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2007 DIGILAW 274 (JHR)

Ibrahim Khan v. State of Bihar (Now Jharkhand)

2007-04-09

AMARESHWAR SAHAY

body2007
JUDGMENT Amareshwar Sahay, J.- This revision application arises against the Judgment dated 07.08.1998 passed by the 2nd Additional District & Sessions Judge, Dhanbad in Criminal Appeal No. 12/97 by which, the appeal preferred by the petitioner against the Judgment dated 21.12.1996 passed by the Trial Court convicting the petitioner for the offence under Section 15 of the Bihar Control of Crimes Act, 1981 and sentencing him to undergo rigorous imprisonment for three months was dismissed. 2. The prosecution case in short is that the District Magistrate, Dhanbad passed an order on 18.04.1984 under Section 16(2) of the Bihar Control of Crimes Act, 1981 against the petitioner which was confirmed by the State Government on 18.4.1989. In spite of issuance of processes under Section 82/83 of Criminal Procedure Code and also warrant of arrest, the petitioner could not be apprehended and the processes issued against him could not be executed as he was absconding from his place 'of abode and he was concealing himself at some unknown place. On 22.08.1984, a Notification was also issued directing the petitioner to appear before the Court of District Magistrate, Dhanbad but he did not appear. 3. In order to establish its case, the prosecution examined only two witnesses namely Subir Kumar Mukherjee and Shashidhar Rajak. 4. On the basis of the evidence adduced by the prosecution, the learned Trial Court convicted and sentenced the petitioner as already noticed above. 5. From the appellate Judgment, it appears that the appellate Court dismissed the appeal taking into account the statement of the accused made under Section 313 Cr.P.C., the accused in answer to the questions put to him wherein he answered in negative and therefore it conclusively proved that the accused had admitted that he was having knowledge of publication of the order of the District Magistrate dated 16.08.1984 in the Gazette and in spite of that he did not appear in the Court at Dhanbad. 6. P.W. 1 Subir Kumar Mukherjee who was posted as Steno- Typist in the office of the District Magistrate has proved the prosecution report identifying the signature of the District Magistrate, Dhanbad on the said report. 6. P.W. 1 Subir Kumar Mukherjee who was posted as Steno- Typist in the office of the District Magistrate has proved the prosecution report identifying the signature of the District Magistrate, Dhanbad on the said report. P.W. 2 Shashidhar Rajak was posted in confidential section of the office of the D.M. Dhanbad, has identified the typing of Brajesh Kumar and the signature of Shri Ashok Kumar, the then District Magistrate, Dhanbad on the forwarding letter sent for the institution of the case. The forwarding letter has been marked as Ext. 5. This witness has stated that in spite of detention order passed by the District Magistrate and subsequently confirmed by the State Government in its Gazette, the petitioner did not appear, hence, the case was filed against him. 7. From the materials on record, it appears that neither the detention order of the District Magistrate nor the order of confirmation of the State Government was brought on record by the prosecution. Even the service report of the processes under Section 82/83 Cr.P.C. were brought on record so as to come to the conclusion that actually the processes• under Section 82/83 were issued against the petitioner. 8. In my view, the learned appellate court has erred in drawing inference against the petitioner on the basis of his reply to the questions put by the Court while recording the statements of the accused under Section 313 Cr.P.C. Such inference drawn by the appellate Court in absence of any other evidence on the record to establish the charge against the petitioner was not legally valid. 9. In this view of the matter, I find that the prosecution has miserably failed to establish its case against the petitioner beyond all reasonable doubts and therefore, the impugned Judgment of conviction and sentence passed by the Trial Court and affirmed by the lower appellate Court cannot be sustained. Consequently, this revision application is allowed. The impugned Judgment passed by the Trial Court as well as by the appellate Court convicting and sentencing the petitioner are hereby set aside. The petitioner who• is on bail is discharged from the liability of his bail bond.