Research › Search › Judgment

Sikkim High Court · body

2001 DIGILAW 2 (SIK)

THIGYAL LAKHAR v. STATE

2001-03-03

ANUP DEB

body2001
ANUP DEB, J. ( 1 ) THIS Court, in order to be satisfied as to the correctness, legality and propriety of the order dated 6th May 1996 and 10th July 1996 passed by the Ld. Judicial Magistrate, East at Gangtok, in Criminal Case No. 44 of 1996 under S. 326 of the Indian Penal Code (in short IPC), directed the Criminal revision to be registered. ( 2 ) A charge sheet was filed against one Thigyal Lakhar (hereinafter referred to as the opposite party) under S. 307, IPC before the learned Judicial Magistrate, East at Gangtok. The learned Judicial Magistrate, while taking cognizance of the offence under S. 326, IPC instead of S. 307, IPC against the opposite party recorded the following reasons :-"accused has been alleged for the offence under S. 307, IPC however on the perusal of the case record during the course of investigation the weapon used, a pistol was recovered with 6 live cartridges and one empty cartridge and the accused took victim to the nearest hospital for necessary medical treatment immediately after the incident who was also taken to the Delhi for further treatment till his recovery by the accused. It is also in the record that while disposing the bail petition the ld. P. P. has conceaded that there is no material for the offence under S. 307, IPC. On my careful perusal of the case record and the material discussed above there is no sufficient material for offence u/s. 307 hence cognizance taken for the offence under S. 326, IPC against the accused. " ( 3 ) IT appears from the order dated 10th July 1996, that, the learned Public Prosecutor made following submissions :-"ld. P. P. contended that on 25-9-1995 at around 8-30 p. m. the victim Tenzing Bhutia and the complainant Sonam Sangadarpa while returning from Sheri Punjab Hotel went to Hotel Stay well owned by the accused. The complainant Sonam Sangdarpa remained outside the Hotel whereas the victim Tenzing Bhutia went inside the Hotel to enquire as to why he was evicted from the room which he was occupying of Hotel Stay well 20 days before the incident. The Manager of the Hotel told the victim that he had to vacate the room, occupied by the victim as per the order of the Hotel owner, the accused. The Manager of the Hotel told the victim that he had to vacate the room, occupied by the victim as per the order of the Hotel owner, the accused. Thereafter victim Tenzing Bhutia went inside the chamber of the Hotel owner accused Thigyal Lakhar whereas the complainant, friend of the victim Sonam Bhutia stayed outside the corridor. When the victim enquird and asked for clarification from the Hotel owner the accused he became furious and shouted at the victim. In the meantime complainant friend of the victim Sonam Bhutia heard the shouting from the corridor of Hotel and rushed inside the room. The accused in a furious mood pushed both the victim Tenzing Bhutia and the complainant Sonam Sangdarpa who fell on the floor. The accused took out his revolver from drawer of side table and fired at the victim Tenzing Bhutia. The whole episode of the incident was witnesses by the Hotel Manager Shri Devasish Roy who was standing by the side of the accused Thigyal Lakhar, however when it was detected that the victim Tenzing Bhutia was bleeding caused by the bullet complainant Sonam Sangdarpa went out of the room for help and the accused with his Hotel staff took the victim to S. T. N. M. Hospital, Gangtok for treatment and have the victim admitted there. During the course of examination the I. O. has examined relevant witnesses and from the medical report of the victim grevious injury has been caused by the fire arm hence there are sufficient material to prosecute the accused for the alleged offence under S. 326 of the Indian Penal Code. " ( 4 ) THE learned Judicial Magistrate made reference to the bail application of the accused being Criminal Misc. Case No. 38 of 1995 and observed :-"the ld. P. P. Shri U. P. Sharma has conceded that there is no material under S. 307 of the Indian Penal Code against the accused and on the very ground the bail petition was allowed by the learned Chief Judicial Magistrate, East and North at Gangtok. Case No. 38 of 1995 and observed :-"the ld. P. P. Shri U. P. Sharma has conceded that there is no material under S. 307 of the Indian Penal Code against the accused and on the very ground the bail petition was allowed by the learned Chief Judicial Magistrate, East and North at Gangtok. Hence considering all these evidence available in the case record the alleged offence against the accused under S. 307 of the Indian Penal Code was reduced to S. 326 of the Indian Penal Code" ( 5 ) AFTER hearing the arguments of the learned Public Prosecutor and the defence counsel, the learned Judicial Magistrate was of the view that there was no material to make out a prima facie case for an offence under S. 307 of the IPC against the opposite party. Accordingly, charge was framed under S. 326, IPC Considering the fact that the opposite party was the first offender and the conduct of the accused who himself removed the victim from the place of occurrence to the nearest hospital, immediately, after the incident and thereafter to Delhi for necessary medical treatment at Gangaram Hospital at the expenses of the opposite party, the opposite party was convicted and sentenced to undergo simple imprisonment till rising of Court and to pay a fine of Rs. 4,000/- and in default thereof the opposite party was to undergo simple imprisonment for four months more. On 16th July 1996, the opposite party deposited Rs. 4,000/ -. ( 6 ) DURING the course of investigation, the Investigating Officer visited hospital wherein the condition of victim Tenzing Bhutia was found deteriorating and accordingly the Sub-Divisional Magistrate, Gangtok was called who later recorded the statement of victim under S. 32 of the Evidence Act. The oppoite party was arrested who was found attending the victim at the hospital, and, later, on the statement made by the opposite party under S. 27 of the Evidence Act, one 32 Revolver with six live rounds and one empty cartridge were recovered and seized in a semi-cocked position from the shelf of the side table of the office of the opposite party, at Hotel Stay well, Gangtok. Further the Investigating Officer, seized the Arms licence No. 66/arms/95-96 registered in the name of the opposite party as produced by him. Statements of all the available witnesses were recorded. Further the Investigating Officer, seized the Arms licence No. 66/arms/95-96 registered in the name of the opposite party as produced by him. Statements of all the available witnesses were recorded. Statement of one Debasis Roy, the Manager of the Hotel was recorded by the Ld. Judicial Magistrate, East under S. 164, Cr. P. C. Place of occurrence was inspected thoroughly and the photographs were taken from different angles. Victim Tenzing Bhutia who had sustained the fire arm injury on the neck, was referred to Delhi for further treatment wherein a projectile/pellet of bullet was recovered and extracted from the chest wall of the victim by the doctor of Sir Gangaram Hospital in Delhi and sent to Gangtok through post which was accordingly taken into possession by the police. Later, all the exhibits i. e. Revolver, Live ammunition. Empty cartridge and the projectile were sent to Ballistic Expert, CFSL, Calcutta for expert opinion. ( 7 ) ON perusal of the records of the case, if appears that a prima facie case under S. 307, IPC was made out and the offence under S. 307, IPC is triable exclusively by a Court of Session and it was the duty of the Ld. Judicial Magistrate to commit after complying with the relevant provisions of Code of Criminal Procedure, the case, to the Court of Session, but instead of doing so, the Magistrate took cognizance of the offence under S. 326, IPC against the opposite party without application of mind and the Ld. Judicial Magistrate failed to appreciate the seriousness of the offence. The victim sustained fire arm injury on the neck and during the treatment a projectile/pellet of bullet was recovered and extracted from the chest wall of victim Tenzing Bhutia by the Doctor of Sir Ganga Ram Hospital in Delhi. ( 8 ) ONE of the grounds for taking cognizance of offence u/s. 326, IPC instead of 307, IPC by the Ld. Judicial Magistrate, East, Gangtok, was, that while disposing the bail application the Ld. Public Prosecutor conceded that there was no material to make out a case under S. 307, IPC. While taking cognizance of an offence, a Magistrate is under obligation and is required to apply his judicial mind on the materials on record and he should not be guided or influenced by any concession made by a Public Prosecutor, while disposing of bail application. While taking cognizance of an offence, a Magistrate is under obligation and is required to apply his judicial mind on the materials on record and he should not be guided or influenced by any concession made by a Public Prosecutor, while disposing of bail application. Any concession made by Public Prosecutor while disposing of bail application has no relevance and is rather immaterial and such concession cannot form one of the grounds for taking cognizance by a Magistrate. The Magistrate will have to apply his mind and arrive at the conclusion regarding taking cognizance of offence independently. The Ld. Judicial Magistrate, East erred in law in considering the concession made by the Public Prosecutor as one of the grounds for taking cognizance of the offence under S. 326, IPC instead of S. 307, IPC which is as wholly unwarranted and uncalled for. ( 9 ) THE opposite party was convicted and sentenced to undergo simple imprisonment till rising of the Court and to pay a fine of Rs. 4,000/- and in default to pay the fine, the opposite party was to undergo simple imprisonment for four months more vide order dated 10th July 1996. The Judicial Magistrate had taken a very lenient view while sentencing the opposite party to undergo simple imprisonment till rising of the Court and to pay a fine of Rs. 4000/- and in default to pay the fine, the opposite party was to undergo simple imprisonment for four months. ( 10 ) WHILE framing charge, one of the grounds was that the Public Prosecutor conceded, while disposing of the application for bail, that there were no materials for an offence under S. 307, IPC which is exclusively triable by Court of Session, and taking concession of Public Prosecutor as one of the grounds the Judicial Magistrate framed charge under S. 326, IPC instead of Section 307, IPC. An offence under S. 326, IPC is triable by a Magistrate of the first class. The opposite party might have filed application for bail soon after his arrest and bail might have been granted immediately after the arrest or at a very early stage. It is not clear from the order dated 10th July 1996 as to when bail was granted to the opposite party. The opposite party might have filed application for bail soon after his arrest and bail might have been granted immediately after the arrest or at a very early stage. It is not clear from the order dated 10th July 1996 as to when bail was granted to the opposite party. In my event, any concession made by the Public Prosecutor during the disposal of a bail application is wholly immaterial and irrelevant and such concession cannot form one of the grounds for framing charge and the Ld. Judicial Magistrate committed grave irregularity in doing so. It is incumbent upon a Magistrate while framing charge to apply his mind and carefully appreciate the materials on record as to whether prima facie an office has been committed under any penal law on the materials available on record. Propriety demands that a Magistrate shall be careful while converting an offence exclusively triable by Court of Session into an offence triable by Magistrate of the first class. In the present case, taking of cognizance and framing of charge under S. 326, IPC instead of S. 307, IPC by the Ld. Judicial Magistrate, East were highly improper. ( 11 ) THE opposite party was also sentenced to pay fine of Rs. 4,000/- vide order dated 10th July 1996. The Revenue Receipt No. R 413490 dated 16th July 1996 showing payment of Rs. 4,000/- as fine reveals that fine was paid on 16th July 1996 and not on 10th July 1996. The lower Court records do not reveal that the opposite party submitted any application to allow the opposite party to pay the fine at a later date. The opposite party did not execute any bond on the 10th July 1996. There is nothing on record that the Ld. Judicial Magistrate allowed the opposite party to pay fine of Rs. 4,000/- at a subsequent date. Since the fine was paid on 16th July 1996 and not on 10th July 1996, the Ld. Judicial Magistrate ought to have ordered to lodge the opposite party to jail to undergo simple imprisonment for four months in default of payment of fine or till such time the amount of fine was paid, but this has not been done. This is irregular. ( 12 ) THE Public Prosecutor, Mr. N. T. Bhutia who conducted the case before the Ld. This is irregular. ( 12 ) THE Public Prosecutor, Mr. N. T. Bhutia who conducted the case before the Ld. Judicial Magistrate (East) by filing an affidavit on 14th September 2000 and stated as follows :-" (B) That at that time I was quite fresh in the profession and due to my inexperience I failed to advise the Police Department/government to challenge the order dated 6-5-1996 passed by the Ld. Judicial Magistrate, East. " ( 13 ) THE incident took place on the 25th September 1995 and cognizance was taken by the Ld. Judicial Magistrate on 6th May 1996 and the opposite party was sentenced to undergo simple imprisonment till rising of the Court and to pay a fine of Rs. 4000/- and in default to pay the fine, the opposite party was to undergo simple imprisonment for four months. The conduct of prosecution is far from satisfactory and the prosecution did not feel necessity to move the higher forum against the orders dated 6th May 1996 and 10th July 1996 passed by the Ld. Judicial Magistrate, East and for the serious lapse on the part of the prosecution, the opposite party cannot be blamed or made responsible and it will not be proper to set aside the aforesaid orders dated 6th May 1996 and 10th July 1996 and to order remand of the case for retrial at such a belated stage after about five years. ( 14 ) IN the result, the revision is dismissed. Petition dismissed. --- *** --- .