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2012 DIGILAW 1043 (GAU)

Ngilyang Yami v. State of Arunachal Pradesh

2012-09-04

PRASANTA KUMAR SAIKIA

body2012
JUDGMENT Prasanta Kumar Saikia, J. 1. This proceeding has been directed against the order dated 02.05.2 12 passed by the Session, Yupia in Session Case No. 129/10 framing Charge under Section 325/427/342/304/34 IPC against Shri. Hage Chailyang hereinafter referred to as respondent No. 2 as well as discharging Smti. Hage Meena and Shri Hage Mobin, hereinafter referred as respondent No. 3 and respondent No. 4 respectively. Being aggrieved by and dissatisfied with the aforesaid order, this proceeding has been initiated by one Smti. Ngilyeng Yami, the petitioner, who happens to be the daughter of one (L) Ngliyang Sai, who was allegedly killed by accused persons who were respondent No. 2, respondent No. 3 and respondent No. 4 along with some oilier persons. 2. The facts necessary for disposal of this present proceeding, in short are trail on 05.10.07, one Smti. Ngilyang Yanya, wife of (L) Ngliyang Sai and the mother of the revision petitioner has lodged a written FIR with the Police at Ziro Police Station alleging that her husband Nigliang Sai had been brutally assaulted by a group of people which includes respondents herein as well at Hari village under the Ziro Police Station and which left said Ngliang Sai seriously injured. 3. Injuries on the said Sai required his immediate hospitalisation. It is also been alleged in the written FIR that the vehicle of her husband was badly damaged by accused persons. However, the deceased succumbed to the injuries at R.K. Mission, Hospital at Itanagar same day. On the receipt of the FIR, a case was registered, vide Ziro PS Case No. 79/2007 under Section 325/427/342/304/34 IPC and an investigation was ordered. 4. During the course of investigation, the Investigating Officer examined as many as 17 witnesses, recorded the statement of witnesses, sent the dead body to hospital for post mortem examination, collected the post mortem report and on completion of the investigation, he submitted the Charge sheet under Section 325/427/342/304/31 IPC against the accused persons, viz, Hage Chailyang @ Hage Abing, Hage Meena and Hage Mobinand and forwarded them to the Court to face their trial. 5. The Magistrate, before whom the case was so laid, committed the case to the Sessions as the offence under Section 304 IPC is exclusively triable by the Court of Sessions. 5. The Magistrate, before whom the case was so laid, committed the case to the Sessions as the offence under Section 304 IPC is exclusively triable by the Court of Sessions. The learned Sessions Judge after commitment of the case and on perusing the materials, placed before him and also after hearing the parties, framed charge under Section 325/427/342/304 IPC against accused Hage Chailyang @ Hage Abing Hage and charge, so framed, on being read over and explained to the accused person, he pleaded not guilty and claimed to be tried. 6. However, the learned Session Judge considers that there was not sufficient ground to proceed against other two accused persons and as such, he discharged those two accused persons and in that connection, he passed the order under challenged. As stated above, being aggrieved, the daughter of the deceased, namely, Smti. Ngilyang Yami came up with proceeding under Section 397/401 read with Section 482 IPC praying for modification of order in respect of accused Hage Chailyang. She also prays that the order in respect of Hage Meena and Hage Mobing be set aside. 7. Since, according to the petitioner, there are enough materials to frame charge under Section 325/427/342/304/34 IPC against all accused person aforesaid. Inspite of there being enormous materials to frame charge under the aforesaid provisions of law against accused persons, learned Session Judge framed charge under Section 325/427/342/304 IPC only against accused Hage Chailyang while discharging accused Hage Meena and Hage Mobing of all allegations, levelled against them. 8. In that connection, learned counsel for the petitioner has taken me through the materials on record. Referring to the statements, rendered by Smti. Ngilyang Yami, Ngilyang Tjang and one Sri Ngilyang Tiling under Section 161/164 CrPC, it has been submitted that statements, so rendered by those witnesses, without any shadow of doubts show that a prima facie case does exist against all accused persons requiring this Court to frame charge under Section 325/427/342/302 IPC read with Section 34 IPC against them. However, in gross violation of the responsibility, entrusted upon him, the learned Session Judge, Yupia passed the order as aforesaid. 9. In support of his contention, learned counsel for the petitioner has referred to the decision his Court in the case of Bhagya Kalita Vs. Central Bureau of Investigation, reported in 2000(3) GLT 427, Superintendent of Police, CBI Vs. However, in gross violation of the responsibility, entrusted upon him, the learned Session Judge, Yupia passed the order as aforesaid. 9. In support of his contention, learned counsel for the petitioner has referred to the decision his Court in the case of Bhagya Kalita Vs. Central Bureau of Investigation, reported in 2000(3) GLT 427, Superintendent of Police, CBI Vs. S.P. Singh & Ors., reported in 2007(4) GLT 139 and 2011 GLT (Crl) 667. In the case of Bhagya Kalita Vs. Central Bureau of Investigation reported in 2000(3) GLT 427, this Court held as follows:- 4....Referring to the earlier decisions the Apex Court laid down the following principles in para 10 of the judgment in the case of Union of India Vs. Parfulla Kumar Samal (supra):- 10. Thus, on a consideration of the authorities mentioned above, the following principles emerge: (1) That the Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. (2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial. (3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused. (4) That in exercising his jurisdiction under Section 227 of the code is a senior and experienced Court cannot act merely as a Post-Office or a mouth-piece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however, does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial. 5. This however, does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial. 5. The principles laid down in Prafulla Kumar Samal (supra) was reiterated in the case of Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijja ( AIR 1990 SC 1962 ) and the Apex Court further observed: From the above discussion, it seems well settled that at the Sections 227-228 stage the Court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The Court may for this limited purpose sift the evidence as it cannot be expected even at the initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case. 6. Mr. Bhattacharyya has laid further emphasis to the following observations of the Apex Court in the case of Punjab National Bank & Ors. Vs. Surendra Prasad Sinha ( AIR 1992 SC 1815 ):- It is also salutary to note that judicial process should not be an instrument of oppression or needless harassment. The complaint was laid impleading the Chairman, the Managing Director of the Bank by name and a host of officers. There lies responsibility and duty on the Magistracy to find whether the concerned accused should be legally responsible for the offence charged for. Only on satisfying that the law casts liability or creates offence against the juristic person or the persons impleaded then only process would be issued. At that stage the Court would be circumspect and judicious in exercising discretion and should take all the relevant facts and circumstances into consideration before issuing process lest it would be an instrument in the hands of the private complaint as vendetta to harass the persons needlessly. Vindication of Majesty of justice and maintenance of law and order in the society are the prime objects of criminal justice but it would not be the means to wreak personal vengeance. Considered from any angle we find that the respondent had abused the process and laid complaint against all the appellants without any prima facie case to harass them for vendetta. 10. Considered from any angle we find that the respondent had abused the process and laid complaint against all the appellants without any prima facie case to harass them for vendetta. 10. Thus, it is found well evident that at the stage of framing of charge under Section 228 CrPC, the Court has to see whether materials on record would reasonably connect the accused with the alleged offence and it needs to do so without making any serious enquiry. On making such an exercise if Court finds that the materials on record, relied on by the prosecution, caused it to entertain a strong suspicion leading it to believe that there is ground for presuming that the accused has committed the offence then the Court is justified in framing charges against the accused person. Similar view has been rendered by this Court in the case reported in 2007(4) GLT 39: Superintendent of Police, CBI Vs. S.P. Singh & Ors. and 2011 GLT (Crl) 667. 11. Learned counsel for petitioner has submitted that the materials on record clearly passed the test laid down in the aforesaid decisions and he has, therefore, prayed that a direction may be rendered to the learned Session Judge, Yupia to frame charge under Section 325/427/342/302/34 IPC against all respondents on setting aside the impugned order in respect of accused-respondent No. 3 and 4 whereby and where-under the learned trial Court discharged those two respondents of all the charges brought against them and on modifying the order in respect of the accused-respondent No. 2 to the extent stated above. 12. Mr. PK Tiwari, learned counsel appearing for accused-respondent No. 2, 3 & 4 has submitted that the order impugned is perfectly alright in respect of the accused-respondent No. 2 and as such, same needs no interference. According to him, on materials on record, no one can reasonably, urge any Court to frame a charge under Section 302 IPC against accused-respondent No. 2 although such materials prima facie disclose an offence under Section 304 IPC having been committed by said respondent. 13. But in respect of accused-respondent No. 3 & 4, referring to Section 227 CrPC; he has fairly submitted that under law, the learned Trial Court was obliged to pass a reasoned order if he chooses to discharge the accused persons of the allegation brought against them. 13. But in respect of accused-respondent No. 3 & 4, referring to Section 227 CrPC; he has fairly submitted that under law, the learned Trial Court was obliged to pass a reasoned order if he chooses to discharge the accused persons of the allegation brought against them. But learned Court below did not do so while discharging accused-respondent No. 3 & 4 from the allegations levelled against them. Above being the position, order in question, in respect of accused-respondent No. 3 & 4, being unsustainable in law, is liable to be set aside, as prayed for. 14. His further submission was that in the event of setting aside the order in respect of accused-respondent No. 3 & 4 or even in respect of accused-respondent No. 2 and in the event of remanding the case to the Trial Court, this Court cannot pass an order directing the Trial Court to frame charge under Section 302 IPC or under any other provisions of law against accused-respondents aforesaid, as prayed for by the learned counsel for the petitioner. 15. According to him, such an order, if passed, would stand in contradiction to the legislative direction, rendered in Section 228, CrPC since Section 228, CrPC leaves it entirely to realm of the Sessions Judge to decide, on materials on record, if charge(s), at all, is to be framed, and if so, under what provisions of law and therefore, in the event of setting aside of order in question, and in the event of rendering a direction to learned Sessions Judge, as prayed for, same would be tantamount to invoking of power by this Court which legislature, in its wisdom, deem it necessary to be exercised by Sessions Judge and none else. 16. Learned counsel appearing for the accused-respondent No. 2, 3 & 4 further submits that a direction, as prayed for by the petitioner cannot be granted for other reasons as well. According to learned counsel for accused- respondent No. 2, 3 & 4, such a direction, apart from being illegal for its not in conformity with the requirement of Section 228 CrPC, would also prevent accused-respondents from raising their plea appropriately and accurately before the Court below during trial and as such, he urges this Court not to pass such direction to the Court below. 17. 17. Learned PP appearing for the State has adopted the arguments advanced by the learned counsel for the petitioner in respect of accused-respondent No. 3 & 4 in part, since, according to him, on the materials on record, it can be presumed that those two accused-respondents committed the offence under Section 325/427/342/304/34 IPC and learned Session Judge having discharged them from those offences committed an illegality. He also concurs with the submissions advanced by learned counsel for the accused-respondent No. 2, 3 & 4 in respect of accused-respondent No. 2. 18. I have very carefully considered the arguments advanced by the learned counsel for the parties. However, before proceeding further, I find it necessary to have a look into the provisions recorded in Section 227 CrPC which postulates when an accused needs to be discharged by the Court of Session. For ready reference, the said provision is reproduced below:- 227: Discharge- If upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing. (Emphasis supplied by me) 19. In the perusal of aforesaid provisions of law, more particularly, "he shall discharge the accused and record his reasons for so doing". It would appear clear that whenever Session Judge considers that there is not sufficient ground for proceeding against the accused, he is duty bound to discharge the accused persons and at the same time he must assign reason as to why he discharges such an accused person. 20. In above view of the matter, I am in full agreement with learned counsel for the respondent No. 2, 3 & 4 that the learned Judge discharging an accused of charge brought against him is duty bound to assign the reason for, his so doing. Any violation of such a mandatory direction will make an order so passed illegal. 21. Coming back to our present case, I have found that learned Judge while discharging the respondent No. 3 & 4 did not assign any reason as to why he discharged those two accused persons from the charges brought against them. Any violation of such a mandatory direction will make an order so passed illegal. 21. Coming back to our present case, I have found that learned Judge while discharging the respondent No. 3 & 4 did not assign any reason as to why he discharged those two accused persons from the charges brought against them. This makes the order in question in respect of respondent No. 3 & 4 entirely indefensible being illegal thereby requiring this Court to such an order in so far it relates to respondentNo.3 &4. 22. This bring us to the next chapter of this proceeding where I am to I decide if charge against the accused-respondent No. 2 was framed on the basis of materials on record in accordance with requirement of law. On the perusal of statement of witnesses, recorded under Section 161 CrPC as well as 164 CrPC, more particularly, statements, rendered by Smti. Ngilyang Yami, Ngilyang Tjang and one Sri Ngilyang Tiling, I have found that the framing of charge under Section 325/427/342/304 IPC in respect of the accused-respondent No. 2 cannot be faulted with. 23. This is because of the fact that in my considered view, charges against the accused-respondent No. 2 were framed on the basis of materials on record. Being so, the order in respect of accused-respondent No. 2 whereby and where-under he stood charged as aforesaid, is not illegal as alleged by learned counsel for the petitioner. Thus, the order in question in respect of accused-respondent No. 2 invites no interference whatsoever. 24. As I was taken through the materials already available on record and which are relied on by prosecution, I have found that there is sufficient ground for proceeding against accused-respondent No. 3 & 4 as well. But inspite of there being sufficient ground to proceed against those two accused-respondents, they were discharged of the allegations brought against them. This is another reason for which the order in respect of accused-respondent No. 3 & 4 needs to be set aside which is already held to be bad for violating the mandatory directions rendered in Section 227 CrPC. 25. Now, the question is- can this Court direct the Court below to charge the accused-respondents with the offence(s) which it thinks just and proper? 25. Now, the question is- can this Court direct the Court below to charge the accused-respondents with the offence(s) which it thinks just and proper? My dispassionate answered to the above query is an astounding 'NO', for, I am in full agreement with the contention of the learned counsel for respondent No. 2, 3 & 4 that this Court exercising revision jurisdiction cannot usurp the power which legislature, on enacting Section 227/228 CrPC, specially allocated for Session Judge to exercise and none else which is to be done on the basis of materials placed before him. 26. Being so, I refrain myself from giving any direction to the learned Session Judge regarding the offence(s) which accused-respondent No. 3 & 4 may be charged with on the basis of materials on record. 27. In view of what I have discussed herein before and what have emerged there-from, I am of the opinion that the order impugned in respect of accused-respondent No. 3 & 4 needs to be set aside which I accordingly do. However, the order in respect of accused-respondent No. 2, in view of our fore going discussion, stands affirmed. 28. In the result, the case is remanded to the Session Judge, Yupia with a direction to consider the allegation(s) brought against accused- respondent No. 3 & 4 on the basis of materials on record and then pass necessary order in accordance with law. With the above directions and observations, this criminal revision petitions is partly allowed and is disposed of.