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2004 DIGILAW 400 (MP)

Rahul Banerjee v. State of M. P.

2004-04-26

S.L.KOCHAR

body2004
Judgment ( 1. ) THIS revision petition has been filed against the order dated 10-11-2003 whereby the learned Trial Court has dismissed the prayer of the applicants for discharging them and held that prima facie offences against them under Sections 147, 148, 353/149, 332/149, 307/149, 109, 120-Band 121-A of IPC are made out. ( 2. ) IN brief the prosecution case is that on 2-4-2001, Collector Dewas alongwith Superintendent of Police, District Forest Officer, Special Police Force, Police Officials, Forest Officials and members of Van Samiti, in the morning at 8. 00 A. M. proceeded to Punjapura village. They were attacked by the villagers and members of Adivasi Mukti Morcha Sangathan, some were residents of Village Mehendikheda. They all were about 200 in numbers. Even after warning given by the Collector, they started pelting stone and also used bow arrow, gofan, rifle, country made pistol and caused injuries to as many as 13-14 police officials and employees of the forest department. At that juncture, one more group consisting about 150-200 villagers and members of Adivasi Mukti Morcha Sangathan also reached over there and attacked on the Collector and his associates. In that event the Collector had ordered for firing in self defence and during the course of firing, 3-4 persons from the opposite side have died. The police and forest officials had seized the bulk of wooden log which were illegally cut by the accused persons. The incident was reported in the police station and after due investigation, charge-sheet was filed for the above mentioned offences. ( 3. ) ON behalf of the applicants, application was filed under Section 227 of the Cr. PC for their discharge but the same has been dismissed by the impugned order. Hence, this revision. ( 4. ) THE contention of the learned Counsel for applicants is that a false case has been registered by the Administration against the applicants and especially against Rahul Banerjee who is working for upliftment and development of the villagers and tribals since last twenty years. The learned Counsel has filed certain booklets and literatures to this effect. ( 4. ) THE contention of the learned Counsel for applicants is that a false case has been registered by the Administration against the applicants and especially against Rahul Banerjee who is working for upliftment and development of the villagers and tribals since last twenty years. The learned Counsel has filed certain booklets and literatures to this effect. He has also submitted that the criminal prosecution has been launched with a malafide intention to bow down the accused applicant Rahul Banerjee and to vanish his influence, effect and closeness with the villagers and tribals who were in time to time fighting and demanding for their fundamental right as well as civil right. The learned Counsel has placed much emphasis on the point that even if the complete prosecution case is accepted, atleast offence under Section 121-A of the IPC is not made out. ( 5. ) ON the other hand, the learned Counsel for State Shri G. Desai submitted that at the stage of framing of charge, prosecution is required to establish prima facie case and on the basis of the complete charge-sheet, the learned Trial Court has rightly held that the applicants are liable for prosecution for the above mentioned offences. ( 6. ) HAVING heard the learned Counsel for parties and after perusing the entire charge-sheet and the documents filed by the applicants, this Court is of the opinion that prima facie offence under Section 121 or 121-A of the IPC are not made out against the applicants. The total evidence which has been collected and filed by the Investigating Agency is that the applicant Rahul Banerjee was instigating and exhorting the villagers as well as tribals for illegal cutting of trees, construction of their house encroaching upon the Government forest land and whenever authority is taking action against them they are making counter attack and assaulting the police as well as officials of other departments. Some pamphlets and literatures have been seized by the police that is also showing all these things. Some pamphlets and literatures have been seized by the police that is also showing all these things. Merely because the applicants or any citizen of the county is raising voice against the Government or Government policy or according to him he is fighting for his fundamental right and civil right would not be sufficient to say that individual person or group or group of society is waging war or attempt to wage war or abets waging of war against the Government of India. Sections 121 and 121-A of the IPC reads as under :121. Waging, or attempting to wage war, or abetting waging of war, against the Government of India.- Whoever, wages war against the Government of India, or attempts to wage war, or abets the waging of such war, shall be punished with death, or imprisonment for life and shall also be liable to fine. 121-A. Conspiracy to commit offences punishable by Section 121.- Whoever within or without India conspire to commit any of the offences punishable by Sections 121 or conspires to overawe, by means of criminal force or the show of criminal force, the Central Government or any State Government shall be punished with imprisonment for life, or with imprisonment of either description which may extend to ten years, and shall also be liable to fine. Explanation :- To constitute a conspiracy under this section, it is not necessary that any act or illegal omission shall make place in pursuance thereof. ( 7. ) IN view of the statements of the witnesses and the material available on record, there is no evidence on record that any applicants or even Rahul Banerjee had joined an insurrection against the Government of India. Recently the Supreme Court in the case of Nazir Khan v. State of Delhi, (2003) 8 SCC 461, after considering in detail the Indian Law Commissioners Second Report, has held in Paragraphs 34, 35 and 36 as under :34. The expression "waging war" means and can only mean waging war in the manner usual in war. In other words, in order to support a conviction on such a charge it is not enough to show that the persons charged have contrived to obtain possession of an armoury and have, when called upon to surrender it, used the rifles and ammunition so obtained against the Government troops. In other words, in order to support a conviction on such a charge it is not enough to show that the persons charged have contrived to obtain possession of an armoury and have, when called upon to surrender it, used the rifles and ammunition so obtained against the Government troops. It must also be shown that the seizure of the armoury was part and parcel of a planned operation and that their intention in resisting the troops of the Government was to overwhelm and defeat these troops and then to go on and crush any further opposition with which they might meet until either the leaders of the movement succeeded in obtaining the possession of the machinery of Government or until those in possession of it yielded to the demands of their leaders. 35. The word "wages" has the same meaning as "levying" used in the English statute. In Lord George Gorden case Lord Mansfield said : "there are two kinds of levying war : one against the person of the King; to imprison, to dethrone, or to kill him; or to make him change measures, or remove counsellors; the other, which is said to be levied against the majesty of the King, or, in other words, against him in his regal capacity; as when a multitude rises and assembles to attain by force and violence any object of a general public nature; that is levying war against the majesty of the Kind; and most reasonably so held, because it tends to dissolve all the bonds of society, to destroy property, and to overturn Government; and by force or arms, to restrain the King from reigning according to law". 36. An assembly armed and arrayed in a warlike manner for any treasonable purpose is helium levatum, though not helium percussum. Lifting and marching are sufficient overt acts without coming to a battle or action. "no amount of violence, however great, and with whatever circumstances of a warlike kind it may be attended, will make an attack by one subject on another high treason. On the other hand, any amount of violence, however insignificant, directed against the King will be high treason, and as soon as violence has any political objects, it is impossible to say that it is not directed against the King, in the sense of being armed opposition to the lawful exercise of his power. On the other hand, any amount of violence, however insignificant, directed against the King will be high treason, and as soon as violence has any political objects, it is impossible to say that it is not directed against the King, in the sense of being armed opposition to the lawful exercise of his power. Where the object of a mob is not mere resistance to a District Magistrate but the total subversion of the British power and the establishment of the Khilafat Government, a person forming part of it and taking part in its actions is guilty of waging war. When a multitude rises and assembles to attain by force and violence any object of a general public nature, it amounts to levying war against the Government. It is not the number of the force, but the purpose and intention, that constitute the offence and distinguish it from riot or any other rising for a private purpose. The law knows no distinction between principal and accessory, and all who take part in the treasonable at incur the same guilt. In rebellion cases it frequently happens that few are let into the real design, yet all rebellion. A deliberate and organized attack upon the Government forces would amount to waging a war if the object of the insurgents was by using armed force and violence to overcome the servants of the Government and thereby to prevent the general collection of the capitation tax". (See: Anug Hla case ). "there is a diversity between levying of war and committing of a great riot, a rout, or an unlawful assembly. For example, as if three, or four, or more, do rise to burn, or put down an enclosure in Dale, which the Lord of the Manor of Dale hath made there in the particular place; this or the like is a riot, a rout or an unlawful assembly, and no treason. But if they had risen of purpose to alter religion established within the realm, or laws, or to go from town to town generally, and to case down inclosures, this is a levying of war (though there be great number of the conspirators) within the purview of this statute, because the pretence is public and general, and not private and particular". ( 8. ( 8. ) IN view of the facts and circumstances as well as the material available in the charge-sheet and dicta of the Supreme Court, there is wide difference between levying of war and committing of a great riot, a rout or an unlawful assembly. In the case in hand, the allegation against the applicants including their leader Rahul Banerjee is that they were objecting the action of the Administration regarding seizure of illegally cut forest wooden logs, trees and encroachment of forest land for constructing hut and they had expressed their anguish by attacking on them by use of different weapons. Certainly this act would not fall within the purview of Section 121 or 121-A of the IPC. Therefore, in the considered view of this Court, no case is made out worth for framing charge for the offence under Section 121 or 121-A of IPC. Hence, the same are liable to be quashed. ( 9. ) AT the stage of framing of charge it is the duty of the Court to look into the matter whether on the basis of the material available on the record, the prima facie offence for proceeding against the accused is made out or not. The Supreme Court has considered this aspect in detail in the judgment of State of Karnataka v. L. Muniswamy and Ors. , AIR 1977 SC 1489 and held that: "for the purpose of determining whether there is sufficient ground for proceeding against an accused the Court possesses, comparatively wider discretion in the exercise of which it can determine the question whether the material on the record, if unrebutted, is such on the basis of which a conviction can be said reasonably to be possible". The Supreme Court has further said that: "a few bits here and a few bits there on which the prosecution proposes to rely arc woefully inadequate for connecting the respondents with the crime, howsoever skilfully one may attempt to weave those bits into a presentable whole. There is no material on the record on which any Tribunal could reasonably convict the respondents for any offence connected with the assault on the complainant". ( 10. ) MORE or less the same is the situation present in the case in hand. There is no material on the record on which any Tribunal could reasonably convict the respondents for any offence connected with the assault on the complainant". ( 10. ) MORE or less the same is the situation present in the case in hand. There is absolutely no evidence against the applicants on the basis of which it can reasonably be held that they were waging war against the State and also hatching conspiracy for the same. Again in the case of Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijja ( AIR 1990 SC 1962 ), the Supreme Court ruled that: "it seems well settled that at the Sections 227-228 stage, i. e. , stage of framing the charge, the Court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The Court may for this limited purpose sift the evidence as it can not be expected even at the initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case. " ( 11. ) IN the wake of aforesaid legal and factual critical discussions on the issue, this Court is of the opinion that the applicants are entitled for discharge from the charges of the offence punishable under Sections 121 and 121-A of the IPC. The rest part of the impugned order passed by the Trial Court framing charge for other offences is affirmed. ( 12. ) IN the result, the revision is partly allowed in the terms as indicated hereinabove. As a consequence thereof M. Cr. P. No. 3161/2003 also stands disposed of.