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2006 DIGILAW 57 (PAT)

Lal Kishun Yadav v. State Of Bihar

2006-01-17

REKHA KUMARI

body2006
Judgment 1. This is an application under Section 482 of the Code of Criminal Procedure (hereinafter referred to as the Code) for quashing the order dated 5.9.2001 passed by the 2nd Additional Sessions Judge, Hilsa, Nalanda in Sessions Trial Nos. 472 of 1992 and 286 of 1991 by which he discharged all the accused persons (opposite party Nos. 2 to 16) of Sessions Trial No. 472 of 1992 under Section 227 of the Code and has ordered to frame charge under the provisions of Section 228 of the Code against the petitioners in Sessions Trial No. 286 of 1991 arising out of Islampur P.S. Case No. 26/86. 2. Heard both sides. 3. It appears that petitioner No. 1 Shailendra Kumar Son of Ramehwar Singh had filed a complaint dated 14.2.1986 against opposite party Nos. 2 to 16 and one Ramdeo Singh (since dead) for committing dacoity in the night of 9.2.1986 in the house of the complainant at Village Chakdaulat, P.S. Islampur, District Nalanda, in course of which opposite party Raj Kumar Singh is said to have fired on one Rajeshwar Prasad who received serious injury and was hospitalised. After filing of the complaint, the complainant was examined on solemn affirmation and then seven witnesses including the injured Rajeshwar Prasad were examined in enquiry under Section 202 of the Code. As the witnesses supported the prosecution case, the processes were issued against them for facing trial under Section 395 of the Indian Penal Code. Ultimately, the case was committed to the Court of Sessions and was numbered as Sessions Trial No. 472 of 1992. 4. It further appears that on 10.2.1986 opposite party Vijay Kumar lodged a first information report (Islampur P.S. Case No. 26/86) against unknown for the dacoity said to have been committed on the same night i.e. in the night between 9.2.1986 and 10.2.1986 in his house and in the adjacent house which is of his brother-in-law opposite party Raj Kumar Yadav both situated in village Chakdaulat. After investigation the police submitted charge-sheet against the petitioners under Section 395 of the Indian Penal Code. This case was also committed to the Court of Sessions and was numbered as Sessions Trial No. 286 of 1991. In both the cases petition was filed for discharge of the accused persons under the provisions of Section 227 of the Code. After investigation the police submitted charge-sheet against the petitioners under Section 395 of the Indian Penal Code. This case was also committed to the Court of Sessions and was numbered as Sessions Trial No. 286 of 1991. In both the cases petition was filed for discharge of the accused persons under the provisions of Section 227 of the Code. The learned Additional Sessions Judge in whose Court both the cases were pending heard both sides and by the same order discharged all the accused persons of Sessions Trial No. 472 of 1992 and ordered to frame charge in Sessions Trial No. 286 of 1991. 5. Learned counsel for the petitioners submitted that the complainant (petitioner Shailendra Kumar) in his statement on solemn affirmation and the witnesses examined under Section 202 of the Code in Sessions Trial No. 472 of 1992 have fully supported the complaint and stated that opposite party Nos. 2 to 16 committed dacoity in the house of Shailendra Kumar and in course of that dacoity opposite party Raj Kumar Singh also fired causing serious injury to Rajeshwar Singh but the learned Additional Sessions Judge without considering the evidence, on filmsy grounds discharged the Opposite Party Nos. 2 to 16. He further submitted that the learned Additional Sessions Judge has also mentioned in his order that during the course of investigation of Islampur P.S. Case No. 26/86 information regarding the dacoity alleged to have been committed in the house of Shailendra Kumar was also given but the I.O. found the FIR lodged by Vijay Kumar true whereas paragraphs 18, 19, 20. (complainant). 21 and 36 of the case diary would show that there was a dacoity in the house of the petitioner Shailendra Kumar in which the Opposite Parties were identified and paragraph 29 of the case diary would show that some stolen articles recovered from the house of Rameshwar Singh i.e., father of the complainant were handed over to the police. Therefore, there is sufficient material in the case diary also against the Opposite Parties. He also submitted that the learned Additional Sessions Judge has also considered the delay in filing the complaint, when this delay is explained therein. So, there was no sufficient ground to discharge the opposite parties in Sessions Trial No. 472 of 1992 for committing dacoity in the house of the complainant (petitioner Shailendra Kumar). 6. He also submitted that the learned Additional Sessions Judge has also considered the delay in filing the complaint, when this delay is explained therein. So, there was no sufficient ground to discharge the opposite parties in Sessions Trial No. 472 of 1992 for committing dacoity in the house of the complainant (petitioner Shailendra Kumar). 6. It was also submitted by the learned counsel that the petitioners were not named in the FIR but on account of land dispute between the parties, they have been wrongly roped in by bringing the police in collusion and as such the petitioners should have been discharged in Sessions Trial No. 286 of 1991. 7. Learned counsel for the opposite parties supported the order. 8. As provided under Section 227 of the Code a Sessions Judge can discharge the accused after considering the record of the case and the documents submitted therewith and after hearing the submissions of the accused and the prosecution, he considers that there is no sufficient ground for proceeding against the accused i.e.. either there is no legal evidence or the facts do not make out any offence at all. It is also settled that at this stage, the Court is not to judge meticulously the evidence proposed to be adduced by the prosecution and not to see whether there is sufficient ground for conviction nor any weight is to be attached to the probable defence. 9. It appears that the learned Sessions Judge has mentioned that he has gone through the evidence, but he has actually not gone through it. Again though in his order the learned Judge has tried to show that the I.O. during investigation of the above police case did not consider the case of the complainant true, the learned Sessions Judge was not required to consider the materials as mentioned in the case diary. Besides this the above submissions of the learned counsel on this point also negatives the finding of the learned Additional Sessions Judge. Again, though the learned Additional Sessions Judge has considered the delay of five days in filing the complaint, as already mentioned at this stage, the evidence has not to be judged meticulously and see whether there is sufficient ground for conviction. So, the delay is of no consequence at this stage. 10. Again, though the learned Additional Sessions Judge has considered the delay of five days in filing the complaint, as already mentioned at this stage, the evidence has not to be judged meticulously and see whether there is sufficient ground for conviction. So, the delay is of no consequence at this stage. 10. Thus, it appears that the learned Sessions Judge, in fact has not considered the evidence and the statement of the complainant on S.A. and the evidence of the witnesses examined in enquiry and has taken into consideration the materials which ought not to have been considered at this stage, in discharging the opposite party Nos. 2 to 16. Therefore, the impugned order insofar as it relates to the discharge of opposite party Nos. 2 to 16 cannot be sustained. 11. As regards the order to frame charge in Sessions Trial No. 286 of 1991. though the FIR is against unknown, as during investigation the I.O. has found sufficient material against the petitioners and submitted charge-sheet against them and the learned Additional Sessions Judge after perusing the materials in the case diary has found sufficient ground for proceeding against them, I do not find any infirmity in this part of the impugned order. So far the submission of the learned Counsel that the petitioners have been falsely implicated out of enmity, the Court at this stage cannot consider the defence of the accused. So, this is no ground to set aside the order to frame charge against the petitioners. 12. In the result, this application is allowed in part. The order of discharge of Opposite Party Nos. 2 to 16 in Sessions Trial No. 472 of 1992 is set aside. The other part of the order which relates to the order to frame charge against the petitioners is not interfered with. The learned Additional Sessions Judge or the Court in seisin of the case is directed to pass a fresh order after considering the materials on record as envisaged under Sections 227 and 228 of the Code in accordance with law.