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1976 DIGILAW 242 (PAT)

Naresh Yadav v. State of Bihar

1976-12-06

MUNESHWARI SAHAY

body1976
JUDGMENT MUNESHWARI SAHAY, J. 1. This application is directed against the order dated 19.8.1976, by Shri D.N. Pradhan, 4th Additional Sessions Judge, Bhagalpur by which the learned Additional Sessions Judge had framed a charge against the petitioners for an offence under section 396 of the Indian Penal Code. It is said that a dacoity had taken place at village Basantpur within Sabour police station on the night on 25.9.1973 and on the statement of one Basant Pd. Singh, Sabour P.S. Case No. 10 dated 25.9.1973 was registered under section 396 of the Indian Penal Code. Only two persons were named as accused in the fardbeyan. They were Ramchander Sah and Basdeo Yadav and not the petitioners. After investigation the police submitted charge sheet against 14 persons including the two petitioners. The accused persons were committed to the court of session by the learned Chief Judicial Magistrate, Bhagalpur and the case was eventually transferred to the file of the 4th Additional Sessions Judge, Bhagalpur. 2. On 14.8.1976, a petition was filed before the learned Additional Sessions Judge on behalf of nine accused persons including the two petitioners in which it was said that there was no legal evidence to implicate those nine accused in the occurrence and therefore it was prayed that they be discharged under section 227 of the Code of Criminal Procedure, 1973. The learned Additional Sessions Judge heard the parties on the question of framing of the charge on 19.8.1976 and he came to the conclusion that there were sufficient grounds for framing a charge under section 396 of the Indian Penal Code against all the accused persons. Accordingly a charge was so framed against the accused persons including the petitioners. 3. Learned counsel, appearing on behalf of the petitioners has submitted that there was no material before the learned Sessions Judge which could satisfy him that there was any ground for presuming that the petitioners had committed an offence under section 396 of the Indian Penal Code. In fact it is said that on the materials before him the learned Additional Sessions Judge should have come to a conclusion that there was no sufficient ground for proceeding against the petitioners. It is pointed out that the only material which emerged in course of the investigation of this case against the petitioners was the confession of two of the accused namely Jhuper Mandal and Gopi Yadav. It is pointed out that the only material which emerged in course of the investigation of this case against the petitioners was the confession of two of the accused namely Jhuper Mandal and Gopi Yadav. Jhuper Mandal was examined before the magistrate under section 164 of the Code of Criminal Procedure and according to that statement petitioner Naresh Yadav had also participated in the crime. Accused Gopi Yadav was also examined under section 164 of the Code of Criminal Procedure on the same date and in his statement he implicated both the petitioners for having participated in the dacoity. Both these accused persons however later on sent petitions from the prison to the court in which they stated that the police had coerced and threatened them to make a confessional statement, that confessional statement was not true and they prayed that they should again be produced before a magistrate to make their statements. Gopi Yadav had sent his petition on 12.11.1973 and Jhuper Mandal on 14.11.1973. Learned counsel therefore submits that the confessions which Jhuper Mandal and Gopi Yadav had made had been retracted shortly after they had made the confessional statements. In this view of the matter as retracted confession of co-accused had no legal weight against the petitioners and as it was the only material against the petitioners in the entire record it is contended that the learned Additional Sessions Judge was in error in holding that there was sufficient material against the petitioners for framing a charge under section 396 of the Indian Penal Code against them. Learned counsel for the State admitted that the retracted confessions of the two co-accused were the only materials which could be considered against the petitioners. Learned counsel however contended that it was possible that at the time of trial some witnesses might identify the petitioners as well as among those who had participated in the crime. It has been pointed out that the petitioners have not been named in the first information report and that none of the witnesses bad named these petitioners during the investigation in his statement before the investigating officer. Therefore it will be only an idle speculation to say that some witnesses might identify these petitioners at the trial. Admittedly the petitioners were not put on any test identification parade. Therefore, there was no question of any witness identifying them by their faces. 4. Therefore it will be only an idle speculation to say that some witnesses might identify these petitioners at the trial. Admittedly the petitioners were not put on any test identification parade. Therefore, there was no question of any witness identifying them by their faces. 4. Learned counsel for the petitioner referred to section 227 of the Code which provides inter alia that if upon a consideration of the record of the case and the document submitted therewith and after hearing the submission of the accused and the prosecution in this behalf the judge considers that there is not sufficient ground for proceeding against the accused be shall discharge the accused and record his reasons for so doing. I need hardly say that after coming into force of the new Code of Criminal Procedure charges are framed in Sessions Court itself. Section 207 of the Code provides that in a case where a proceeding has been instituted on a police report the magistrate shall without delay furnish to the accused free of cost a copy of each of the following:– (i) Police report. (ii) First information report recorded under section 154. (iii) Statement recorded in sub-section (3) of section 161 of all the persons whom the prosecution proposes to examine as its witness. (iv) Confession and statement if any recorded under section 164 and (v) Any other document or relevant extract thereof forwarded to the magistrate with the police report under subsection 5 of section 173. Section 209 of the Code lays down inter alia that when in a case instituted on a police report or otherwise the accused appears or is brought before the magistrate and if it appears to the magistrate that the offence is triable exclusively by the court of session he shall commit the case to the court of session and send to that court the record of the case and document, articles if any which are to be produced in evidence. Therefore under section 227 of the Code while considering the question as to whether a charge should or should not be framed against an accused the sessions court was to take into consideration the record of the case and the documents submitted therewith. The session& Court is not required to imagine and speculate as to what evidence might be produced at the trial. The session& Court is not required to imagine and speculate as to what evidence might be produced at the trial. He has to restrict his consideration to the materials which already existed on the record before him. I have already pointed out earlier that the only material against the petitioners in this case is retracted confession of two of the co accused. In such circumstances the learned Additional Sessions Judge could not have come to the conclusion that there was ground for presuming that the accused had committed an offence which was exclusively triable by the sessions court. So long the learned Judge did not come to the conclusion that there was ground for presuming that the accused had committed an offence which was exclusively triable by the sessions court he could not frame a charge against him. I am satisfied for the reasons given that the order of the learned Additional Sessions Judge dated 19.8.1976 framing a charge against the petitioners under section 396 of the Indian Penal Code is erroneous in law and has resulted in miscarriage ofju5tice. The order to that extent is hereby set aside. The application is allowed. Application allowed.