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2012 DIGILAW 1205 (PAT)

Vikash Kumar Thakur v. State of Bihar

2012-08-28

BIRENDRA PRASAD VERMA

body2012
ORDER Re. Interlocutory Application No. 1465 of 2008 After having heard learned counsels for the parties, though prayer is being strongly opposed on behalf of the opposite party nos. 2 to 6 that the delay has not been properly explained, yet for the reasons disclosed in this interlocutory application that the petitioner was undergoing treatment at AIIMS, New Delhi, prayer for condonation of delay is hereby allowed. The limitation in filing the main criminal revision application is condoned. The interlocutory application stands disposed of. Re. Cr. Revision No. 724 of 2008 2. The petitioner, the informant of the criminal case, has approached this Court under Sections 397 and 401 of the Code of Criminal Procedure, 1973 (for short ‘Cr.P.C’), questioning the correctness, legality and propriety of the impugned judgment and order dated 24.4.2007 passed in Sessions Case No. 414 of 2000/16 of 2002 by the learned 2nd Assistant Sessions Judge, Samastipur, acquitting the accused opposite party nos. 2 to 6 for charges under Sections 148, 323,379 and 307/34 of the Indian Penal Code. 3. Learned counsel appearing on behalf of the petitioner has raised a very short question for assailing the impugned judgment of acquittal. It is contended that the petitioner lodged a criminal case against the opposite party nos. 2 to 6 for offences under Section 307/34 and some allied Sections of the Indian Penal Code. On close of investigation, charge sheet was submitted against accused opposite party nos. 2 to 6 and, accordingly, cognizance was taken by the learned Judicial Magistrate, whereafter the case was committed to the court of Sessions giving rise to Sessions Case No. 414 of 2000. On transfer of the case, the learned trial court framed charges, as indicated above, against accused opposite party nos. 2 to 6 on 15.7.2003. It is the specific case of the petitioner that despite framing of charge, at no point of time summons was ever served either on the informant or any other witnesses,- official or non-official, named in the charge sheet. Even warrant of arrest was never executed. According to the learned counsel appearing on behalf of the petitioner, without complying the mandate of Section 62 Cr.P.C. or any other provisions contained in chapter VI of Cr. Even warrant of arrest was never executed. According to the learned counsel appearing on behalf of the petitioner, without complying the mandate of Section 62 Cr.P.C. or any other provisions contained in chapter VI of Cr. P.C., the evidence of the prosecution was arbitrarily closed by the learned trial court without recording the evidence of even a single witness and thereafter by the impugned judgment, the accused opposite party nos. 2 to 6 have been illegally acquitted. According to the learned counsel, there has been violation of procedure prescribed under law and, therefore, the impugned judgment of acquittal is fit to be set aside by this Court in exercise of its revisiuonal jurisdiction and the matter is fit to be remitted to the learned trial court for de novo trial. 4. By order dated 2.11.2010, lower court records were called for which have been received. 5. Learned Additional Public Prosecutor appearing on behalf of the State and learned counsel appearing on behalf of opposite party nos. 2 to 6 have fairly submitted that from perusal of the entire order sheet of the learned trial court, it does not appear that summons was ever served upon any of the witnesses. Learned counsel appearing on behalf of opposite party nos. 2 to 6 contends that, in fact, summons was issued but there is no service report. According to him, the Public Prosecutor was obliged to get the summons served and secure the attendance of the witnesses. The Public Prosecutor having failed to discharge his duties, the benefits have rightly been given to the accused persons acquitting them from the charges. 6. After having heard the parties and on perusal of the impugned judgment as also on examination of the lower court records, it is apparent that though orders were passed by the learned trial court for issuance of summons against the witnesses, but there is nothing on record to show that summons was ever served upon any of the witnesses either official or non-official including the informant. It further appears that though orders were passed by the learned trial court for issuance of warrant of arrest against the witnesses, but the same were never executed. In the aforesaid factual background, there appears to be a procedural irregularity having been committed by the learned trial court for closing the prosecution evidence. It further appears that though orders were passed by the learned trial court for issuance of warrant of arrest against the witnesses, but the same were never executed. In the aforesaid factual background, there appears to be a procedural irregularity having been committed by the learned trial court for closing the prosecution evidence. The learned trial court was obliged to see that summonses, in fact, were actually issued and actually served upon the witnesses. But apparently, that has not been done in the present case. 7. For the reasons recorded above, the impugned judgment and order dated 24th April, 2007 passed in Sessions Case No. 414 of 2000/16 of 2002 by learned 2nd Assistant Sessions Judge, Samastipur, is hereby set aside and the aforesaid Sessions Case is remitted to the learned trial court for de novo trial of the opposite party nos. 2 to 6. 8. Since, criminal case has become very old one, as it was lodged in the year 1998, it is expected that the learned trial court shall make all endeavours to conclude the trial of opposite party nos. 2 to 6 within a maximum period of one year from the date of receipt/production of a copy of this order. Learned counsel appearing on behalf of opposite party nos. 2 to 6 undertake that they shall co-operate and immediately appear before the learned trial court on receipt of the summons issued by the learned trial court. 9. The application stands allowed with the observations and directions made above. 10. Let the lower court records be transmitted to the learned trial court forthwith, so that the trial may be expedited.