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2011 DIGILAW 1904 (RAJ)

Hardeep Singh v. State of Rajasthan

2011-09-05

R.S.CHAUHAN

body2011
Hon'ble CHAUHAN, J.—The petitioners are aggrieved by the order dated 29.4.2009, passed by the Additional Sessions Judge, Sangaria, whereby the learned Judge has framed the charges for offences under Sections 307 IPC, and alternative under Section 307 read with Section 34 IPC. 2. The brief facts of the case are that on an oral statement given by Jagdish Chand, respondent No.2, the SHO Police Station, Sangaria, registered a case for offences under Sections 323, 447 and 379 IPC. During the course of investigation, an offence under Section 307 IPC was added. According to the complainant, Jagdish Chand, in the evening of 14.7.2008, while he sowing the field, Makhan Singh, Gurdeep Singh and Hardeep Singh came to the field. They tried to stop him from sowing the field. While Makhan Singh hit him over the head with a Kansia (a sharp edged weapon), Hardeep Singh hit him with a lathi on his arm which broke his arm, and Gurdeep Singh also hit him with a lathi on his right arm and also on his back. Due to these injuries, he fell down and fainted. He was initially taken to his house, and thereafter to the hospital where his statement was recorded. It is, on the basis of this statement, that the Police registered a formal FIR, FIR No. 299/2008, for offences under Sections 323, 447 and 379 IPC. Although the Police filed a charge-sheet against the present petitioners for the offences under Sections 323, 324, 325, 307 and 379 IPC, it did not file any charge-sheet against Makhan Singh. Vide order dated 29.4.2009, the learned Judge framed the aforementioned charges. Hence, this petition before this Court. 3. Mr. Anil Upadhyay, the learned Public Prosecutor has raised a preliminary objection with regard to the maintainability of the petition. For, according to him, the learned trial Court has already recorded the testimonies of four witnesses. Since the testimonies are being recorded by the trial Court, according to the learned Public Prosecutor, this case has become infructuous. Therefore, it deserves to be dismissed as infructuous. 4. On the other hand, relying on the case of Udai Singh and Anr. vs. State of Rajasthan (2011(1) Cr.L.R. (Raj.) 161), Mr. Pradeep Shah, the learned counsel for the petitioners, has vehemently contended that merely because the testimonies are being recorded by the learned trial Court, it would not make the petition infructuous. 4. On the other hand, relying on the case of Udai Singh and Anr. vs. State of Rajasthan (2011(1) Cr.L.R. (Raj.) 161), Mr. Pradeep Shah, the learned counsel for the petitioners, has vehemently contended that merely because the testimonies are being recorded by the learned trial Court, it would not make the petition infructuous. According to the learned counsel, a case becomes infructuous only when the relief sought by the petitioner is granted prior to the hearing of the case, or if the relief sought cannot be given due to change in the circumstances. However, in the present case, neither the relief has been granted, nor the circumstances have changed to such an extent so as to deny the grant of the relief. Secondly, the learned counsel for the petitioners has contended that the charges framed by the learned trial Court are legally unsustainable. Thus, it is an illegal order. Therefore, merely by flux of time an illegal order does not become legal one. The illegality of the order continues to be the same and needs to be examined by this Court. Thirdly, there is no bar contained either in Section 397 or in Section 401 Cr.P.C., which debars this Court from hearing a revision petition merely because the testimonies are being recorded by the learned trial Court. 5. In rejoinder, the learned Public Prosecutor has contended that although there may not be a bar in law, but a norm has been evolved by this Court that in case the charge order is under challenge, and if the testimonies are being recorded, this Court would not interfere with the charge order. 6. Heard the learned counsel for the parties on the preliminary objection. 7. 6. Heard the learned counsel for the parties on the preliminary objection. 7. In the case of Udai Singh (supra), this Court has observed as under : Therefore, irrespective of the fact that trial has commenced and couple of witnesses might have been examined by the learned trial Court merely on account of lapse of some time since filing of the present revision petition on 15.5.2009 till now, it cannot be held that the revision petition has become infructuous by sheer lapse of time or on the ground that trial has proceeded to some extent and this Court having been satisfied that no charge for the offence under Section 498A IPC is made out against the present petitioners, is inclined to quash the charge against the present petitioners even at this stage. 8. Although the learned Coordinate Bench has expressed is conclusion, a bare perusal of the judgment reveals that no reason has been given for coming to the said conclusion. yet, the preliminary objection raised by the learned Public Prosecutor is an important one and needs to be answered. 9. Flowing from the preamble of the Constitution of India, emerging from Article 21 of the Constitution of India, in accordance with the principle of natural justice, and bathed in the constitutional mandate, the right to a fair trial is a right of an accused. Being a Constitutional right, being part of eternal principle of audi alterem partem, such a right should not be disregarded and taken lightly. This is a right which deserves not only to be respected, but also to be protected and promoted if the rule of law is to prevail. 10. Ex debito justitiae (to do real and substantial justice), is the raison d'^etre (the reason to be) for the entire judicial system. The judiciary in India is committed to protecting the rights of the people. It is for this reason that it has been called the arch-angel of the rights of the people. To protect the people is a sacred duty bestowed not only by the Constitution, but also by the statutory laws. Hence, the judiciary cannot abdicate its fundamental duty on any pretext. 11. Section 397 Cr.P.C. is as under : 397. Calling for records to exercise powers of revision. To protect the people is a sacred duty bestowed not only by the Constitution, but also by the statutory laws. Hence, the judiciary cannot abdicate its fundamental duty on any pretext. 11. Section 397 Cr.P.C. is as under : 397. Calling for records to exercise powers of revision. (1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior court, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that the be released on bail or on his own bond pending the examination of the record. Explanation. All Magistrates, whether Executive or Judicial, and whether exercising original or appellate jurisdiction shall be deemed to be inferior to the Sessions Judge for the purposes of this subsection and of Section 398. (2) The powers of revision conferred by sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding. (3) If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further applica-tion by the same person shall be entertained by the other of them. 12. Section 401 Cr.P.C. is as under : 401. High Court's powers of revision. (1) In the case of any proceeding the record of which has been called for by itself or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by Sections 386, 389, 390 and 391 or on a Court of Session by Section 307 and, when the Judges composing the Court of revision are equally divided in opinion, the case shall be disposed of in the manner provided by Section 392. (2) No order under this Section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence. (2) No order under this Section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence. (3) Nothing in this section shall be deemed to authorize a High Court to convert a finding of acquittal into one of conviction. (4) Where under this Code an appeal lies and no appeal is brought, no proceeding by way if revision shall be entertained at the instance of the party who could have appealed. (5) Where under this Code an appeal lies but an application for revision has been made to the High Court by any person and the High Court is satisfied that such application was made under the erroneous belief that no appeal lies thereto and that it is necessary in the interests of justice so to do, the High Court may treat the application for revision as a petition of appeal and deal with the same accordingly. 13. Section 397 Cr.P.C. bestows a power upon the High Courts to call any record and to examine the record of any proceeding before any inferior criminal Court in order to satisfy itself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed and as to the regularity of any proceedings of such inferior Court. Section 401 Cr.P.C. on the other hand, confers additional power bestowed by Sections 386, 389 and 391 to be exercised by the High Court in its revisional jurisdiction. 14. Section 401(2) Cr.P.C. limits the powers of the High Courts to the extent that it cannot pass any order prejudicial to the accused or other person unless such a person is given an opportunity of being heard either personally or through pleader in his defence. Similarly Sec. 402(3) Cr.P.C. further limits the power of the High Courts to the extent that it cannot convert a finding of acquittal into one of conviction. Section 401(5) Cr.P.C. permits the High Court to treat a revision petition as an appeal and to deal with it accordingly. 15 . These provisions further reveal that the power of revision is not cribbed, cabined or confined by the fact that after framing of the charge order, the testimonies are being recorded by the trial Court. Section 401(5) Cr.P.C. permits the High Court to treat a revision petition as an appeal and to deal with it accordingly. 15 . These provisions further reveal that the power of revision is not cribbed, cabined or confined by the fact that after framing of the charge order, the testimonies are being recorded by the trial Court. Although a norm may have been evolved by this Court to treat a revision petition as having become "infructuous", but such a norm is a rule of convenience and not a rule of law. Such a norm has developed over the years s it permits the Court to control the flood of cases inundating the Court. However, with due respect, such a norm ignores the fact that fundamental duty of the Court is to do justice to the people. Merely because the cases are skyrocketing is not an excuse for the judiciary to slam the door on the face of a poor litigant who has sought the refuge of the Court. If the judiciary is permitted to turn away a litigant without hearing his case, it would not only amount to abdicating its primary duty, but would also undermine the faith of the people in the criminal judicial system. The judiciary thrives and prospers only on the basis of the faith of the people. People flock to the Court with the hope hot justice would be done to them. If the hope is dashed without any rhyme or reason, only for the convenience of the Judges, the people are bound to turn away from the judiciary and are destined to take the law in their own hands. If the rule of law is to prevail, as it must, the judiciary is constitutionally bound to hear a petition even if the testimonies are being recorded by the learned trial Court. 16. In a revision petition, what is being challenged is the correctness or legality of the order. An incorrect or an illegal order does not become correct or legal order merely by flux of time. Therefore, the judiciary cannot turn a blind eye to the existence of an illegal order on the pretext that the testimonies are being recorded by the learned trial Court. If the order is illegal, it continues to be illegal, even if testimonies are being recorded. Therefore, the judiciary cannot turn a blind eye to the existence of an illegal order on the pretext that the testimonies are being recorded by the learned trial Court. If the order is illegal, it continues to be illegal, even if testimonies are being recorded. The fact that testimonies are being recorded, cannot transform an illegal order into a legal one. 17. While exercising its power under Section 397 read with Section 401 Cr.P.C., this Court also has to remember that the judicial process is atime consuming process. Considering the large number of cases, a case may not come up for hearing or may not be decided prior to the recording of the testimonies by the learned trial Court. But the excruciatingly slow process of the legal proceedings cannot deny the litigant his right to challenge an order which appears to be incorrect or illegal or improper. If the litigant has acted upon and has been vigilant in trying to defend his right, he cannot be made to suffer for not fault of his. His petition cannot be dismissed in limine or the flimsy ground that the learned trial Court has started recording the testimony. 18. A petition becomes infructuous under two conditions : firstly, either the relief prayed for from the court has already been granted by another authority and the grievance of the petitioner no longer exists. Secondly, the circumstances have changed to such an extent that the relief prayed for can no longer be granted by the Courts. For example, if an anticipatory bail application has been filed and the offender has been arrested subsequently by the Police. Consequently, by the change of circumstances, the Court possibly cannot grant an anticipatory bail. However, if the illegality of a charge order is under challenge, merely because testimonies are being recorded; it would not pre-empt the Court from adjudicating upon the legality of the order. Moreover, unless the charge order itself is modified by the learned trial Court, in case an application under Section 216 Cr.P.C. were to be allowed. The charge order would continue to exist which needs to be examined by this Court. Thus, it cannot be claimed that a revision petition becomes "infructuous" on the ground that recording of the testimonies has commenced in the trial proceedings. Hence, the preliminary objection raised by the learned Public Prosecutor is clearly unacceptable. 19. Mr. The charge order would continue to exist which needs to be examined by this Court. Thus, it cannot be claimed that a revision petition becomes "infructuous" on the ground that recording of the testimonies has commenced in the trial proceedings. Hence, the preliminary objection raised by the learned Public Prosecutor is clearly unacceptable. 19. Mr. Pradeep Shah, learned counsel for the petitioners, has contended that although the complainant had claimed that three persons had assaulted him, namely Makhan Singh, Gurdeep Singh and Hardeep Singh, but the Police has filed a charge-sheet only against Gurdeep Singh and Hardeep Singh. According to the complainant, the incised wound on the head was caused by Makhan Singh and that too by use of a sharp edged weapon like a Kansia. However, according to the complainant. Hardeep Singh had hit him on his left arm and his arm was fractured. Furthermore, according to him, Gurdeep Singh had hit him with a lathi on the right side, and in the back of the body. According to the learned counsel, since the injuries inflicted by Gurdeep Singh and Hardeep Singh are on non-vital parts of the body, the charge under Sec. 397 Cr.P.C. cannot be framed against them. Secondly, since Makhan Singh has not been charge-sheeted by the Police, therefore, the charge under Section 307 read with Section 34 IPC cannot be framed against the petitioners. According to the learned counsel, at worse, the case against petitioners travels only upto an offence under Section 325 IPC for causing grievous hurt by a blunt weapon. 20. On the other hand, the learned Public Prosecutor has contended that merely because the Police has not charge-sheeted Makhan Singh, who allegedly caused a sharp edged injury on the head of the injured, this fact by itself does not prevent the trial Court from framing a charge under Section 307 IPC and in the alternative under Section 307/34 IPC. For, according to the learned Public Prosecutor, the Court is not bound by the finding of the Police. Since the injured has already testified before the Court that it is Makhan Singh, who had assaulted on his head with Kansia, a distinct possibility does exist that an application under Section 319 Cr.P.C. would be moved by the prosecution for issuing process against Makhan Singh. Thirdly, according to the prosecution, both the petitioners had accompanied and had entered the field belonging to Jagdish Chand. Thirdly, according to the prosecution, both the petitioners had accompanied and had entered the field belonging to Jagdish Chand. The petitioners along with Makhan Singh carried weapons in their hands and they were aware of the fact that they were carrying a lethal weapon. They entered the farm and assaulted Jagdish with the intention of causing his death. Hence, the petitioners shared a common intention with Makhan Singh to cause death of Jagdish. However, they did not succeed in their design. But nonetheless, hurt was caused to Jagdish during the course of assault. According to later part of Section 307 IPC, in light of illustration (c), if hurt is caused, then the case falls within the ambit of Section 307 IPC. According to the learned Public Prosecutor, under the facts and circumstances of the case, an offence under Section 307 IPC or in the alternative under Section 307/34 IPC is made out. Therefore, the learned Public Prosecutor has supported the impugned order. 21. Heard the learned counsel for the parties and perused the impugned order. 22. It is, indeed, a settled principle of law that the trial Court is not bound by the investigation report. In fact, the trial Court is required to apply its mind independently of the investigating agency. For, the learned trial Court cannot be guided blindly by the Investigating Officer. Moreover, while framing the charge, the trial Court is permitted to sift through the evidence to the limited extent to see if an offence has been committed or not. And if a strong suspicion exists that the offence may have been committed by the offender, then the Court should frame the charges. At the time of framing of the charge, the trial Court is not concerned with the question whether trial would lead to the conviction of the offender or not. In the case of Vishwa Kumar Sharma vs. State of Rajasthan ( 2006(2) WLC 268 ), this Court has observed as under : 16. Thus, there are differences between "taking of cognizance" and "framing of charge". Of course, both the acts require the application of judicious mind. However, the former is done without hearing both the parties. Cognizance is taken without the accused being heard. The latter is done after hearing both the parties. In the former, the Judge examines the evidence to see if an offence has been committed. Of course, both the acts require the application of judicious mind. However, the former is done without hearing both the parties. Cognizance is taken without the accused being heard. The latter is done after hearing both the parties. In the former, the Judge examines the evidence to see if an offence has been committed. In the latter, the Judge examines the commission of the alleged crime by the accused. In the former, mere 'suspicion about the commission of an offence' is enough for taking of the cognizance. In the latter, "grave suspicion about the commission of the crime by the accused" should exist before a charge can be framed. In the former, the Judge is not supposed to sift through the evidence. In the latter, a limited sifting of the evidence is permissible. Therefore, when the phrase "prima facie evidence" is used, it is used for two different sets of examinations at two different stages of the criminal process. One has to realize that the trial progresses through different stages. Hence, appreciation of evidence has to be of different quality. While at the stage of cognizance it is mere 'suspicion', at the stage of framing of charge it is 'grave suspicion', and at the end of trial, it is a critical analysis and a meticulous examination of the entire evidence produced by the Prosecution and the accused'. Therefore, the appreciation of evidence at the stage of framing of charges is at micro level; at the end of the trial it is at macro level. Hence, the mental level of appreciation changes at every stage of the criminal process: from a cursory appreciation to a critical one. 23. In the present case, the learned trial Court was merely concerned with the issue whether the offence under Section 307 IPC has been committed or not, and whether the petitioners can be said to have shared the common intention with known or unknown persons for committing an offence under Section 307 IPC or not? Jagdish in his statement recorded under Section 161 Cr.P.C. as well as in the FIR, and Pawan Kumar, in his statement recorded under Section 161 Cr.P.C., have clearly stated that the petitioners had entered the farm along with Makhan Singh. They further claimed that while Makhan had caused a sharp edged injury on the head of Jagdish, the present petitioners caused injuries on other parts of his body. They further claimed that while Makhan had caused a sharp edged injury on the head of Jagdish, the present petitioners caused injuries on other parts of his body. Their statements were further corroborated by the injury report of Jagdish which clearly shows the existence of an incised wound on the head and clearly reveals injury on the left wrist. Considering their statements, considering its corroboration by medical evidence, there was no reason for the trial Court to doubt their statements at the stage of framing of the charge. Thus, obviously the petitioners shared a common intention with Makhan Singh to cause the death of Jagdish. Although the charge for offence under Section 307 IPC simplicitor has been framed against the petitioners, but nonetheless in the alternative a charge for offence under Section 307 read with Section 34 IPC has equally been framed by the learned trial Court. Needless to say, Section 34 does not create an offence; it is merely a rule of evidence to be applied for convicting a person vicariously. 24. one of the principles guiding the framing of the charge is to frame the charge which may be more grave than the actual charge for which a person could be convicted eventually. It would, indeed, be a folly to frame lesser charge and to realize at the end of the trial that a graver charge should have been framed. 25. It is, indeed, trite to state that the revisional jurisdiction of this Court is a limited one. Under this jurisdiction the Court is concerned only with the correctness, legality or propriety of the order. Moreover, this Court is concerned with whether the subordinate Court has either refused to exercise jurisdiction vested in it or has overstepped its jurisdiction. A bare perusal of the impugned order does not fall within any of these grounds of challenge. 26. Therefore, for the reasons stated above, this Court does not find any force in the petition. Hence, it is, hereby dismissed.