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1988 DIGILAW 229 (PAT)

Rajendra Kumar Singh v. State or Bihar

1988-05-13

S.N.JHA

body1988
JUDGMENT S. N. Jha, J. This application has been filed for setting aside an order dated 24.5.1985 by which the 3rd Addl. Sessions Judge Begusarai has rejected the prayer of the petitioner to discharge him under section 227 of the Code of Criminal Procedure (for short ‘the Code’). 2. The facts which led to the filing of this application, in short, are that a confidential report was received by the Officer Incharge, Phulwaria police station that a group of certain criminals armed with deadly weapons, who after committing certain dacoities and other crimes, are proceeding towards zero mile from Muzaffarpur in jeep to commit dacoity in Meera hotel situate at zero mile. On the basis of the said confidential report the Sub-Inspector of police along with other constables started for Bagwahdih and reached Kanwaz outpost at about 9.30 P.M. and acquainted the police personnel’s who were on duty at the said out post with the aforesaid information and directed them to keep watch on the vehicle passing through that road. In the meantime, a jeep bearing no. BHI-1811 came speedily from west to eats near the barrier. The police personnel’s wanted to stop the said jeep by giving signals. The driver attempted to run away with the jeep But, due to the road barrier, he could not succeed. In the mean time three persons jumped from the jeep and wanted to run away taking advantage of the darkness but in doing so, they received injury. On search of the said jeep ten persons were arrested on the spot who after interrogation disclosed their names as mentioned in the first information report. One rifle in good condition with a number of live cat ridges were recovered. A sum of Rs. 4890/-was also seized from the possession of the arrested persons. One Chinese torch was also recovered from the possession of one of the apprehended persons. One bottle of country wine with Panama cigarette was also found. The apprehended persons did not give any satisfactory explanation for the said items. All those articles were seized after performing necessary formalities and the apprehended persons were arrested. A copy of the first information report is annexed as Annexure-1 to this application. 3. The police after investigation submitted charge-sheet against one Sudhir Kumar Singh along with ten other accused persons noted in the charge-sheet under sections 399/402 of the Indian Penal Code. All those articles were seized after performing necessary formalities and the apprehended persons were arrested. A copy of the first information report is annexed as Annexure-1 to this application. 3. The police after investigation submitted charge-sheet against one Sudhir Kumar Singh along with ten other accused persons noted in the charge-sheet under sections 399/402 of the Indian Penal Code. Thereafter the case was committed to the court of Sessions. 4. From annexure-3, it appears that the bail application of the said Sudhir Kumar Singh was rejected earlier. Subsequently he was granted provisional bail on the ground of his serious illness in the jail till 21.4.1984 but on the expiry of the date, he did not surrender before the court of Sub-divisional Judicial Magistrate; Begusarai and warrant of arrest was issued against him. 5. From the statements made in the application it appears that the father of the aforesaid Sudhir Kumar Singh filed a petition before the Sub-divisional Judicial Magistrate, Begusarai alleging therein that the petitioner who was actually apprehended on the spot, falsely disclosed his name as Sudhir Kumar Singh. On the basis of the said petition, the petitioner was arrested on 22.5.1984 and remanded to jail custody. A copy of the said petition is annexure-4 appended to this application. 6. From the impugned order, it appears that at the time of framing of the charge, Sudhir Kumar Singh was present in the dock and seven other accused persons were represented through their lawyer. The learned Public Prosecutor submitted that the charge under section 399/402 of the Indian Penal Code and 25A and 26 of the Arms Act, be framed against all the accused persons except the said Sudhir Kumar Singh. It was submitted by the learned Public Prosecutor that Sudhir Kumar Singh should be discharged in the case because the petitioner who was arrested on the spot disclosed his name falsely as Sudhir Kumar Singh. 7. A petition, as indicated above, was also filed on behalf of the petitioner to discharge him under section 227 of the Code but that prayer was rejected. Hence this application. 8. The learned counsel appearing on behalf of the petitioner has submitted that the petitioner was not named in the first information report and even after investigation there was no whisper against the petitioner either in the case diary or in the police report. Hence this application. 8. The learned counsel appearing on behalf of the petitioner has submitted that the petitioner was not named in the first information report and even after investigation there was no whisper against the petitioner either in the case diary or in the police report. According to the learned counsel, the said Sudhir Kumar did not file any application before the Court till 31-3-1984 but all of a sudden his father Ramnarain Singh filed a petition alleging therein that the petitioner Rajendra Kumar Singh gave his name as Sudhir Kumar and on that basis the petitioner was arrested and remanded to jail custody which is illegal and unwarranted. The petitioner filed a petition under section 227 of the Code for his discharge which has been rejected illegally. 9. Section 227 of the Code reads as follows:- “If upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reason for so doing." This section is a new provision. Since the committal proceeding has been abolished by the new Code, the power of discharge or of framing charge has been transferred to the Sessions Court. The Sessions Judge after going through the records and hearing the submissions of the parties, if any will consider whether there are sufficient grounds for proceeding against the accused. If, in his opinion, there are no such grounds, he shall discharge the accused but at the same time if the Session, Judge after going through the record finds sufficient grounds for proceeding against the accused, he shall frame a charge under section 221 of the Code and proceed with the trial. 10. I have perused the impugned order. The learned Sessions Judge while disposing of the said application has observed as follows :- “When the learned Prosecutor himself does not propose the charge in question to be framed against Sudhir Kumar Singh, it is not possible to frame charges against him at this stage. In case the evidence against him it received at trial, he may be summoned under section 319 Cr. In case the evidence against him it received at trial, he may be summoned under section 319 Cr. P. C. It shall not be out of place to mention here that the totality of the materials available in the case diary indicate that amongst others a man was apprehended with arms under circumstance showing that he committed the offence punishable under section 399 and 402 I.P.C. and 25A and 26 Arms Act. That man gave his name as Sudhir Kumar and was remanded to custody. Subsequently he procured provisional bail and jumped it. Later on under the circumstances, which need not be recited here Rajendra Kumar alias Raju was arrested and the prosecution alleges that this Ranjendra Kumar @ Raju gave his name falsely as Sudhir Kumar. At this stage it is not possible to say whether the contention of the prosecution that Rajendra Singh gave his name as Sudhir is correct or not but for the time being the allegation of the prosecution have to be taken as prima-facie correct and the charges have to be framed on its basis” 11. Under the above circumstances the learned Judge discharged Sudhir Kumar Singh on the condition that in case evidence against him is received during the trial, he will be summoned. 12. I do not find any illegality in the impugned order. By this order, the petitioner cannot claim to be discharged. If, in the opinion of the learned Sessions Judge, there is ground for presuming that the petitioner has committed the offence, he can frame charge under section 228 of the Code. Order framing of charge is an inter-locutory order not vulnerable in revision unless it is challenged on the ground of want of jurisdiction. An order framing a charge or issuing a process against an accused is an interlocutory order being a procedural step and which has not decided the question of guilt or innocence of the accused. In my opinion such an order is no longer open to revision and the High Court cannot set-aside such an order under its revisional jurisdiction. 13 It appears that the petitioner had earlier moved this Court under section 482 of the Code for quashing of the impugned order in Cr. Misc. No. 7070/1985. In my opinion such an order is no longer open to revision and the High Court cannot set-aside such an order under its revisional jurisdiction. 13 It appears that the petitioner had earlier moved this Court under section 482 of the Code for quashing of the impugned order in Cr. Misc. No. 7070/1985. The learned counsel after some argument stated that the said application was not maintainable and in that view of the matter, the said application was dismissed vide order dated 31.8.1985 with the observation that the petitioner will be liberty to seek any other remedy available to him in law. Thereafter this application has again been filled for setting aside the same order under the revisional jurisdiction of this court. 14. Once the High Court has already dismissed the application challenging the impugned order under its inherent jurisdiction, I do not find any cogent ground to entertain this application again under the revisional jurisdiction of this Court. Accordingly I find no merit in this application and it is dismissed. Application dismissed.