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2013 DIGILAW 298 (PAT)

Shankar Kumar @ Shankar Yadav v. State of Bihar

2013-03-05

AMARESH KUMAR LAL, V.N.SINHA

body2013
ORDER V.N. SINHA, J. 1. Heard learned counsel for the appellant, the State and private Respondent nos. 2 to 5. 2. Appellant is the informant of Mokama P.S. Case No. 76 of 2003 dated 01.07.2003 registered for the offence under Sections 302/34, 120B/34 of the Indian Penal Code and Section 27 of the Arms Act. He has filed this appeal questioning the order dated 24.7.2012 passed in Sessions Case No. 1333 of 2005 appertaining to Sessions Trial No. 1361 of 2006 whereunder prosecution case set out in the First Information Report of Mokama P.S. Case No. 76 of 2003 dated 01.07.2003 has been rejected, as 13 witnesses produced by the prosecution did not support the prosecution case set out in the said First Information Report, the court below recorded its order under Section 232 of the Cr.P.C. acquitting the private respondents. At this stage of the dictation, counsel for the Respondent nos. 2 to 5 questioned the incorporation of Section 232 Cr.P.C. in paragraph 26 of the order on the ground that the trial court having examined the accused under Section 313 of the Cr.P.C., passed the impugned judgment of acquittal under Section 235 of the Cr.P.C. When aforesaid submission was recorded by this Court, learned counsel having perused Section 232 of the Cr.P.C. submitted that he may be permitted to withdraw the submission. 3. As prayed for, aforesaid submission is permitted to be withdrawn and is not being dealt with in the order. 4. Informant has challenged the impugned order on the ground that he appeared in the court below on 10.12.2010 with his witnesses, who could not be examined on that date and returned as one of the accused, Ranjit Sonar, Respondent no.2 was not produced from custody on the date of appearance of the informant and his witnesses. The court below adjourned the trial to 06.01.2011 directing the informant and the witnesses to execute P.R. Bond of Rs. 2000/- each for ensuring their attendance on the adjourned date 6.1.2011. The trial court also called for the records of the connected Sessions Trial No. 1195/05 from the court of ADJ V, Barh. On 6.1.2011 also Ranjit Sonar, Respondent no.2 was not produced from custody, other accused filed their representation. The records of connected Sessions Trial No. 1195/05 was received under letter no. The trial court also called for the records of the connected Sessions Trial No. 1195/05 from the court of ADJ V, Barh. On 6.1.2011 also Ranjit Sonar, Respondent no.2 was not produced from custody, other accused filed their representation. The records of connected Sessions Trial No. 1195/05 was received under letter no. 6 dated 6.1.2011 as would appear from the endorsement in the margin of the order dated 6.1.2011. Informant was, however, present in trial court on 6.1.2011 but could not be examined as Ranjit Sonar, Respondent no.2 was not produced from custody. Trial was adjourned to 18.2.2011 for recording the prosecution evidence. Ranjit Sonar, Respondent no.2 was admitted to the privilege of bail by the High Court under order dated 12.1.2011 passed in Cr. Misc. No. 37643 of 2010 in compliance whereto released on bail by the trial court under order dated 11.2.2011. After release of Ranjit Sonar, Respondent no.2 on 11.2.2011, trial court did not take up the trial on 18.2.2011, the date fixed under order dated 6.1.2011. It appears from the order sheet that after release of Ranjit Sonar, Respondent no.2 on 11.2.2011, the trial court took up the matter on 18.4.2011 which was not the date fixed in presence of the informant under order dated 6.1.2011. The trial court having taken up the matter on 18.4.2011 which was not the date fixed in presence of the informant and the witnesses, in our opinion, it was duty of the court below to issue fresh summons to the informant and the witnesses. From perusal of orders dated 18.4.2011, 6.5.2011, 30.5.2011, 14.7.2011, 26.8.2011, 27.9.2011/16.11.2011, 24.12.2011/30.1.2012, it does not appear that any summons was issued to the informant. From the order dated 30.3.2012, it, however, appears that the prosecution was granted time to produce the witnesses fixing 18.5.2012 for recording their evidence. On 18.5.2012, the court below directed the Superior Police Officer, Dy. S.P., Barh to produce the witnesses on 27.6.2012 and issued letter No. 228 dated 1.6.2012 for the purpose, though on that date out of four accused, three, namely, Ranjit Sonar, Suraj Singh @ Suraj Bhan Singh and Girdhari Singh were absent. On 27.6.2012, the court below allowed final time to the prosecution to produce the witnesses by 4.7.2012. S.P., Barh to produce the witnesses on 27.6.2012 and issued letter No. 228 dated 1.6.2012 for the purpose, though on that date out of four accused, three, namely, Ranjit Sonar, Suraj Singh @ Suraj Bhan Singh and Girdhari Singh were absent. On 27.6.2012, the court below allowed final time to the prosecution to produce the witnesses by 4.7.2012. On 4.7.2012 also, the witnesses were not present as informant and the witnesses had no notice of the trial proceeding after 18.2.2011, the date fixed under order dated 6.1.2011 but the trial was not taken up on 18.2.2011. The court below not only closed the prosecution evidence on 4.7.2012, but also examined the accused persons under Section 313 of the Cr.P.C. and gave them opportunity to examine defence witnesses, which was declined and defence evidence was closed fixing 24.7.2012 for argument. 5. Learned counsel for the appellant in this connection has referred to the letter of the Sub-Divisional Police Officer, Barh addressed to the Senior Superintendent of Police, Patna, bearing No. 7329 dated 6.12.2010, Annexure-B to the supplementary affidavit whereunder information has been given to the Senior Superintendent of Police, Patna that summons for examination of the official witnesses, Dr. Vikash Choudhary and the Investigating Officer of the case, S.I., Vinod Kumar Murmu has not been received. From the order sheet of the trial court itself, it appears that informant and the material witnesses have not been given any notice of the trial proceeding after 18.2.2011, the date fixed for examining the witnesses under order dated 6.1.2011. The trial court did not take up the trial on 18.2.2011 the date fixed under order dated 6.1.2011. It was, therefore, appropriate for the trial court to ensure issue and service of fresh summons on the informant and the witnesses. It does not appear from the order dated 18.4.2011, 6.5.2011, 30.5.2011, 14.7.2011, 26.8.2011, 27.9.2011/16.11.2011, 24.12.2011/30.1.2012 that any summon was issued and served on the informant after 18.2.2011. P.R. Bond submitted by the informant and witnesses in compliance of the order dated 10.12.2010 also became meaningless as trial was not taken up on 18.2.2011 in compliance of the order dated 6.1.2011 passed in presence of the informant. P.R. Bond submitted by the informant and witnesses in compliance of the order dated 10.12.2010 also became meaningless as trial was not taken up on 18.2.2011 in compliance of the order dated 6.1.2011 passed in presence of the informant. Before closing prosecution evidence, the trial court did not consider it proper to confirm from superior police officer, Dy.S.P., Barh about receipt of letter No. 228 dated 1.6.2012 issued in compliance of the order dated 18.5.2012 for attendance of prosecution witnesses. 6. Counsel for the private respondents has submitted that initially summons were issued to the prosecution witnesses, including the informant pursuant thereto, the informant and witnesses appeared on 10.12.2010 and executed P.R. Bonds and then again appeared on 6.1.2011, as such, it was their duty to appear in the court below on every date fixed. 7. We regret not to accept such submission. Having executed P.R. bonds on 10.12.2010, the informant did appear on the next date fixed i.e. 6.1.2011 when he could not be examined as on that day Ranjit Sonar, Respondent no.2 was not produced from jail custody and trial was adjourned to 18.2.2011. The trial was, however, not taken up on the date fixed i.e. 18.2.2011. Proceeding taken by the trial court on 18.4.2011, 6.5.2011, 30.5.2011, 14.7.2011, 26.8.2011, 27.9.2011/ 16.11.2011, 24.12.2011/ 30.1.2012 was without notice to informant. In such circumstances, when the trial court asked the prosecution to produce the witnesses under order dated 30.3.2012, on 18.5.2012, it was the duty of the trial court to have ensured production of the informant and his witnesses. Trial court having not ensured appearance of the informant and the eye witnesses, in our opinion, the order acquitting the private respondents without examining the prosecution witnesses suffers from the vice of arbitrariness causing injustice to the prosecution. 8. Before parting with this order, we would like to notice the submission of the learned counsel for the private respondents that proviso to section 372 of the Cr.P.C. having been inserted with effect from 31.12.2009, could not have been invoked by the informant for filing this appeal, as the date of occurrence of the present case is 1.7.2003. In support of such submission, learned counsel for the appellant has relied on the judgment of the Supreme Court in the case of National Commission For Women Vrs. In support of such submission, learned counsel for the appellant has relied on the judgment of the Supreme Court in the case of National Commission For Women Vrs. State of Delhi and another, reported in (2010) 12 Supreme Court Cases 599, paragraph 8 and Division Bench judgment of this Court in the case of Smt. Ram Deni Devi & Ors. Vrs. The State of Bihar through its Chief Secretary, Old Secretariat, Patna, Bihar & Ors., reported in 2011(1) PLJR 1097 , paragraph 16. In the case of National Commission for Women (supra) Supreme Court refused to entertain the appeal filed by the National Commission for Women against the order of the High Court whereunder the accused was acquitted of the offence under Section 306 of the Penal Code and sentence imposed for conviction under Section 376 of the Penal Code reduced to the period already undergone i.e. for 5 years and 6 months. In this connection, Supreme Court relied on the proviso to Section 372 inserted under Act 5 of 2009 with effect from 31.12.2009 and Section 377 of the Cr.P.C. and held that the National Commission for Women being not the aggrieved person could not have maintained the appeal against the order of the High Court acquitting the accused and reducing his sentence to period already undergone in the Supreme Court as appeal being creature of statute cannot lie under inherent power of the Court. In this connection, Supreme Court with reference to the judgment of the Supreme Court in the case of Pritam Singh Vs. The State, AIR (37) 1950 Supreme Court 169 and P.S.R. Sadhanantham Vs.Arunachalam and another,(1980) 3 Supreme Court Cases 141 observed that an appeal by a private individual can be entertained but it should be done sparingly and after due vigilance and particularly in a case where the remedy has been shut out for the victim due to mala fides on the part of the State functionaries. Under proviso to Section 372 of the Code substantive right of appeal has been provided to the aggrieved person against the order of the trial court with effect from 31.12.2009. Right of appeal being a matter of procedure proviso to Section 372 though inserted with effect from 31.12.2009 will also apply to any aggrieved person whose prosecution remained pending on 31.12.2009. Right of appeal being a matter of procedure proviso to Section 372 though inserted with effect from 31.12.2009 will also apply to any aggrieved person whose prosecution remained pending on 31.12.2009. In the instant case, First Information Report may have been lodged on 1.7.2003 much before coming into force of the inserted proviso to Section 372 but the appellant/informant is aggrieved by the order dated 24.7.2012 recording acquittal of Respondent nos. 2 to 5 without giving him information of the date fixed in the trial after 18.2.2011, he is entitled to challenge the same in Appeal by invoking the said proviso on the ground of grave injustice. The impugned order under Section 232 of the Cr.P.C. having been passed on 24.7.2012 much after coming into force of the proviso, the proviso being in the nature of procedural law will be applicable to the case of the appellant. In view of our discussion above, reliance placed by the counsel for the Respondent nos. 2 to 5 on the Division Bench judgment of this Court in the case of Smt. Ram Deni Devi and others, paragraph 16 (supra) appears to be misconceived, as in the said judgment Division Bench held that the impugned notification in so far as it confers power of investigation upon the police officers below the rank of Deputy Superintendent of Police is valid. Its operation with retrospective effect is also valid to the extent that any offence committed prior to the date of impugned notification can, after the date of the impugned notification, be investigated by a police officer who has been vested with the power of investigation though he may be of the rank below the rank of Deputy Superintendent of Police. In the instant case, proviso to Section 372 of the Cr.P.C. is not being made applicable with retrospective effect as invoking the proviso appellant has challenged the order dated 24.7.2012 which has been passed much after the insertion of the proviso. 9. In the light of our findings above, order of the trial court dated 24.7.2012 is set aside with direction to the informant, his witnesses and Respondent nos. 2 to 5 to appear in the court below on 02.04.2013 (the date agreed by the counsel for the parties) when the court below shall proceed to examine these witnesses on day to day basis. 2 to 5 to appear in the court below on 02.04.2013 (the date agreed by the counsel for the parties) when the court below shall proceed to examine these witnesses on day to day basis. Having examined the private witnesses, the trial court with the assistance of the District Judge, Patna shall ensure appearance of the two official witnesses i.e. Investigating Officer and the Doctor. The examination of the Investigating Officer and the Doctor should also be concluded within one month from the date of conclusion of the examination of the aforesaid eye witnesses. Having examined the eye witnesses and the official witnesses, the trial court shall resort to the provisions under Section 313 of the Cr.P.C. and grant further opportunity to the respondents to produce and examine defence witnesses and record judgment within two months from the date of conclusion of the proceeding under Section 313 of the Cr.P.C. 10. The respondents should appear in the court below on 02.04.2013, failing which they should be treated as absconder. 11. This appeal is, accordingly, allowed. 12. The lower court records be sent down immediately along with this order.