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2004 DIGILAW 761 (JHR)

Shibu Soren v. State of Jharkhand

2004-07-29

P.K.BALASUBRAMANYAN, SUDHANSU JYOTI MUKHOPADHAYA

body2004
Judgment P.K. Balasubramanyan, CJ.- In this writ petition filed under Articles 226 and 227 of the Constitution of India, various prayers are made on behalf of the petitioner. Actually, they are six in number. One of the prayers was for quashing the entire criminal proceedings in connection with Narayanpur P.S. case no. 6 of 1975 corresponding 'to G.R. No. 30 of 1975 in view of the decision allegedly taken by the Government of Jharkhand to withdraw all cases in relation to or arising out of the alleged movement for creation of a separate State of Jharkhand. Since it was felt that the grant or refusal of that prayer made, involved public interest and consequently the matter might be one which would come under Rule 34 of the High Court of Jharkhand Rules, 2001 that all writ petitions relating to public interest should be heard by a Division Bench, it was decided to withdraw the case to a Division Bench, after the Judge to whom the case was originally assigned as per the roster could not hear the case for the reason that while being a Magistrate, he had recorded a dying declaration in relation to the crime. While constituting the Bench, Rule 35(2) of the Rules was also kept in mind and the Judge in administration of the Zone was included in the Division Bench. Since as per the, dispensation in this Court for the last more than one year, public interest litigations were being heard by the Bench presided over by the Chief Justice, the Chief Justice and the Judge looking after the administration of the Zone constituted the Division Bench. 2. Though as noticed, the writ petition contains various prayers, Mr. R.K. Jain, Senior Counsel instructed by Mr. R.S. Majumdar appearing for the writ petitioner submitted before us at the hearing, that he was not pursuing any of the prayers in the writ petition other than the prayer containing a challenge to what he called the issue of a warrant for arrest by the Sub Divisional Judicial Magistrate, Jamtara on 17.7.2004. Hence, it was become unnecessary for us to deal with the other aspects raised and the prayers made in the writ petition. We are concerned only with the prayer relating to the order dated 17.7.2004 passed by the Sub Divisional Judicial Magistrate, Jamtara. 3. The matter was rather elaborately argued before us by Mr. Hence, it was become unnecessary for us to deal with the other aspects raised and the prayers made in the writ petition. We are concerned only with the prayer relating to the order dated 17.7.2004 passed by the Sub Divisional Judicial Magistrate, Jamtara. 3. The matter was rather elaborately argued before us by Mr. Jain and by the learned Advocate General instructed by Government Counsel on behalf of the State. 4. The short facts gatherable from the writ petition, the order sheet made available to us and the submissions at the Bar are these. 5. Narayanpur P.S case no. 7 (1) of 1975 was in relation to the alleged murder of ten persons in the villages Chirudih and Muchiadih. There were 69 accused in the case. After investigation, the Police filed charge sheets against 69 accused persons in the court on 8.2.1980 for offences under sections 302/438/148 and 149 of the Indian Penal Code. Cognizance of the offence was taken on 8.2.1980 by the Additional Chief Judicial Magistrate, Jamtara. Most of the accused had been enlarged on bail by that time. The case was transferred to the court of the Sub Divisional Judicial Magistrate, Jamtara for further steps. The petitioner herein, it seems, was arrayed as an accused, based on a dying declaration duly recorded by the then Judicial Magistrate, Jamtara on 7.2.1975. Confessional statements of two of the accused were also recorded under section 164 of the Code of Criminal Procedure. On 18.12.1975, the Chief Judicial Magistrate, Dhanbad, entertained an application for bail by tile petitioner and by his order dated 18.12.1975 granted him provisional bail with the direction that he must surrender in the court of the Sub Divisional Judicial Magistrate, Jamtara by 30.1.1976. The petitioner furnished the bail bond on 19.12.1975 with an undertaking to comply with the direction. But the petitioner did not surrender in the court of the Sub Divisional Judicial Magistrate, Jamtara till 6.3.1976. On the requisition by the Police, the Sub Divisional Judicial Magistrate, Jamtara passed an order on 2.2.1979 issuing a warrant for arrest against the petitioner. The petitioner surrendered in the court of the Sub Divisional Judicial Magistrate, Jamtara on 4.5.1979 and filed a petition for bail. Bail was granted to him on the conditions set out in that order. He was released on furnishing the requisite bond. The petitioner surrendered in the court of the Sub Divisional Judicial Magistrate, Jamtara on 4.5.1979 and filed a petition for bail. Bail was granted to him on the conditions set out in that order. He was released on furnishing the requisite bond. By order dated 2.6.1986, all the accused were directed to appear in the Court of the Sub Divisional., Judicial Magistrate, Jamtara. Since none of the accused, including the petitioner, appeared in the court on the date fixed, their bail bonds were cancelled and an order was passed for the issuance of warrants of arrest against them. By subsequent order dated 20.6.1986, the office was directed to comply with the order of the court dated 5.6.1986, On 3.7.1986, three of the accused persons, surrendered and they were granted bail. A petition filed on behalf of the petitioner for permitting him to appear another day was allowed on condition that he would appear on 6.9.1986. On 6.9.1986, the petitioner did not surrender or appear. The Sub Divisional Judicial Magistrate, Jamtara finding that it was a case to be committed under section 209 of the Code of Criminal Procedure proceeded to commit the case to the court of sessions in the presence of 59 of the accused. As regards 10 accused including the petitioner, the case was ordered to be split up by order dated 6.9.1986. After commitment, the case records were sent to the court of sessions, Dumka and the case was registered there as Sessions Case No. 414 of 1986. 6. For reasons not clear, the case remained pending in the sessions' court, Dumka. The State of Jharkhand was created on 15.9.2000. A separate judgeship at Jamtara was created upon its separation from the Santhal Parganas. The records of Sessions Case No. 414 of 1986 were transferred to the Sessions Judge at Jamtara and the case was registered as Sessions Case No. 107 of 2001. The records were then transferred to the Court of Additional Sessions Judge-1 and again to the court of the IVth. Additional Sessions Judge, Fast Track Court, Jamtara and re-numbered as Sessions Case No. 17 of 2002. 7. The records were then transferred to the Court of Additional Sessions Judge-1 and again to the court of the IVth. Additional Sessions Judge, Fast Track Court, Jamtara and re-numbered as Sessions Case No. 17 of 2002. 7. Finding that criminal cases are lingering indefinitely in various courts, in the newly created State of Jharkhand, probably as a hangover of the past, this Court, in the last fifteen months, had issued directions to the various Sessions Courts to ensure that old cases gathering dust in the record rooms are taken up, tried and disposed of expeditiously. Probably, based on the said direction, the present case, which was originally registered as Narayanpur P.S. case No. 7(1) of 1975 and after committal finally renumbered as Sessions Case No. 17 of 2002 was unearthed and proceeded with. On 21.2.2003, finding that the accused were not appearing, an order was passed by the Additional Sessions Judge, for the issuance of warrants for arrest against the absent accused. Once such a warrant was issued against the petitioner to the out-station. The warrant was not served due to undue delay and inaction in the office of the court. But on 15.9.2003, a petition was filed on behalf of the petitioner herein before the Additional Sessions Court contending that the Additional Sessions Judge had no jurisdiction to issue the warrant or to proceed with the case against the petitioner, as his case was not committed and pointing out that the case of the petitioner had been separated by an order of the Sub Divisional Judicial• Magistrate, Jamtara dated 6.9.1986. The prayer based on that was to recall the warrant for arrest against the petitioner. Without properly comprehending the scope of a committal of a case under section 209 of the Code of Criminal Procedure, the Additional Sessions Judge, on 15.9.2003 itself recalled his order issuing a warrant to the petitioner. The court accepted the plea on behalf of the petitioner that that court was not in seisin of the case and the case was still in the court of the Sub Divisional Judicial Magistrate. Thereafter, the Prosecutor made an application before the Sub Divisional Judicial Magistrate, Jamtara praying to make available the split up records of Narayanpur P.S. case No. 7(1) of 1975 whereby the case of the petitioner and nine other accused was separated, for taking up the question of committal. Thereafter, the Prosecutor made an application before the Sub Divisional Judicial Magistrate, Jamtara praying to make available the split up records of Narayanpur P.S. case No. 7(1) of 1975 whereby the case of the petitioner and nine other accused was separated, for taking up the question of committal. The Magistrate called for the records and it was reported that the records were not available. The Magistrate thereupon requested the Judge in charge of administration to make available certified copies of the relevant documents so as to enable the Magistrate to re-construct the split up records. Thereafter, the Magistrate finding that as early as 6.9.1986, a warrant for arrest had been issued against the petitioner, but the same had not been executed by the office of the court, directed the court to take the needed steps pursuant to the order issuing warrant for arrest on 6.9.1986. The Magistrate proceeded on the basis that what had been issued on 6.9.1986 against the petitioner was a non-bailable warrant for arrest. It is this order or direction by the Magistrate that is challenged by Mr. Jain on behalf of the petitioner. 8. Mr. Jain contended that once the court had committed the case under section 209 of the Code of Criminal Procedure to the sessions court, the Magistrate had become functus officio and had lost the jurisdiction over the case. Mr. Jain relied on the decision of the Supreme Court in Joginder Singh vs. The State of Punjab (1979 Cr. Law Journal 333). Mr. Jain contended that after the introduction of section 209 of the Code in its present form, what is committed to the court of sessions is the case and not the accused, even though the position was different under the relevant provisions of the Code of Criminal Procedure, 1898. Therefore, Mr. Jain contended that once the case was committed by the Magistrate, he lost his jurisdiction even though he had erroneously sought to split up the case of 10 accused including the petitioner when he made the committal. He submitted that the absence of the 10 accused on the date of the committal made no difference, and when the committal was made in the presence of 59 of the' 69 accused, there was a committal of the whole case to the Court of Sessions and thereafter it is only the court of sessions that can exercise jurisdiction. He submitted that the absence of the 10 accused on the date of the committal made no difference, and when the committal was made in the presence of 59 of the' 69 accused, there was a committal of the whole case to the Court of Sessions and thereafter it is only the court of sessions that can exercise jurisdiction. The learned Advocate General, in answer, sought to contend that nothing prevented the Magistrate from subsequently committing the case relating to the 10 accused including the petitioner, even though, earlier, he might have committed the case in respect of 59 of the accused. He relied on the decision of the Full Bench of the Kerala High Court in Kesavan vs. Madhavan (1984 Cr. Law Journal 324) to contend that there can be a subsequent committal of the case to the court of sessions inspite of an earlier order of committal. He also relied on the decision of the Patna High Court in Ram Deo Roy vs. Ram Dhyan Roy [ 1992(2) BLJ 47 ] and the decision of the Allahabad High Court in Haji Shafi vs. State of U.P. (2001 Cr. Law Journal 330) to contend that a committal could be made only in the presence of the accused and that the presence of the accused is a must in terms of section 209 of the Code. He, therefore, submitted that since the petitioner was not present in court in spite of the undertaking that he would appear and in spite of the grant of time thrice for his appearance after the order issuing the warrant for arrest, his case could not be committed and in that context, the Magistrate continued to have the jurisdiction to pass the order impugned in this writ petition. But in the light of the decision of the Supreme Court relied on by Mr. Jain and on a close reading of the decision of the Full Bench of the Kerala High Court brought to our notice by the learned Advocate General, we are of the view that on the case being committed to the Court of Sessions by the Magistrate on 6.9.1986, the case stood committed to the Court of Sessions and the Court of Sessions was vested with the jurisdiction to proceed further. This was what the Court of Sessions tried to do. The present situation was brought about by the petitioner himself. This was what the Court of Sessions tried to do. The present situation was brought about by the petitioner himself. When the Court of Sessions issued a warrant to secure the presence of the petitioner, who was an accused in the case, the petitioner filed a petition in the Court of Sessions submitting that, that court had no jurisdiction to proceed further, since the case relating to him had not been committed to the Court of Sessions when the order of committal was made in respect of 59 of the accused. At that stage, counsel for the petitioner chose not to explain the correct legal position in the light of-the decision of the Supreme Court now expounded by Mr. Jain, Senior Counsel. We think it proper to remark here that an Advocate, even if he is appearing for an accused, is still an officer of court and it is his duty to bring to the notice of the court the correct position in law based on the decision of the Supreme Court. Thus, the petitioner induced the Court of Sessions to take the view that it had no jurisdiction to proceed as against the petitioner. Obviously, a case had been charged and it had to come to a logical termination in a mode known to law. This left the Prosecutor with no option, though he could have easily brought to the notice of the Session's Court, with a little effort, the decision of the Supreme Court and the correct position in law but to move the Magistrate's court for an appropriate order for securing the presence of the petitioner, an accused in the case. The Magistrate, thereupon, on an investigation found that there was an outstanding warrant pending against the petitioner because of his failure to appear in spite of three opportunities being given, and that the warrant remained un-enforced or unexecuted due to want of action by his office. The Magistrate thereupon ordered that the warrant issued by his predecessor on 5.6.1986 be enforced. 9. We find that in the light of the decision of the Supreme Court referred to above, the Magistrate may have no jurisdiction to issue a• fresh warrant for the arrest of the petitioner since the case' has been committed to the court of sessions and the jurisdiction would be with the court of sessions. 9. We find that in the light of the decision of the Supreme Court referred to above, the Magistrate may have no jurisdiction to issue a• fresh warrant for the arrest of the petitioner since the case' has been committed to the court of sessions and the jurisdiction would be with the court of sessions. But what we find here is that the Magistrate has not issued any fresh warrant, but has only directed that the order issued before the committal by his predecessor, be implemented. As we have noticed, this situation was brought about by the stand adopted by the petitioner by not appearing in court and by trying to question the jurisdiction of the Sessions Court when that court tried to secure his presence so as to proceed with the trail of the old case. Therefore, the challenge to the present order by the Magistrate comes with ill grace from the petitioner. 10. Before us, Mr. Jain, Senior Counsel, submitted that the petitioner was willing to surrender before the 'Additional Sessions Court where the case was pending and that all that was prayed for was to keep the order of the Magistrate in abeyance until the petitioner has an opportunity to surrender and seek appropriate orders from the Court of Sessions. In the light of the position emerging on the basis of the decision of the Supreme Court interpreting Section 209 of the Code of Criminal Procedure, we think that this prayer of Mr. Jain can be accepted. In the light of this submission, it also appears to be unnecessary to go into the question whether the Magistrate had the jurisdiction to enforce the earlier warrant issued at this stage or not. But we see no merit in the contention of Mr. Jain that the present development was motivated by political considerations. Anyway, we find that it is only the kettle calling the pot black, if we go by the submissions of the Advocate General in that behalf. We find that the steps taken by the Court of Sessions and the Court of the Magistrate were only with a view to proceed with an old case pending before them--as we have noticed, the situation, to a great extent, was created by the petitioner himself by trying to question the jurisdiction of the Court of Sessions,--by taking steps to secure his presence before that court. But having considered all the relevant aspects, we feel that it would be sufficient for the purpose of this case to direct the petitioner on the basis of the submission made by his counsel, Mr. Jain, to appear before the IVth Additional Sessions Judge and seek appropriate orders from that court and pending his appearance in the Court of Sessions to keep in abeyance the enforcement of the order passed by the Magistrate on 17.7.2004 based on the warrant issued by his predecessor on 5.6.1986. We, therefore, direct the petitioner to appear before the court of the IVth Additional Sessions Judge, Fast Track Court at Jamtara on or before 2.8.2004 with liberty to seek other appropriate orders from that court. But in case, the petitioner fails to appear before the Additional Sessions Judge, Fast Track Court at Jamtara wherein Sessions Case No. 17 of 2002 is pending, that Court of Sessions will take steps to secure the presence of all the accused, including the petitioner, and proceed further in accordance with law. So as to facilitate the proper continuance of the proceedings before the concerned Court of Sessions, we, in exercise of our jurisdiction under Article 227 of the Constitution of India and based on the arguments of Mr. Jain, set aside the order of the Court of Sessions dated 15.9.2003 implying that it has no jurisdiction to deal with the case as regards ten of the accused who failed to appear before the Magistrate when the committal of the case was made. Following the decision of the Supreme Court referred to above, we direct that court to proceed with Sessions Case No. 17 of 2002 as against all the accused treating the committal as valid as against all the accused. At this distance of time, we think it proper to overlook the irregularity in committing the case and direct that the case against all the accused be treated as having been committed. The writ petition is disposed of.