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2016 DIGILAW 286 (HP)

Yog Raj @ Kaku v. State of Himachal Pradesh

2016-03-18

RAJIV SHARMA

body2016
JUDGMENT : Rajiv Sharma, J. Since common facts and circumstances are involved in both the petitions, same were taken up together for hearing and are being disposed of by this common judgment. 2. “Key facts" necessary for the adjudication of the present petitions are that an FIR was registered under Section 279 IPC with Police Station, Suni. However, during the course of investigation, Yog Raj alongwith co-accused Vikas Verma was taken into custody by the police for commission of offence under Section 304 and 201 read with Section 34 IPC and Section 25 of the Arms Act. Police filed final report under Section 173 CrPC before JMIC (VII) Shimla on 22.3.2015. According to the prosecution case, accused Vikas Verma killed Harish Sharma on 18.12.2014 by gunshot when they had gone on hunting on the fateful day. Thereafter, Yog Raj was called by Vikas Verma and the dead body was disposed of by Vikas Verma with the assistance of Yog Raj. Hitesh Kumar, brother of the deceased (Harish Sharma), moved an application under Section 173(8) read with Section 193 CrPC with a prayer to take cognizance under Sections 302 and 382 IPC instead of 304 IPC. Learned Additional Sessions Judge allowed the application on 15.7.2015. Accused were charged for commission of offence under Section 302 IPC instead of under Section 304 IPC as per police report. It is in these circumstances, these petitions have been filed assailing Order dated 15.7.2015 passed by learned Additional Sessions Judge (II), in Sessions Case No. 14-S/07 of 2015. 3. I have heard the learned counsel for the parties and also gone through the record carefully. 4. Case of the prosecution is that the complainant Kanshi Ram, on 19.12.2014, at about 7.45 AM, at place Mungna, while going on morning walk had detected one vehicle stranded nearby river Sutlej. He reported the matter to the police. Dead body could not be traced. Vehicle No. HP62B-0303 was taken into custody. FIR No.65 of 2014 dated 19.12.2014 under Section 279 IPC was lodged with Police Station Suni. During the course of investigation, one shoe mark of ‘Adidas’ containing blood stains was recovered on the spot. Shoe was identified to be belonging to one Sh. Harish Sharma, who could not be traced out alive or dead. It was revealed during investigation that Harish Sharma alongwith Vikas and Kaku had gone to the nearby forest for hunting. During the course of investigation, one shoe mark of ‘Adidas’ containing blood stains was recovered on the spot. Shoe was identified to be belonging to one Sh. Harish Sharma, who could not be traced out alive or dead. It was revealed during investigation that Harish Sharma alongwith Vikas and Kaku had gone to the nearby forest for hunting. Hitesh, one of the witnesses, raised suspicion that accused persons namely Vikas and Kaku had murdered Harish. Penal Section 279 IPC was substituted with Sections 304 and 201 read with Section 34 IPC alongwith Arms Act. It was also revealed during investigation that deceased suffered firearm injury. Deceased was put inside the vehicle and thrown into river Sutlej. All the incriminating circumstances were collected. On closure of investigation, investigating agency filed final report under Section 173 Cr.P.C. under Sections 304, 201 and 34 IPC alongwith Section 25 of the Arms Act. Final report was produced before JMIC (VII). Same was assigned by the order of learned Sessions Judge, after committal to the learned Additional Sessions Judge (II), Shimla. 5. An application under Section 173 (8) read with Section 193 Cr.P.C. was filed by Hitesh Kumar, brother of the deceased with a prayer to take cognizance of offence under Section 302 IPC instead of Section 304 IPC. It was also prayed, in the alternative, that directions be issued for further investigation of the case. Prosecution has not resisted the application. Application was allowed by the learned Additional Sessions Judge (II), Shimla on 15.7.2015. Case was fixed for framing of charge on 30.7.2015. According to the learned Additional Sessions Judge, there were sufficient grounds for framing charge against accused persons under Section 302 instead of Section 304 IPC. 6. Question raised in these petitions is no more res integra in view of the law laid down by their lordships of the Hon'ble Supreme Court in State of Gujarat v. Girish Radhakrishnan Varde reported in (2014) 3 SCC 659 . Their Lordships have held that in cases based on FIR lodged before Police, correct stage for addition or subtraction of Sections will have to be determined at the time of framing of charge. Their Lordships have held that in cases based on FIR lodged before Police, correct stage for addition or subtraction of Sections will have to be determined at the time of framing of charge. Their lordships have further held that the affected parties have to apprise themselves that if a case is registered under Section 154 Cr.P.C. by the police based on the FIR and the charge-sheet is submitted after investigation, obviously the correct stage as to which sections would apply on the basis of the FIR and the material collected during investigation culminating into the charge-sheet, would be determined only at the time of framing of charge before the appropriate trial Court. Magistrate, in a case which is based on a police report, cannot add or subtract sections at the time of taking cognizance as the same would be permissible by the trial court only at the time of framing of charge under Sections 216, 218 or under Section 228 Cr.P.C., as the case may be, which means that after submission of the charge-sheet it will be open for the prosecution to contend before the appropriate trial Court at the stage of framing of charge to establish that on the given state of facts the appropriate sections which according to the prosecution should be framed can be allowed to be framed. Simultaneously, the accused also has the liberty at this stage to submit whether the charge under a particular provision should be framed or not and this is the appropriate forum in a case based on police report to determine whether the charge can be framed and a particular section can be added or removed depending upon the material collected during investigation as also the facts disclosed in the FIR and the charge-sheet. Their lordships have held as under: “13. But the instant matter arises out of a case which is based on a police report as a first information report had been lodged before the police at Deesa Police Station under Section 154 of the Cr.P.C. and, therefore, the investigation was conducted by the police authorities in terms of procedure prescribed under Chapter XII of the Cr.P.C. and thereafter chargesheet was submitted. At this stage, the Chief Judicial Magistrate after submission of the chargesheet appears to have entertained an application of the complainant for addition of three other sections into the chargesheet, completely missing that if it were a complaint case lodged by the complainant before the magistrate under Section 190 (a) of the Cr.P.C., obviously the magistrate had full authority and jurisdiction to conduct enquiry into the matter and if at any stage of the enquiry, the magistrate thought it appropriate that other additional sections also were fit to be included, the magistrate obviously would not be precluded from adding them after which the process of cognizance would be taken by the magistrate and then the matter would be committed for trial before the appropriate court. 14. But if a case is registered by the police based on the FIR registered at the Police Station under Section 154 Cr.P.C. and not by way of a complaint under Section 190 (a) of the Cr.P.C. before the magistrate, obviously the magisterial enquiry cannot be held in regard to the FIR which had been registered as it is the investigating agency of the police which alone is legally entitled to conduct the investigation and, thereafter, submit the chargesheet unless of course a complaint before the magistrate is also lodged where the procedure prescribed for complaint cases would be applicable. In a police case, however after submission of the chargesheet, the matter goes to the magistrate for forming an opinion as to whether it is a fit case for taking cognizance and committing the matter for trial in a case which is lodged before the police by way of FIR and the magistrate cannot exclude or include any section into the chargesheet after investigation has been completed and chargesheet has been submitted by the police. 15. The question, therefore, emerges as to whether the complainant/informant/prosecution would be precluded from seeking a remedy if the investigating authorities have failed in their duty by not including all the sections of IPC on which offence can be held to have been made out in spite of the facts disclosed in the FIR. 15. The question, therefore, emerges as to whether the complainant/informant/prosecution would be precluded from seeking a remedy if the investigating authorities have failed in their duty by not including all the sections of IPC on which offence can be held to have been made out in spite of the facts disclosed in the FIR. The answer obviously has to be in the negative as the prosecution cannot be allowed to suffer prejudice by ignoring exclusion of the sections which constitute the offence if the investigating authorities for any reason whatsoever have failed to include all the offence into the chargesheet based on the FIR on which investigation had been conducted. But then a further question arises as to whether this lacunae can be allowed to be filled in by the magistrate before whom the matter comes up for taking cognizance after submission of the chargesheet and as already stated, the magistrate in a case which is based on a police report cannot add or subtract sections at the time of taking cognizance as the same would be permissible by the trial court only at the time of framing of charge under section 216, 218 or under section 228 of the Cr.P.C. as the case may be which means that after submission of the chargesheet it will be open for the prosecution to contend before the appropriate trial court at the stage of framing of charge to establish that on the given state of facts the appropriate sections which according to the prosecution should be framed can be allowed to be framed. Simultaneously, the accused also has the liberty at this stage to submit whether the charge under a particular provision should be framed or not and this is the appropriate forum in a case based on police report to determine whether the charge can be framed and a particular section can be added or removed depending upon the material collected during investigation as also the facts disclosed in the FIR and the chargesheet. 17. 17. In spite of this unambiguous course of action to be adopted in a case based on police report under Chapter XII and a magisterial complaint under Chapter XIV and XV, when it comes to application of the provisions of the Cr.P.C. in a given case, the affected parties appear to be bogged down often into a confused state of affairs as it has happened in the instant matter since the magisterial powers which is to deal with a case based on a complaint before the magistrate and the police powers based on a police report/FIR has been allowed to overlap and the two separate course of actions are sought to be clubbed which is not the correct procedure as it is not in consonance with the provisions of the Cr.P.C. The affected parties have to apprise themselves that if a case is registered under Section 154 Cr.P.C. by the police based on the FIR and the chargesheet is submitted after investigation, obviously the correct stage as to which sections would apply on the basis of the FIR and the material collected during investigation culminating into the chargesheet, would be determined only at the time framing of charge before the appropriate trial court. In the alternative, if the case arises out of a complaint lodged before the Magistrate, then the procedure laid down under Sections 190 and 200 of the Cr. P.C. clearly shall have to be followed. 18. Since the instant case is based on the FIR lodged before the police, the correct stage for addition or subtraction of the Sections will have to be determined at the time of framing of charge. 23. We, therefore, dispose of this appeal by observing and clarifying the order of the High Court to the extent that the appellant State of Gujarat shall be at liberty to raise all questions relating to additions of the Sections on the basis of the FIR and material collected during investigation at the time of framing of charges by the Trial Court since the matter arises out of a police case based on the FIR registered under Section 154 of Cr. P.C. and not a complaint case lodged before the Magistrate under Section 190 of the Cr. P.C. and not a complaint case lodged before the Magistrate under Section 190 of the Cr. P.C. Thus, the High Court although may be correct in observing in the impugned order that the Trial Court was not precluded from modifying the charges by including or excluding the sections at the appropriate stage during trial, it was duty bound in the interest of justice and fair play to specify in clear terms that the Trial Court would permit and consider the plea of addition of sections at the stage of framing of charge under Section 211 of Cr. P.C. since the matter emerged out of a police case and not a complaint case before the Magistrate in which event the Magistrate could exercise greater judicial discretion. Ordered accordingly.” 7. Mr. Rakesh Manta, Advocate, has relied upon a decision rendered by their lordships of the Hon’ble Supreme Court in Dharam Pal and others v. State of Haryana and another reported in (2014)3 SCC 306 . Their lordships have held that the Sessions Court has jurisdiction on committal of a case to it, to take cognizance of the offences of the persons not named as offenders but whose complicity in the case would be evident from the materials available on record. Hence, without recording evidence, upon committal under Section 209 Cr.P.C., the Sessions Judge may summon those persons shown in Column 2 of the police report to stand trial alongwith those already named therein. The instant case pertains to addition/subtraction of sections, which can be determined at the time of framing of charge. 8. Accordingly, both the petitions are allowed. Order dated 15.7.2015 passed by learned Additional Sessions Judge (II), Shimla in Sessions Case No. 14-S/7 of 2015 is set aside. Respondents are directed to raise all questions relating to addition or subtraction of sections on the basis of FIR No. 65 of 2014 and material collected during investigation at the time of framing of charge by the trial Court. 9. Since the incident has taken place on 18.12.2014, trial Court is directed to conclude the trial within six months from today. All pending applications, are also disposed of.