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2011 DIGILAW 2815 (RAJ)

Om Prakash v. State of Rajasthan

2011-12-22

SANDEEP MEHTA

body2011
Hon'ble MEHTA, J.—The present revision petition has been preferred on behalf of the petitioners challenging the order dated 16.6.2011 passed by the Additional Sessions Judge, Sujangarh, District Churu in Sessions Case No. 15/2008 (State vs. Aslam & Ors.), whereby charges have been framed against the petitioners for the offences under Sections 148, 365, 367, 323/149, 324/149, 325/149, 326/149 and 307/149, I.P.C. 2. Learned counsel for the petitioners, while arguing the revision petition against the impugned order, has proposed not to press the revision petition so far as petitioner No.4, Aslam is concerned and thus, he limited his arguments challenging the impugned order of the trial Judge to the extent petitioners Om Prakash, Vijay Kumar and Manoj Kumar are concerned. Learned counsel submits that in this case the "Parcha-Bayan" of one Seeta Ram was recorded at the Shekhawati Hospital on 19.5.208, as per which when the injured was going towards the house of Vijay Singh on 18.5.2008 at about 3.00 p.m., a car over-took his car and stopped it. From that car, Manish, Aslam and five to seven other persons surrounded the car of the complainant, pulled him out from the car and forcibly put him in the car of the accused persons. Then he was taken to Naya Bazar Chowk, where Manish Harijan assaulted him with a knife on the right hand and thereafter he was beaten indiscriminately by lathis, sariyas etc. and thereby numerous injuries were inflicted and caused on him. The first informant shouted and then became unconscious. On the basis of the said "Parcha-Bayan", an FIR No. 75/2008 was registered at Police Station, Sujangarh and the investigation ensued. During the course of investigation, the statement of injured Seeta Ram was recorded under Section 161 Cr.P.C. and in this statement as well, the names of only two assailants, viz., Manish Harijan and Aslam were disclosed and no other accused was named by the injured. The statements of various other persons, viz. Rajendra, Sarvesh, Roopa Ram and Leeladhar were recorded, who named only Manish Harijan and Aslam as the assailants. Witnesses Manoj Godara and Panna Lal Prajapat were also examined, who, though had taken the injured to the hospital but do not claim to have seen any assailant. 3. It is disclosed from the record that the principal accused are Aslam and Manish Harijan and at the instance of these accused persons, certain recoveries were also effected. Witnesses Manoj Godara and Panna Lal Prajapat were also examined, who, though had taken the injured to the hospital but do not claim to have seen any assailant. 3. It is disclosed from the record that the principal accused are Aslam and Manish Harijan and at the instance of these accused persons, certain recoveries were also effected. The petitioners Om Prakash, Vijay Kumar and Manoj were arrested on 25.8.2008, 01.11.2008 and 10.12.2008 respectively. A lathi is said to have been recovered at the instance of petitioner Vijay Kumar. The charge-sheet filed against the petitioners does not reveal as to what was the incriminating material against the petitioners. Be that as it may, after filing of the charge-sheet, the matter was committed to the Court of the Additional Sessions Judge, Sujangarh, who, by the impugned order dated 16.6.2011, has framed the charges against the petitioners. Being aggrieved whereof, the petitioners have preferred the present revision petition. 4. Assailing the impugned order of the trial Judge, learned counsel for the petitioners submits hat the learned trial Judge himself has observed at page No.2 of the impugned order that none of the witnesses of the prosecution has named the petitioners as the assailants and that no test identification parade has been conducted for establishing the identity of the petitioners as the assailants. The observation made by he learned trial Judge at page No.2 of the impugned order reads as under : ^^;g lgh gS fd vfHk;qä fot; dqekj] vkseizdk'k vkSj eukst dk uke fdlh Hkh xokg us ugha crk;k vkSj u gh mudh dk;Zokgh f'kuk[rxh gqbZA vfHk;qä fot; dqekj ds vykok eukst vkSj vkseizdk'k ls dksbZ cjkenxh ugha gqbZA ijUrq ipkZ c;ku o mlds vk/kkj ij ntZ izFke lwpuk fjiksVZ vkSj xokgksa ds c;kuksa esa ;g rF; Li"V :i ls vk;k gS fd ekjihV djus esa euh"k vkSj vlye ds vykok 5-6 O;fä vkSj FksA vuqla/kku vf/kdkjh us vius vuqla/kku esa eqfYteku euh"k vkSj vlye ls dh xbZ rrh'k ds ckn mu ikap-N% O;fä;ksa esa eukst] vkseizdk'k o fot; dqekj dks Hkh vijk/k esa 'kkfey gksuk ik;k gSA fot;dqekj dh fu'kkunsgh ls vuqla/kku esa ykBh Hkh cjken gqbZ gSA bl izdkj ;g rF; izFke n`"V;k i=koyhj ij gS fd euh"k vkSj vlye ds vykok ekjihV djus esa 5-6 O;fä vkSj Fks vkSj vuqla/kku esa vfHk;qä fot;dqekj] vkseizdk'k o eukst dks vijk/k esa 'kkfey ik;k gSA Despite that the learned trial Judge has framed the charges against the petitioners simply because he investigating officer chose to file a charge-sheet against the petitioners. Learned counsel for the petitioners submits that the learned trial Judge is not the mouth piece of the prosecution and that consideration of a sessions case at the state of framing of charges is not a mechanical exercise. He submits that the trial Judge has committed grave error and illegality in framing charges against the petitioners for the aforesaid offences despite making the aforesaid observation that there was no evidence as per the charge-sheet to connect the petitioners with the crime. He further submits that the impugned order, whereby the charges have been framed against the petitioners, entails a grave consequence because the same virtually amounts to directing the innocent persons to face the trial for the offences involving life imprisonment, thus, he submits that the impugned order virtually amounts to an invasion of the fundamental right, i.e. right to life, guaranteed under Article 21 of the Constitution of India. 5. Learned Public Prosecutor, though has opposed the arguments advanced by the learned counsel for the petitioners but he is not in a position to point out as to on what evidence the petitioners have been charge-sheeted and as to what is the basis for framing the charges against the petitioners. 5. Learned Public Prosecutor, though has opposed the arguments advanced by the learned counsel for the petitioners but he is not in a position to point out as to on what evidence the petitioners have been charge-sheeted and as to what is the basis for framing the charges against the petitioners. 6. I have given my thoughtful consideration to the rival arguments advanced at the bar and carefully gone through the impugned order. 7. From the facts narrated above, it become crystal clear that none of the prosecution witnesses has named the petitioners No.1, 2 and 3, viz., Om Prakash, Vijay Kumar and Manoj Kumar, as being the assailants with co-accused Aslam and Manish Harijan. The learned trial Judge has himself observed that there is no direct evidence to connect the petitioners with the alleged crime and that these petitioners have not been subjected to test identification parade as well; despite that he has chosen to frame charges against these petitioners No.1, 2 and 3, viz., Om Prakash, Vijay Kumar and Manoj Kumar. In the opinion of this Court, the trial Judge is not supposed to be a mouth piece of the prosecution whilst considering a sessions case at the stage of framing of charges. The trial Judge, in the impugned order, has observed that because the investigating officer has chosen to file the charge-sheet against the petitioners and has found them involved in the offences, therefore, the charges were being framed against the petitioners. As such, the impugned order cannot be said to be justified by any stretch of imagination. 8. The jurisdiction of the Sessions Court, whilst considering the question of framing charges against the accused, by virtue of Sections 227 and 228 Cr.P.C. is not an empty formality. If the opinion of the investigating officer is the final yard-stick for framing the charges then there was no reason for the Legislature to have enacted the provisions of Sections 227 and 228 Cr.P.C. The learned trial Judge, before proceeding to frame charges, has to form an opinion with his own wisdom that there is ground for presuming that the accused has committed the offence and thereafter only, the charges can be framed. Such an opinion has to be arrived at by the trial Judge after hearing the accused and the prosecution and after considering the papers submitted along with the charge-sheet. Such an opinion has to be arrived at by the trial Judge after hearing the accused and the prosecution and after considering the papers submitted along with the charge-sheet. He cannot simply follow the conclusion of the investigating officer for framing charges against the accused. Thus, it is apparent that the impugned order, so as far framing charges against the petitioners No.1, 2 and 3, viz., Om Prakash, Vijay Kumar and Manoj Kumar, is concerned, is patently illegal. The impugned order framing charges against petitioners No.1 to 3 has been passed in a manner which cannot be appreciated at all. 9. Resultantly, the revision petition filed on behalf of petitioners No.4 Aslam is rejected because the learned counsel for the petitioners, as the very out-set, has not pressed the revision petition filed on behalf of petitioner No.4 Aslam. That apart there is, from the perusal of the Challan papers, prima facie, evidence to connect the petitioner No.4 Aslam with the crime. 10. So far as the revision petition filed on behalf of petitioners No.1, 2 and 3, viz., Om Prakash, Vijay Kumar and Manoj Kumar, the same succeeds. The impugned order dated 16.6.2011 passed by the learned Additional Sessions Judge, Sujangarh, District Churu in Sessions Case No. 15/2008, qua petitioner No.1 Om Prakash, petitioner No.2 Vijay Kumar and petitioner No.3 Manoj Kumar, is quashed and set aside. Petitioner No.1 Om Prakash, petitioner No.2 Vijay Kumar and petitioner No.3 Manoj Kumar are discharged from the charges framed against them. The trial Court shall proceed with the trial of the case so far as petitioner No.4 Aslam is concerned, as one of the accused namely Manish Harijan has reportedly expired.