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2014 DIGILAW 1255 (JHR)

Shambhu Ram v. State of Jharkhand

2014-12-12

AMITAV K.GUPTA

body2014
ORDER 1. Both the revision applications have been directed against the order dated 16.2.2004 passed in S.T. No. 8 of 2002 by the Additional Sessions Judge, (F.T.C. III), Garhwa whereby the petitioners have been arrayed as accused under Section 319 of Cr. P.C. and non-bailable warrant of arrest was ordered to be issued against the petitioners except the petitioner-Kuldeep Narayan Singh, for securing their appearance to face the trial for the charges under Sections 148, 147, 307/149, 323, 326 and 302 of the Indian Penal Code. 2. Brief facts of the case as narrated in the fardbeyan of Suneshwar Baitha is that he is the Panchayat Sewak in Manjhiaon Block Office. It is stated that on 10.12.2000 a meeting was held which was presided over by Ramchandra Ram, BSP leader, and Shambhoo Ram, Sahbir Ram, Harihar Ram, Chunmun Baitha, Lal Bahadur Baitha, Udai Baitha, Ramprit Baitha, Rajeshwar Baitha, Bachu Baitha, Charitra Ram, Ajay Kumar Mehta, Bhola Mehta, Prem Mehta, Ram Pravesh Mehta, Harihar Mehta, Nanu Mahto and others had participated in the said meeting which was convened to discuss and ascertain as to who had murdered Kameshwar Baitha, the brother of the informant. After conclusion of the meeting, three persons namely Bachnu Baitha, Ajay Mehta and Ram Pravesh Baitha came to the informant and threatened to kill him alleging that he had committed the murder of Kameshwar Baitha. Thereafter at about 8:50 P.M. he saw fourteen persons namely Ajay Mehta, Kuldeep Mehta, Prem Mehta, Bhola Mehta, Gopa Mehta, Shahbir Mahra, Uday Baitha, Rajeshwar Baitha, Harihar Ram, Charitar Chamar, Bachanu Baitha, Vijay Baitha, Shambhu Ram variously armed with garasa, tangi, bhujali, lathi along with 15-20 persons who came to his house and ordered him to come out of the house and someone stated that Suneshwar should be killed. He somehow managed to enter and shut the door of his house but one of the accused gave a lathi blow from behind. He raised an alarm whereupon his brother Premdas Baitha came there and at that time Ajay Mehta, Prem Mehta and Bhola Mehta assaulted his brother with tangi as a result of which, he fell down and other accused persons also assaulted his brother. In the meantime, police party came to the place of occurrence and the accused persons fled away. His brother, Premdas Baitha was brought to the hospital where he died in course of treatment. In the meantime, police party came to the place of occurrence and the accused persons fled away. His brother, Premdas Baitha was brought to the hospital where he died in course of treatment. The informant stated that he and his wife had seen the whole occurrence from the window of their house. 3. On the fardbeyan the F.I.R. was drawn against all the accused persons and after investigation police submitted charge-sheet showing 13 accused as not sent up under column 2 of the charge-sheet. On the basis of charge-sheet the C.J.M. found prima facie involvement of three accused and committed the case to the Court of Sessions. Three accused namely Prem Kumar Mehta, Ram Parvesh Mehta and Ajay Kumar Mehta were put to trial. In course of trial the witnesses were examined and they disclosed the name of the above petitioners. 4. Learned counsel for the petitioners has submitted that the impugned order has been passed without appreciating the settled legal position of Section 319 of the Cr. P.C. He has cited the case of Babubhai Bhimabhai Bokhiria and Another vs. State of Gujarat and Others, 2014 AIR SCW 2152: 2014 (2) JLJR (SC) 271 and argued that in the said case the ratio laid down by the 5 Judge Bench of the Hon'ble Supreme Court in the case of Hardeep Singh vs. State of Punjab and Others, (2014) 3 SCC 92 : 2014 (2) JLJR (SC) 385 was considered, in which, the Apex Court while discussing the provisions of Section 319 of the Cr. P.C. has held that the power envisaged under the aforesaid section is a discretionary and an extraordinary power and has to be exercised sparingly and only in those cases, where the circumstances of the case, so warrant, on strong and cogent evidence brought before the Court during trial. It has been submitted in the case of Babubhai Bhimabhai Bokhiria (supra), it is observed and held that such evidence requires more than mere probability of complicity and the test which is required to be applied is more than a prima facie case as exercised at the time of framing of charge but short of satisfaction to an extent that evidence, if not rebutted, would lead to conviction. Relying on the aforesaid ratio, learned counsel for the petitioner has submitted that there is no averment by the informant in the F.I.R. that the petitioner-Kuldeep Narayan Singh had indulged in any overt act and there is no specific allegation of assault against these petitioners. It has further been submitted that the informant during trial has made embellishment and improvement in his statement vis-a-vis his statement in F.I.R. by alleging that the petitioner-Kuldeep Narayan Singh was leading the mob and exhorting to assault assuring them that he would handle the situation, as he was an Advocate. It is argued that the charge-sheet under Section 173(2) of the Cr. P.C. was laid and the petitioner was shown in column No. 2 but the informant never lodged any protest petition neither did he file any revision/appeal or challenged the order of cognizance. That at a belated stage in course of trial the witnesses have named the petitioner with an intent and purpose to seek revenge as the petitioner-Kuldeep Narayan Singh, as an Advocate, had appeared in cases against the informant. On the above grounds, it has been contended that the impugned order is not in accordance with settled legal position and has been passed without appreciating or considering the material embellishment and improvement and vague testimony of the witnesses. That the impugned order is fit to be set aside. 5. Mr. Pankaj Kumar, learned A.P.P. assisted by Mr. R.P. Sharma, learned counsel for the informant, has submitted that in the case of Hardeep Singh (supra) referred to by the learned counsel for the petitioners, it would be abundantly clear that the court is empowered under Section 319 of the Cr. P.C. to summon any person against whom the police has submitted final form under Section 169 of the Cr. P.C. that in the instant case, final form was not submitted rather the charge-sheet was submitted under Section 173(2) of the Cr. P.C. showing the petitioners as not sent up under Column-2 that in the case of Dharampal (2014) 3 SCC 306 tile Hon'ble Supreme Court has held that in a session trial case the Magistrate can take cognizance only on the basis of charge-sheet. That after the case is committed to the Sessions Court then as a court of original jurisdiction, the Sessions Court under Section 193 of the Cr. That after the case is committed to the Sessions Court then as a court of original jurisdiction, the Sessions Court under Section 193 of the Cr. P.C. after perusal of the record can summon a person who has not been charge-sheeted or whose name figures in Column-2 of the charge-sheet; that the Judicial Magistrate or a Sessions Court can exercise the power under Section 319 of the Cr. P.C. for summoning any person in course of trial if the evidence is laid showing the involvement of a person in the alleged offence. That in the instant case it is evident from the impugned order that the trial court has considered the evidence of P.W.2-Rajmati Devi, wife of the informant, P.W.3-Suneshwar Baitha, informant, P.W.5-Sangita Kumari, nephew of the informant, and P.W.6-R.P. Baitha, who have named the petitioners as the members of the mob along with the petitioner-Kuldeep Narayan Singh who have been named in the F.I.R. The informant is injured witness and his brother, the deceased, Prem Das sustained multiple incised injuries meaning thereby that he was assaulted by several persons. The trial court after discussing the evidence found the complicity of the petitioners in the alleged offence, and the case has been registered under Sections 147, 148, 149, 323, 307, 326 and 302 of the Indian Penal Code. The witnesses in their testimony have named the petitioners as the members of the mob who attacked the informant's house and assaulted his brother (since deceased). The evidence on record shows that these petitioners had a common object to commit the crime. 6. Heard. It is settled legal position as held by the Hon'ble Supreme Court in the case of Hardeep Singh (supra) wherein the provisions of Section 319 of the Cr. P.C. were examined after referring to and discussing the ratio laid down in a catena of decisions. It was observed that the doctrine judex damnature cum nocens absalvitur (Judge is condemned when guilty is acquitted) is the firmament for invoking the power under Section 319 Cr. P.C. All that is required for exercise of power under Section 319 Cr. P.C. is that it must appear to the Court that some other person who is not facing the trial, may also have been involved in the offence and the basis can be the evidence appearing in examination-in-chief. In other words, the power under Section 319 of the Cr. P.C. is that it must appear to the Court that some other person who is not facing the trial, may also have been involved in the offence and the basis can be the evidence appearing in examination-in-chief. In other words, the power under Section 319 of the Cr. P.C. can be exercised even at the stage of completion of examination-in-chief and it is not required for the Court to wait till the said evidence is tested on the anvil of cross-examination. It is the satisfaction of the Court which is reflected in the reasons assigned by the Court regarding the complicity of the other persons not facing the trial. The court has to see whether the materials brought on record reasonably connect the accused with the offence. It is settled proposition of law that a person who is not named in F.I.R. or the charge-sheet or who is named in the F.I.R. but his name appears in Column (2) of the charge-sheet and has not been summoned as an accused in exercise of the powers under Section 193 of the Cr. P.C. can still be summoned by the Court, provided the Court records its satisfaction that the conditions stipulated in the statutory provisions are established. It is well settled that the comprehensive meaning of evidence used in the statute of Section 319 of the Cr. P.C. should be understood as the evidence defined under Section 3 of the Evidence Act and includes the statement of the witnesses that are recorded during trial. The degree of satisfaction required for invoking the power under Section 319 of the Cr. P.C. has been deliberated upon and it has been held that degree of satisfaction under Section 319 of the Cr. P.C. is much stricter than the satisfaction required at the time of taking cognizance or framing charge and a higher standard has been settled for the purpose of satisfaction for invoking the jurisdiction under Section 319 of the Cr. P.C. The said legal position has also been adhered to in the case of Babubhai Bhimabhai Bokhiria (supra) cited and relied upon by the petitioner. P.C. The said legal position has also been adhered to in the case of Babubhai Bhimabhai Bokhiria (supra) cited and relied upon by the petitioner. In the aforesaid decision reference has been made to Para-99 of Hardeep Singh (supra) judgment, which reads as follows:- "Thus, we hold that though only a prima facie case is to be established from the evidence led before the court not necessarily tested on the anvil of cross-examination, it requires much stronger evidence than mere probability of its complicity. The test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes un-rebutted, would lead to conviction. In the absence of such satisfaction the court should refrain from exercising power under Section 319 Cr. P.C." It is evident from the recital in the F.I.R. that the petitioners are named as accused and the Court has appreciated and considered the evidence of the witnesses namely P.Ws. 2, 3, 5 and 6 who are eye witnesses. The witnesses have named all the petitioners as the members of the mob who had participated in the crime on the date of occurrence. The trial court has recorded its satisfaction on cogent evidence and ordered for arraying the petitioners as accused accordingly ordered issuance of non-bailable warrant of arrest to secure their presence for facing trial for the charges as mentioned in the impugned order. 7. In view of the discussion made and the evidence on record, the impugned order does not warrant any interference by this Court. 8. In the result, the revision application stands dismissed.