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2016 DIGILAW 1576 (HP)

Pritam Chand v. Naresh Kumar

2016-08-03

P.S.RANA

body2016
ORDER : P.S. Rana, J. Present petition is filed under Section 482 of the Code of Criminal Procedure 1973 for quashing charge framed against petitioners on dated 30.6.2014 under section 3 (1)(x) of Scheduled Caste/Scheduled Tribe (Prevention of Atrocities) Act 1989 and under section 323, 352, 504 read with section 34 IPC. Brief facts of the case. 2. Naresh Kumar complainant filed private criminal complaint under sections 323, 352, 504 read with section 34 IPC and under section 3 (1)(x) of Scheduled Caste/Scheduled Tribe (Prevention of Atrocities) Act 1989. It is alleged in private complaint that on dated 25.5.2012 at about 7.30 PM at village Lanjot accused persons insulted and humiliated complainant who is member of scheduled caste by raising casteist remarks within public view. It is further alleged in complaint that accused persons in furtherance of common intention used criminal force to complainant. It is further alleged in complaint that accused persons in furtherance of common attention caused hurt to complainant. It is further alleged in complaint that accused persons in furtherance of common intention caused criminal intimidation to complainant to kill him. Learned Judicial Magistrate Dharamshala recorded six witnesses of complainant in preliminary evidence. Learned Judicial Magistrate held that criminal offence under section 3 (1)(x) of Scheduled Caste/Scheduled Tribe (Prevention of Atrocities) Act 1989 is exclusively triable by the Court of Sessions. Learned Judicial Magistrate committed the case to learned Sessions Judge Kangra at Dharamshala on dated 20.2.2014. Learned Special Judge cum Sessions Judge Kangra at Dharamshala HP framed charges against accused persons on dated 30.6.2014 under section 3 (1)(x) of Scheduled Caste/Scheduled Tribe (Prevention of Atrocities) Act 1989 and under section 323, 352, 504 read with section 34 IPC. Feeling aggrieved present petition is filed by accused persons. 3. Court heard learned Advocate appearing on behalf of petitioners and learned Advocate appearing on behalf of respondent No.1 and learned Additional Advocate General appearing on behalf of respondent No.2 and also perused entire records carefully. 4. Following points arise for determination in present petition: (1) Whether petition filed under Section 482 Cr.PC is liable to be accepted as mentioned in memorandum of grounds of petition?. (2) Final Order. Findings upon Point No.1 with reasons. 5. 4. Following points arise for determination in present petition: (1) Whether petition filed under Section 482 Cr.PC is liable to be accepted as mentioned in memorandum of grounds of petition?. (2) Final Order. Findings upon Point No.1 with reasons. 5. Submission of learned Advocate appearing on behalf of petitioners that petitioners were not heard when charge was framed against accused persons and learned Trial Court has committed procedural illegality is accepted for reasons hereinafter mentioned. It is proved on record that charge against accused persons was framed on 30.6.2014 by learned Special Judge cum Sessions Judge Kangra at Dharamshala. Court has perused charge framed against accused persons on dated 30.6.2014 and court has also perused order sheets of learned Special Judge cum Sessions Judge Kangra at Dharamshala dated 30.6.2014 and 26.12.2014 which are quoted in toto. Charge dated 30.6.2014 6. That on 25.5.2012 at about 7.30 pm at Lanjot accused persons insulted and humiliated complainant a member of scheduled caste by raising casteist remarks within public view and thereby committed offence punishable under section 3(1)(x) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989 and within cognizance of this court. Secondly on aforesaid date time and place accused persons in furtherance of common intention used criminal force to complainant and thereby committed an offence punishable under section 352 read with section 34 IPC and within the cognizance of this court. Thirdly on the aforesaid date time and place accused persons in furtherance of common intention caused hurt to complainant and thereby committed an offence under section 323 read with section 34 IPC and within cognizance of this court. Lastly on the aforesaid date, time and place of occurrence accused persons in furtherance of common intention caused criminal intimidation to complainant to do away with his life and thereby committed an offence punishable under section 506 read with section 34 IPC and within the cognizance of this court. And I hereby direct that accused be charged for aforesaid offences. Sd/- Dated: 30.6.2014. Special Judge. Kangra at Dharamshala. 7. Order sheet dated 30.6.2014 30.6.2014 Present: Mr.Vipul Sharma, PP for the State. Complainant is also present in persons. Accused persons with Sh.Dheeraj Lagwal Advocate. For furnishing of bail bonds on 10.7.2014. Sd/- Special Judge Kangra at Dharamshala. 8. Order sheet dated 26.12.2014. 26.12.2014 Present: Sh.Vipul Sharma PP for the State. All accused are in person with counsel Sh Dheeraj Lagwal. Order sheet dated 30.6.2014 30.6.2014 Present: Mr.Vipul Sharma, PP for the State. Complainant is also present in persons. Accused persons with Sh.Dheeraj Lagwal Advocate. For furnishing of bail bonds on 10.7.2014. Sd/- Special Judge Kangra at Dharamshala. 8. Order sheet dated 26.12.2014. 26.12.2014 Present: Sh.Vipul Sharma PP for the State. All accused are in person with counsel Sh Dheeraj Lagwal. The case is for consideration of charge. Learned counsel for accused has submitted that he had filed an application under section 294 Cr.PC for seeking permission of this court for placing on record some documents and that he had filed such application on 30.6.2014 but order dated 30.6.2014 shows that no such application along with documents stood filed. However said application and documents have been found placed on the file. Before any appropriate order is passed on this application it is required that copy of this application along with documents are supplied by accused to learned PP for the State so as to file reply to this application. Copy of said application along with copies of documents have been given by learned counsel for the accused to learned PP for the State. Learned PP is directed to file reply to application on 27.2.2015. 9. It is held that orders of learned Special Judge Kangra at Dharamshala dated 30.6.2014 and dated 26.12.2014 are contradictory ipso facto in nature. As per record charge was framed against accused persons on 30.6.2014 but order sheet dated 30.6.2014 did not reflect that accused persons were heard upon framing of charge on 30.6.2014. On the contrary as per order sheet dated 26.12.2014 case was listed for consideration of charge. 10. It is well settled law that as per section 228 of the code of criminal procedure 1973 before framing charge court is under legal obligation to peruse the record of case, documents annexed therewith and after hearing submissions of accused and complainant in private complaint and prosecution in case filed by State upon charge relating to criminal offence and if judge is of opinion that there are grounds for presuming that accused committed criminal offence then charge should be framed. In the present case there is no order of learned Special Judge cum Sessions Judge Kangra at Dharamshala that learned Judge heard submissions of accused persons and complainant or prosecution before framing of charge and that learned Judge was of opinion that there are grounds for presuming that accused persons have committed criminal offence. It is held that learned Special Judge cum Sessions Judge Kangra at Dharamshala has committed procedural illegality in the present case. See AIR 1979 SC 366 title Union of India Vs. Prafulla Kumar Samal and another. See AIR 1980 SC 52 title Supdt. & Remembrancer of Legal Affairs West Bengal Vs. Anil Kumar Bhunja and others. See AIR 1977 SC 2018 title State of Bihar Vs. Ramesh Singh. 11. Submission of learned Advocate appearing on behalf of co-respondent No.1 and learned Additional Advocate General appearing on behalf of State that learned Special Judge cum Sessions Judge Kangra at Dharamshala did not commit any procedural illegality is rejected being devoid of any force for reasons hereinafter mentioned. Procedural illegality on the part of learned Special Judge is writ large in present case. No explanation is given as to how the case was again listed for consideration upon charge on dated 26.12.2014 by learned Special Judge cum Sessions Judge Kangra when charge was already framed by learned Special Judge cum Sessions Judge Kangra at Dharamshala on dated 30.6.2014 in the present case. It is well settled law that accused has statutory legal right of hearing upon framing of charge. In view of above stated facts point No.1 is answered in affirmative. Point No.2 (Final Order). 12. In view of findings on point No.1 petition is allowed. Order of learned Special Judge cum Sessions Judge Kangra at Dharamshala dated 30.6.2014 relating to framing charge is set aside and case is remitted back to learned Special Judge cum Sessions Judge Kangra at Dharamshala with direction to peruse the record of case and documents annexed there and hear submissions of accused persons and complainant and prosecution and thereafter pass afresh order relating to framing of charge against accused persons in accordance with law forthwith. File of learned Special Judge cum Sessions Judge Kangra at Dharamshala be sent back forthwith along with certified copy of order. Parties are directed to appear before learned Special Judge cum Sessions Judge Kangra at Dharamshala on 29.8.2016. Cr. MMO No 267 of 2015 is disposed of. File of learned Special Judge cum Sessions Judge Kangra at Dharamshala be sent back forthwith along with certified copy of order. Parties are directed to appear before learned Special Judge cum Sessions Judge Kangra at Dharamshala on 29.8.2016. Cr. MMO No 267 of 2015 is disposed of. All pending applications if any are also disposed of.