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2014 DIGILAW 473 (PAT)

Kausar Imam Hashmi v. State of Bihar

2014-04-21

RAKESH KUMAR

body2014
JUDGMENT : RAKESH KUMAR, J.:–Three petitioners, invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, have prayed for quashing of an order dated 03.07.2004 passed by the learned 2nd Addl. Sessions Judge, Darbhanga in Sessions Trial No. 326/99. By the said order, the learned Sessions Judge has rejected the petition filed under Section 227 of the Code of Criminal Procedure for discharge of the petitioners. 2. short fact of the case is that on the basis of fardbeyan of one Ram Pukar Chaudhary, an F.I.R. vide Bishanpur P.S. Case No.58 of 1994 was registered for the offence under Sections 148,149,307, 302 of the Indian Penal Code and Section 27 of the Arms Act. In the fardbeyan, recorded in D.M.C.H. Darbhanga, the informant in injured condition disclosed that while he along with other co-villagers was returning with their cattle, accused persons, who were F.I.R. named accused along with 10-12 unknown accused persons surrounded the informant and others. On trivial issue, the petitioner no.1 and petitioner no.2, namely, Kausar Imam Hashmi and Qamar Hashmi after abusing the informant and others exhorted for killing the informant. On the order being given by petitioner nos.1 and 2, petitioner no.3 and one another accused, who was named in the F.I.R., namely, Shakil Hashmi fired from their guns. The informant received gun-shot injury by the petitioner no.3, whereas one Ram Kripal Choudhary received gun-shot injury by firing opened by co-accused Shakil Hashmi. In the said occurrence, other accused also fired. Number of accused persons were armed with Garasa and Bhala. In such indiscriminate firing, one passersby, namely, Kailashpati Chaudhary also received fire-arm injury. In the said occurrence, besides the informant others also received injuries. In the occurrence, one person died and number of other persons, who received injury, were carried to hospital. At the time of charge, petition was filed for discharge on behalf of the petitioners mainly on the plea of alibi beside other grounds. 3. The learned 2nd Addl. Sessions Judge after hearing the parties and considering the case diary, assigning detailed reason, by its order dated 03.07.2004 rejected the discharge petition, which has been assailed in the present petition. It is true that during investigation, some of the witnesses had supported the plea of alibi, but number of witnesses, even injured witnesses had made specific accusation against the petitioners. The learned 2nd Addl. It is true that during investigation, some of the witnesses had supported the plea of alibi, but number of witnesses, even injured witnesses had made specific accusation against the petitioners. The learned 2nd Addl. Sessions Judge in its order dated 03.07.2004 has given a vivid picture of occurrence and with sound reason has rejected the discharge petition. It would be relevant to incorporate the said order dated 03.07.2004, which is as follows:— “3.7.04: Petition dated 15.06.2002 filed by accused Kaushar Imam Hashmi, Quamar Imam Hashmi and Ambar Imam Hashmi under Section 227 of the Cr.P.C. Put up for orders. I have already heard the learned counsel for the petitioners and the learned Public Prosecutor for the State. The learned counsel appearing on behalf of the petitioners submitted that the petitioners were not sent up by the police to face trial and their names figures in column 2 of the chargesheet which is meant for not sent up accused. The learned counsel submitted that the petitioners have been summoned to face trial vide order dated 7.9.96 passed by learned Addl. C.J.M. Darbhanga whereby the learned A.C.J.M. Darbhanga differed with the police report and summoned the petitioners to face trial in the instant case in which the chargesheet has been submitted under Sections 147, 148, 149, 307, 302 I.P.C. read with 27 Arms Act. According to the learned counsel the summoning of the petitioners by the A.C.J.M. is itself illegal as the instant case was exclusively triable by the court of sessions and the court below has no jurisdiction to summon the petitioners, when they were not sent up for trial by the police. The learned counsel appearing for the petitioners submits that in such circumstances only court of Sessions under section 319 Cr.P.C. could have summoned them and as their summoning in the case as accused by A.C.J.M., is completely illegal and without jurisdiction they are entitled to be discharged. The learned counsel to substantiate his plea relied upon decisions reported in 1996 SCC (Crl) 772 Raj Kishore Prasad Vs. State of Bihar, 1998 SCC (Crl) 1554 Ranjeet Singh Vs. State of Punjab, 2000(3) East Criminal Cases 616 Kishore Singh Versus State of Bihar. The learned counsel to substantiate his plea relied upon decisions reported in 1996 SCC (Crl) 772 Raj Kishore Prasad Vs. State of Bihar, 1998 SCC (Crl) 1554 Ranjeet Singh Vs. State of Punjab, 2000(3) East Criminal Cases 616 Kishore Singh Versus State of Bihar. The other contention of the learned counsel for the petitioners is that the commitment of the case itself is illegal because of the fact that the record was not posted for commitment on the date when the order of commitment was passed. The last contention of the learned counsel appearing on behalf of the petitioners is that the police during course of investigation examined number of witnesses in paragraphs 59 to 81 and 94,95,106, 109, 112 to 118 who have proved the alibi of the petitioners and according to the learned counsel this alibi of the petitioners was verified by the Dy.S.P. in his supervision report was opined that implication of these petitioners in the case is false and in view of this categorical findings of police regarding alibi the petitioners should not be put on trial and they are entitled to be discharged. The learned Public Prosecutor appearing on behalf of the State opposes the prayer for discharge and submitted that the petitioners are named accused of the instant case which has been registered under Section 302 I.P.C. along with allied sections and the allegations against the petitioner no.1 and 2 is that they exhorted the petitioner no.3 to kill and on this exhortion petitioner no.3 fired from his gun causing injuries to the informant. The learned P.P. further submitted that co-accused Shakeel Hashmi fired at Ram Kripal Choudhary causing injuries which proved to be fatal. The learned P.P. by referring paragraphs 5,6,7,8,11,12,13,14 points out that these witnesses are injured witnesses of the case and they all have supported the statements of the informant and named these three petitioners as accused of the case. The learned P.P. further points out that witnesses examined in paras 41,44,45,46 have also stated about the implication of the accused . By referring paragraphs 90 and 91 of the case diary the learned P.P. submits that these witnesses are although not eye witnesses of the occurrence but they have stated about the complicity of the accused persons. The learned P.P. further points out that witnesses examined in paras 41,44,45,46 have also stated about the implication of the accused . By referring paragraphs 90 and 91 of the case diary the learned P.P. submits that these witnesses are although not eye witnesses of the occurrence but they have stated about the complicity of the accused persons. The learned P.P. fairly concedes the fact that there are witnesses in the case diary who have stated about the presence of the accused persons at Darbhanga at the time of alleged occurrence but according to the learned P.P. their statements cannot be considered at this stage of the case. Their statements are in form of defence plea of these petitioners and at the stage of framing of charge the plea of defence cannot be considered. Regarding the illegality of the impugned order and commitment proceeding the learned P.P. submitted that these matters which has been set at rest by the superior courts cannot be agitated at this stage and on these grounds the petitioner cannot claim discharge. So far as the supervision note of the Dy. S.P. is concerned the learned P.P. Submits that it is opinion of supervising officer and it cannot ground to discharge the accused persons specially in view of the fact that there is categorical statements of number of witnesses in the case which shows the complicity of the petitioners in the alleged offence. The learned P.P. lastly contends that the law in this regard is very clear that even a grave suspicion is sufficient to frame charge and in the present case what to talk of suspicion there is ample material in case record which points out the complicity of the petitioners in the alleged offences, as such they should be charged for the alleged offences and their petition for discharge should be rejected oughtright. Perused the records of the case. From perusal of the records it appears that on the fardbeyan of one Rampukar Choudhary Bishanpur P.S. Case No.58/94 under Sections 147,148,149, 307/302 I.P.C. read with 27 Arms Act was instituted against 13 named accused persons including these three petitioners. The brief allegation against petitioner no.1 and 2 is that they instigated other accused persons to kill the prosecution party members and there upon petitioner no.3 and co-accused Shakeel Hashmi fired from their respective guns. The brief allegation against petitioner no.1 and 2 is that they instigated other accused persons to kill the prosecution party members and there upon petitioner no.3 and co-accused Shakeel Hashmi fired from their respective guns. The shot fired by petitioner no.3 hit the informant and the shot fired by Shakeel Hashmi hit Ram Kripal Choudhary. The other accused persons thereafter assaulted the prosecution party by means of Garansa and Bhala. It has been further alleged that on hearing the gun shot fire the villagers came and saw the accused decamping from the place of occurrence and villagers brought the injured to D.M.C.H. where Ram Kripal Choudhary was declared dead. The police during course of investigation recorded statements of witnesses. In para-5 of the case diary statement of informant injured Ram Kumar Choudhary para-6 injured Ravindra Choudhary, para-7 injured Sanjeet Kumar Chaudhary, para-8 injured Harishankar Choudhary, para-11 injured Pankaj Kumar Chaudhary, para-12 injured Sanjeev Kumar Chaudhary, para-13 injured Vinay Kumar Chaudhary was recorded. All these witnesses have stated about the complicity of these petitioners. The witnesses examined in para-41 is a hearsay witness, who went to the place of occurrence after hearing sound of firing and found injured persons there and he has also stated the complicity of the accused persons. The witnesses examined in paras 42,43,44, 45, 46 are all hearsay witnesses who reached after the occurrence and found the injured at the place of occurrence. The postmortem examination report of deceased Ram Kripal Choudhary has been mentioned in para 54 of the case diary which shows that the deceased sustained fire arms injuries. In para-56 the Investigating Officer received an application from Ramakant Chaudhary President District Union of Janta Party and Vijay Kant Thakur of Communist Party mentioning therein that these petitioners were not present at the place of occurrence at the time of alleged occurrence. The Investigating Officer in para-59 to 81 recorded statements of number of Advocates of Darbhanga Civil Court which shows that at the alleged time of occurrence the petitioners who are practising advocates of Civil Court at Darbhanga were present at their respective residence or Chambers or chambers of their seniors. The witnesses who have been examined in paras 94 and 95 are residents of P.O. village who have stated that all these petitioners are Advocates and in connection with their profession they reside at Darbhanga and not at village- Bashant. The witnesses who have been examined in paras 94 and 95 are residents of P.O. village who have stated that all these petitioners are Advocates and in connection with their profession they reside at Darbhanga and not at village- Bashant. The statement of witnesses recorded in paras 112 to 118 also mentions that these petitioners were at Darbhanga at the alleged time of occurrence. On the basis of aforesaid statements the Dy. S.P. while supervising the case opined that the petitioners are not involved in the offences. The injury reports of the injured persons has been mentioned in para 143 of the case diary which shows that injured persons sustained injuries by fire arm. The Investigating officer on the basis of aforesaid materials collected during course of investigation submitted chargesheet against ten accused persons showing these petitioners as not sent up accused because they were found to be innocent during course of investigation. It appears from the records that after chargesheet was submitted the informant filed a petition in the court below to hear him on the point of cognizance on 11.11.94. The court below vide order dated 7.9.96 took cognizance of the offence against all the named accused persons of the chargesheet including the petitioners and directed issuance of summons to these petitioners along with other accused persons and in due course vide order dated 29.7.99 the court below committed the case to the court of sessions and on transfer from various courts it was received in my file. So far as the first contention of the petitioners is concerned that the order of very summoning is illegal and bad, from perusal of the record it appears that initially these petitioners challenged their summoning order under revisional jurisdiction before learned District and Sessions Judge, Darbhanga in Cr. Revision No.530/96 which was dismissed by the learned 1st Addl. Sessions Judge, Darbhanga. Against that order the petitioners filed a Cr.Misc. No.10349 of 98 before the Hon’ble High Court which too was dismissed. So as the question of summoning has been decided by Hon’ble Court I think at this stage the petitioners cannot re-agitate the matter. The other contention regarding illegality of commitment order has also got no force because of the fact that merely no specific date was fixed for commitment the order cannot be said to be illegal. So as the question of summoning has been decided by Hon’ble Court I think at this stage the petitioners cannot re-agitate the matter. The other contention regarding illegality of commitment order has also got no force because of the fact that merely no specific date was fixed for commitment the order cannot be said to be illegal. The petitioners could not point out any prejudice caused to them by the order of commitment on that date. So far as alibi of these petitioners is concerned it is true that the police during course of investigation recorded statements of number of witnesses in support of alibi of the petitioners and their alibi has been found to be true during course of supervision also. The petitioners have relied upon a judgment reported in 1986 PLJR 1157 wherein the alibi of the accused persons were found to be true and learned S.D.J.M. Saraikela discharged the accused of that case and refused to take cognizance . That order of S.D.J.M. was challenged by the informant before the Hon’ble Court and Hon’ble Patna High Court (Ranchi Bench) found no illegality in the aforesaid order. But the situation here is slightly different. In the present case the court below has differed with the police report and summoned the petitioners. The court below was having ample jurisdiction in view of the law laid down in Raghubansh Dubey’s case to differ with the police report and take cognizance and that order of the court below has been found to be correct in the instant case up to Hon’ble High Court. Moreover in view of the positive evidence of the prosecution witnesses particularly injured witnesses it will not be proper to pass any remarks on the plea of alibi of these petitioners because at this stage the court is not required to sift the evidence. The plea of alibi has to be established by the defence during course of trial on the criteria laid down by Apex Court in various pronouncements and then alone the benefit of alibi can be given to these petitioners. The prosecution must also be given opportunity to disprove the plea of alibi of the petitioners during course of trial. I am of view that plea of alibi, a defence of the petitioners cannot be a ground for their discharge. The prosecution must also be given opportunity to disprove the plea of alibi of the petitioners during course of trial. I am of view that plea of alibi, a defence of the petitioners cannot be a ground for their discharge. I, therefore, find the instant petition under section 227 Cr.P.C. filed by the petitioners is devoid of any merit and it is rejected. Put up on 18.7.2004 for framing of charge. Accused on bail as before. (Dictated).” 4. In view of the fact that the learned Addl. Sessions Judge after considering the case diary and also the fact that witnesses have supported the prosecution case has rejected the discharge petition, I do not find any defect in the impugned order. Accordingly, the petition stands dismissed. In view of dismissal of this petition, interim order of stay dated 11.01.2010 stands vacated. 5. Since in this case discharge petition was rejected long back on 03.07.2004, while dismissing the present petition, it is desirable to direct the court below to proceed with the case expeditiously, so that the case may come to its logical end without unnecessary delay. While proceeding with the case, learned trial Judge is required to take up this matter at least thrice in a week. Office is directed to communicate this order to the court below forthwith for its strict compliance. ?