Court has travelled far beyond the jurisdiction required to be exercised by the Court while framing the charge. 11. The revision petition is, therefore allowed. The impugned Order dated 26th September, 2002 is set aside and the Order of the Judicial Magistrate First Class dated 12th April, 2002, is confirmed. Rule made absolute with no order as to costs. SMT. NISHITA MHATRE, J.