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2005 DIGILAW 158 (JHR)

Lalmani Devi v. State Of Jharkhand

2005-02-17

HARI SHANKAR PRASAD

body2005
ORDER Hari Shankar Prasad, J. 1. Both the cases (Cr. Rev. No. 341/2003 and Cr. M.P. No. 1072/2003) are being disposed of by this common order because in both the cases, common questions of law and facts are involved. 2. The Cr MP No. 1072 of 2003 has been filed under Section 482 of the Code of Criminal Procedure for quashing the order dated 11.7.2003 passed by the learned Additional District Judge, Fast Track Court No. 1, Hazaribagh in Sessions Trial No. 150 of 2002 whereby and whereunder the learned Court below closed the evidence of the prosecution ignoring the facts that Cr, Revision No. 341 of 2003 is pending before the High Court, whereas Cr. Revision No. 341 of 2003 has been filed under Section 397 and 401 of the Code of Criminal Procedure for quashing the order dated 25.7.2002 passed in S.T. No. 150 of 2002 whereby and where under the learned 5th Additional Sessions Judge, Hazaribagh rejected the petition dated 19.7.2002 filed by the lawyer of the petitioner under Section 319 of the Code of Criminal Procedure for summoning the opposite parties No. 2 and 3 to face trial as their names appear in the evidence adduced by the learned Court below. 3. Facts leading to the filing of both the petitions are that petitioner- revisionist Lalmani Devi had filed a case being Giddi P.S. Case No. 66 of 1993 under Section 302/201/34 of the Indian Penal Code, (IPC) against Jaipal Bedia, O.P. No. 4 in Cr. M.P. No. 1072 of 2003 and others. Thereafter investigation was taken up and after investigation the I.O. submitted charge sheet in the case under Sections 302/201, IPC against Jaipal Bedia. It is further stated that during trial of the case in Sessions Trial No. 150 of 2002 before the learned 5th Additional Sessions Judge, Hazaribagh, prosecution witness No. 1 and 2 namely Suresh Bedia and Rupan Bedia deposed before the learned Court below and these witnesses very categorically stated that on the last day i.e. 28.9.1993 when the deceased was seen, they had seen him with the opposite party No. 2 and 3 at about 8.00 p.m. and 10.00 p.m. respectively. PW 1 Suresh Bedia has even stated that he asked Lal Mohan Bedia, the deceased to come along with him, but the opposite party No. 2 and 3 told him that they will drop him. PW 1 Suresh Bedia has even stated that he asked Lal Mohan Bedia, the deceased to come along with him, but the opposite party No. 2 and 3 told him that they will drop him. He further stated that he moved towards office of M.C.C. where he saw Jaipal Bedia also and all of them were telling deceased to deposit the amount of donation money in the office of M.C.C. Further, PW2, has stated that he finally saw the deceased going on his Bullet motorcycle along with O.P. No. 2 and 3. It is further stated that keeping in mind the above mentioned facts, the informant filed application before the learned Court below under Section 391 of the Code of Criminal Procedure for summoning the opposite party No. 2 and 3 and the learned Court below rejected the application of the informant on 25.7.2002 and when the petitioner-informant filed a Cr. Revision No. 341 of 2003 against the aforesaid order dated 25.7.2002, which is pending in the High Court, the learned Court below ignoring this fact closed the case and, therefore, the quashing application has been filed for quashing the order 11.7.2003. 4. The learned counsel appearing for the petitioner submitted that charge sheet in the case was submitted against Jaipal Bedia and he was on bail and, therefore, the Court was not in hurry to dispose of the case when the criminal revision No. 341 of 2002 for setting aside the order rejecting the prayer to summon the witnesses i.e. O.P. No. 2 and 3, was pending. It was further submitted that the learned Court below should have considered that in the interest of justice and for just decision of the case, it should have waited for the decision of the High Court. It was also pointed out that the court should have considered that when some persons are required for their prosecution in the case and when no prejudice was going to be caused to the accused persons against whom charge sheet had been submitted, then in that case great prejudice will be caused to the petitioner. It is also submitted that the order of the learned Court below is bad in law. 5. It is also submitted that the order of the learned Court below is bad in law. 5. In course of submissions, the learned counsel for the petitioner further submitted that some witnesses have deposed that in the trial against the O.P. No. 2 and 3 and from the evidence, it is clear that they should be summoned to face trial in the case. It is further submitted that the grounds taken in the counter-affidavit that a private lawyer has got no locus standi to file a petition for summonging the witnesses under Section 319, Cr PC is not justified because the petitioner being the complainant is an aggrieved party and she has got every right to file such petition. Further, the Court has not to see what will happen at the end of the trial and whether it will end in acquittal or conviction and the Court has not to see that point; rather when both the witnesses have seen O.P. No. 2 and 3, going with the deceased, these two persons should have been summoned to face trial in the case. 6. Learned counsel for the petitioner pointed out that when some evidence about involvement of a person comes in the evidence of witnesses at the trial stage, then the court has power to summon such persons to face trial if prima facie case is made out against them, as at that stage detailed examination of the witnesses is not necessary. Learned counsel further submits that the evidence is not to be scrutinized to find out whether prosecution has been able to prove charges against the accused or not. In this connection, learned counsel placed reliance upon 2001 (1) East Cr Cases 560 (Pat) and drew my attention to Para-6 of the judgment which is quoted herein-below : 6. From the aforesaid it would appear that the learned Sessions Judge was pleased to set aside the order passed by the learned Magistrate summoning opposite party Nos. 2 to Y6 on the ground that the witnesses has not made it clear as to what role these persons had played in creating a forged document. It may be mentioned here that at this stage only prima facie case has to be found out and it does not call for a detailed examination of the allegation made against the accused-persons individually and the evidence in support thereof. It may be mentioned here that at this stage only prima facie case has to be found out and it does not call for a detailed examination of the allegation made against the accused-persons individually and the evidence in support thereof. At this stage, the evidence is not to be scrutinized to find out whether the prosecution has been able to prove the charges against the accused or not. That stage will come in the course of the trial of the accused. At present, it has only to be found out whether a prima facie case against all the accused-persons has been made out or not. So far as the allegations against the Opposite Party Nos. 2 to 6 are concerned, they are said to have conspired with Satya Deo Prasad in forging certain documents. The offence of criminal conspiracy has been defined under Section 120-A of the Indian Penal Code. It lays down that when two or more persons agreed to do or caused to be done an illegal act, or an act, which is not illegal by illegal means such an agreement is designated as a criminal conspiracy. According to Proviso of Section 120-A, no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act, besides the agreement is done by one or more parties to such agreement in pursuance thereof. As per the explanation to this section it is immaterial whether the illegal act, is the ultimate object of such agreement, or is merely incidental to that object." 7. The next plea of the learned counsel for the petitioner was that the PW 1 and PW 2 have deposed to that extent and even if nobody has seen committing murder of the deceased, it will not mean that hands of this petitioner may not be there because at the stage of trial only, this fact may be considered whether this is a case of last seen with the deceased and whether there is any hand of the O.P. No. 2 and 3 or not. In this connection, reliance has been placed upon AIR 1979 Supreme Court 1942. In this connection, reliance has been placed upon AIR 1979 Supreme Court 1942. In the instant case, two persons were seen last in the company of the deceased and both of them were put on trial, but one of them was acquitted and the other was convicted and the State did not prefer appeal against the judgment of acquittal of one of the two last seen accused persons, hence it was held that both of them were seen last in the company of the deceased and acquittal of one of them will mean that the deceased to be an incriminating character and other accused also cannot be convicted on that very basis. The points stressed by the learned counsel for the petitioner that since both O.P. No. 2 and 3 were last seen with the deceased, so there is circumstantial evidence against them and it is circumstance of incriminating character, The another point that was taken by the learned counsel for the petitioner is that O.P. No, 2 and 3 were not accused persons and under Section 319, Cr. P.C., they can be summoned if their involvement in the case comes into light in course of trial and, therefore, summoning will be justified because these two persons i.e. O.P. No. 2 and 3 have not been charge sheeted and a plea cannot be taken that they were in the category of the accused persons and since police has not submitted charge sheet, they can be summoned under Section 319, Cr PC. In this connection, reliance was placed upon AIR 1979 SC 339 . 8. On the other hand, learned counsel for the O.P. No. 2, and 3 submits that there is no iota of evidence against O.P. No. 2 and 3 and summoning of them will be an abuse of the process of the Court because whatever evidence PWs 1 and 2 have given that does not implicate the petitioner in any way. 8. On the other hand, learned counsel for the O.P. No. 2, and 3 submits that there is no iota of evidence against O.P. No. 2 and 3 and summoning of them will be an abuse of the process of the Court because whatever evidence PWs 1 and 2 have given that does not implicate the petitioner in any way. It is settled principle of law and there are several decisions on this point of the Apex Court that if the evidence is in toto or material against O.P. No. 2 and 3 is accepted in toto without even cross-examination, still there is no chance of conviction and if it is found that there will be no conviction, then in such case cognizance taken should be quashed and at the same time this principle will be available to the O.P. No. 2 and 3 because even if that evidence of PW 1 and PW2, is accepted, no conviction will lie, so summoning of these two persons will be an abuse of the process of the Court. In this connection, reliance was placed upon AIR 1996 Supreme Court 1931. 9. Learned counsel further submits that a private lawyer had no locus standi to file a petition and, therefore, on the basis of this petition also, this application under Section 319 Cr PC is not maintainable. The application should have been moved through Additional Public Prosecutor or Public Prosecutor as laid down under Section 301 Cr PC. It is also pointed out that this revision is also not maintainable in view of the fact that complainant-informant is not the petitioner in the revision application. 10. Learned counsel further submitted that when the learned Court below refused to summon the witnesses under Section 319 Cr PC as there being no material against them, in that circumstance, the High Court should not interfere and allow the petition. In this connection, learned counsel placed reliance upon 2004 (3) East Cr Cases 291 (SC). 11. After going through the rival contention of the parties and after going through the materials on record, case laws cited on behalf of the parties, I do not find any material either to interfere with the order dated 11.7.2003 against which Cr. M.P. No. 1072 of 2003 has been filed against the order of closure of the case and order dated 25.7.2002 against which the Cr. M.P. No. 1072 of 2003 has been filed against the order of closure of the case and order dated 25.7.2002 against which the Cr. Revision No. 341 of 2003 has been preferred against the refusal of the Court to summon O.P. No. 2 and 3 on a petition filed under Section 319 Cr PC. 12. In the result, there being no merit in both the cases, which are accordingly dismissed. However, in the circumstances, no order as to costs.