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2017 DIGILAW 1259 (JHR)

Mahabir Rawani v. State Of Jharkhand

2017-07-25

RONGON MUKHOPADHYAY

body2017
JUDGMENT Rongon Mukhopadhyay, J. – Heard Md. Zaid Ahmed, learned counsel for the petitioners and Mr. Rakesh Kumar, learned A.P.P. for the State. 2. This application is directed against the order dated 27.03.2017 passed by the learned Additional Sessions Judge-VII, Dhanbad in S.T. Case No. 61 of 2017 whereby and where-under in the alternative charge has been framed against the petitioners also for the offence under section 302/34 of the Indian Penal Code in connection with Madhuban P.S. Case No. 48 of 2016, corresponding to G.R. No. 3862 of 2016. 3. It has been submitted by the learned counsel for the petitioners that in a mechanical manner charge has been framed under section 302/34 of the Indian Penal Code without discussing any evidence which would suggest the involvement of the petitioners in committing an offence under section 302/34 of the Indian Penal Code. Learned counsel for the petitioners has referred to the judgment in case of Rajbir @ Raju and Another v. State of Haryana reported in (2010) 15 SCC 116 wherein it was held that it was mandatory for the learned trial court to have framed charge in the alternative under section 302 of the Indian Penal Code but the said principle was diluted in the case of Jasvinder Saini and Others v. State (Government of NCT of Delhi) reported in (2013) 7 SCC 256 and therefore the learned trial court cannot frame charge in such a manner. 4. Learned A.P.P. for the State has opposed the prayer made by the petitioners. 5. The impugned order dated 27.03.2017 seems to have been passed on the legal matrix as has been held in the case of Rajbir @ Raju and Another v. State of Haryana (Supra). However, in the subsequent judgment of the Hon''ble Supreme Court it has been categorically held that the additional charge can be framed provided there are sufficient materials evident on record to frame such charge. In explaining the case of Rajbir @ Raju and Another v. State of Haryana , the Hon''ble Supreme Court in the case of Jasvinder Saini and Others v. State (Government of NCT of Delhi) has held as follows:- "13. In explaining the case of Rajbir @ Raju and Another v. State of Haryana , the Hon''ble Supreme Court in the case of Jasvinder Saini and Others v. State (Government of NCT of Delhi) has held as follows:- "13. A reading of the order which the trial court subsequently passed on 23-2-2011 directing addition of a charge under Section 302 IPC makes it abundantly clear that the addition was not based on any error or omission whether inadvertent or otherwise in the matter of framing charges against the accused. Even the respondents did not plead that the omission of a charge under Section 302 IPC was on account of any inadvertent or other error or omission on the part of the trial court. The order passed by the trial court, on the contrary directed addition of the charge under Section 302 IPC entirely in obedience to the direction issued by this Court in Rajbir case. Such being the position when the order passed by the trial court was challenged before the High Court the only question that fell for determination was whether the addition of a charge under Section 302 IPC was justified on the basis of the direction issued by this Court in Rajbir case. The High Court has no doubt adverted to that aspect and found itself to be duty-bound to comply with the direction in the same measure as the trial court. Having said so, it has gone a step further to suggest that the autopsy surgeon''s report was prima facie evidence to show that the offence was homicidal in nature. The High Court has by doing so provided an additional reason to justify the framing of a charge under Section 302 IPC." "14. Be that as it may, the common thread running through both the orders is that this Court had in Rajbir case directed the addition of a charge under Section 302 IPC to every case in which the accused are charged with Section 304-B. That was not, in our opinion, the true purport of the order passed by this Court. The direction was not meant to be followed mechanically and without due regard to the nature of the evidence available in the case. The direction was not meant to be followed mechanically and without due regard to the nature of the evidence available in the case. All that this Court meant to say was that in a case where a charge alleging dowry death is framed, a charge under Section 302 can also be framed if the evidence otherwise permits. No other meaning could be deduced from the order of this Court." 6. Thus viewed in the context of the judgment quoted above the impugned order dated 27.03.2017 clearly reveals that the charge has been framed in the alternative under section 302/34 of the Indian Penal Code in a mechanical manner and without there being any evidence on record as none of witnesses have been examined prior to passing of the order dated 27.03.2017. 7. In such circumstances, therefore, that part of the order dated 27.03.2017 passed by the learned Additional Sessions Judge-VII, Dhanbad in connection with Madhuban P.S. Case No. 48 of 2016, corresponding to G.R. No. 3862 of 2016 (S.T. Case No. 61 of 2017) by which alternative charge under section 302/34 of the Indian Penal Code has been framed against the petitioners is, hereby, quashed and set aside. 8. This application is allowed. 9. However, the learned trial court is at liberty to frame additional charges if sufficient evidence surfaces in course of trial as has been indicated in the judgment of the Hon''ble Supreme Court in the case of Jasvinder Saini and Others v. State (Government of NCT of Delhi) (Supra).