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Madhya Pradesh High Court · body

2019 DIGILAW 92 (MP)

Sukhdeo Panse v. Union of India

2019-01-29

V.P.S.CHAUHAN

body2019
ORDER : The petitioners in these three petitions are different individuals while the respondents No.1 and 2 are common. Since all the above petitions arise from a common order dated 12.9.2018, impugned herein, passed by Special Judge (CBI), Jabalpur, in ST No.900486/2018, therefore, they are being disposed of by this common order. The Special court of CBI has allowed the application filed by the respondent No.2 under Sec.319 of the Cr.P.C., and all the petitioners are arraigned as an accused and summons ordered to be issued against them. 2. For the sake of convenience, the facts of M.Cr.C. No.39403/2018, are being mentioned, which are common in all the petitions. 3. Facts giving rise to the instant petitions, in short, are that Police Station Multai, Distt.Betul, received an information about the unnatural death of one Bondru Pardi, where upon a merg case No.94/2007 dated 12.9.2007 under Sec.174 of the Cr.P.C., was registered; and the same time another information was received about the unnatural death of Dodarbai, wife of Bondru, who was found dead in the well of one Ajay Rao Deshmukh, on the basis of which merg case No.95/2007 dated 12.9.2007 was registered under Sec.174 of the Cr.P.C, at P.S. Multai, Distt. Betul. Both the merg cases were investigated by SDOP, Sarni, Distt. Betul, and this fact emerged that one lady belonging to Kunbis caste was raped and killed by Pardis on 9.9.2017. After that incident, Kunbis and Panwar community of the locality became violent and demanded the removal of Pardhidhana Basti, where the members of Pardhi community were settled and each given a plot to construct a house by the government. Some members constructed pakka houses and some constructed dwelling units. The respondent No.2 Alsia Pardhi was also the resident of Pardhidhana Basti. The persons of Kunbis and Panwar community constituted an unlawful assembly and destroyed the dwelling houses of Pardhidhana Basti, which was objected by some of the members of Pardhi community. After inquiry, the SDOP Sarni, submitted a report, registered as Crime No.643/2008 Dt. 25.9.2008 at P.S. Multai, for the offences punishable under Sec.147, 149 and 302 of the IPC. The persons of Kunbis and Panwar community constituted an unlawful assembly and destroyed the dwelling houses of Pardhidhana Basti, which was objected by some of the members of Pardhi community. After inquiry, the SDOP Sarni, submitted a report, registered as Crime No.643/2008 Dt. 25.9.2008 at P.S. Multai, for the offences punishable under Sec.147, 149 and 302 of the IPC. The respondent No.2 was not satisfied with the investigation of Crime No.643/2008 and alleged that some women of Pardhi community were raped by the assailants, and filed a write petition before Hon. the High Court, registered as W.P. No.15189/2007, which was finally disposed of with a direction that the case be handed over to the Director of Central Bureau of Investigation with a direction to take over the investigation of crime relating to the death of Bondru and his wife Dodarbai, and bring the investigation to its logical conclusion in accordance with the law. 4. CBI registered a case No.RC 0082009-S-0017 by treating the FIR No.643/2007 under similar sections against unknown villagers. After completion of investigation, the CBI submitted the charge sheet before Special Court and also mentioned that the investigation against other members of the unlawful assemble is still continuing under Sec.173(8) of the Cr.P.C., and supplementary charge sheet would be filed against them. The court of Special Judge, framed charges against the charge sheeted accused persons and recorded the statement of prosecution witnesses. During trial, the respondent No.2 filed an application under Sec.311 of the Cr.P.C, to examine witness Narad Singh, Bharat Singh, Saudagar, Langad and Rampyari on the ground that their statement were recorded, during investigation, under Sec.161 of the Cr.P.C., but the respondent No.1 has not listed these witnesses in the list of witnesses and most of the witnesses listed in the list belong to the same community of the accused. The proposed witnesses are members of Pardhi community and are the eye witnesses. The trial Court after considering the reply, disposed of the application filed under Sec.311 of the Cr.P.C., by order dated 10.10.2013. The respondent No.1 agreed to examine Rampyari, who is the daughter of Bondre and objected for examination of other witnesses mentioned in the application. The proposed witnesses are members of Pardhi community and are the eye witnesses. The trial Court after considering the reply, disposed of the application filed under Sec.311 of the Cr.P.C., by order dated 10.10.2013. The respondent No.1 agreed to examine Rampyari, who is the daughter of Bondre and objected for examination of other witnesses mentioned in the application. The trial Court allowed the application and directed the respondent No.1, to submit the statement of all the listed witnesses, recorded under Sec.161 of the Cr.P.C., during investigation, and also called these witnesses as Court witnesses for recording their evidence. 5. Consequently the statement of Narad Singh, Bharat Singh, Saudagar and Langad were recorded and accused persons were given an opportunity to cross examine those witnesses, who were cross-examined by them at length. Opportunity to cross examine the said witnesses was also given to respondent No1 CBI (prosecution agency), but did not cross-examine these witnesses, though the right of respondent No.1 to cross-examine these witlessness was reserved by the Court. 6. Thereafter, the respondent No.2 filed an application under Sec.319 of the Cr.P.C, before the trial Court, stating that the witnesses examined by the Court specifically deposed the act of Sukhdev Panse, Raja Pawar, Vijay Doctor, Sakalle, Kacharu Sarpanch, Suresh Sarpanch, Sandeep Saware, Umesh, Dange and others, they were in complicity with the other accused persons and committed the alleged offences mentioned in the final report of the charge sheet, and prayed to arraign these persons as an accused in the pending trial. The Special Court allowed this application vide order dated 12.9.2018 and impleaded the petitioners as accused in the case and also ordered to issue summons for their appearance. Being aggrieved by the said order dated 12.9.2018, the petitioners are before this Court. 7. It has been contended by learned counsel for the petitioners that there were two separate incidents; one occurred at Pardhidhana where persons constituted unlawful assembly armed with lathi and other weapons and destroyed the dwelling houses of pardhis, in respect of which FIR was lodged for offences punishable under Sec.147, 148, 149, 436, 186 and 427of the IPC and another incident occurred near the agricultural field of one Ajay Rao Deshmukh were Bondru and his his wife Dodalbai were assaulted by a mob of unlawful assembly to death. On that basis another FIR was registered under Sec.147, 148 and 302 read with Sec.149 of the IPC. On that basis another FIR was registered under Sec.147, 148 and 302 read with Sec.149 of the IPC. Both the incidents took place when one woman belonging to Kunbi community was raped and murdered by some persons belonging to Pardhi community on 9.9.20007. After the incident, the members of Panwar and Kunbi community turned violent and agitated for removal of Pardhis from Pardhidhana, after which an executive Magistrate and village panchayat served a notice to the pardis who constructed their dwelling units without permission and made encroachment, but the members of Kunbis and Pawar community were not satisfied with the action, so they gathered and formed an unlawful assembly and approached Pardhidhan to oust the pardhis. Another incident occurred when the persons, were going to pardhidhana under the leadership of Heralal Lokhande, one person met them in way and informed that some pardhis are hiding in the forest. On such information, the persons riding on the tractor trolley get down and launched a search for the pardhis at the filed of Ajay Rao Deshmukh, where Bondru was found, who was beaten by the accused persons. Dodarbai, wife of Bondru, came for his rescue who was dragged from the spot to the field where both were beaten by the crowd and after death, the members of the crowd threw the dead body of Dodarbai in a well belonging to Ajay Rao Deshmukh. 8. It has further been contended by learned counsel for the petitioners that the CBI, after completion of investigation, has filed the charge sheet against accused Heeralal Lokhande and others for the offences punishable under Sec.147, 149 read with Sec.302 of the IPC. Charges have been framed against all the accused persons and most of the prosecution witnesses examined by the trial court and none of the witnesses stated about the act of the petitioners, but the Court called the other five witnesses with a pre-planned strategy, and in their statements the witnesses stated against the petitoners, where after the application under Sec.319 of the Cr.P.C., for impleadment of the petitiners as accused, was filed, which was allowed by the trial court. It is also contended that if the statement of Court witnesses is taken into consideration, the whole case of prosecution would be spoiled, taking into consideration this aspect, the respondent No.1 CBI, chose not to examine those witnesses, but the Court on its own has called the witnesses under Sec.311 of the Cr.P.C. and examined them. This shows that all the summoned accused, who are petitioners herein, are not having any complicity with the accused persons, and therefore, there was no need to arraign the petitioners as an accused. Prays that the impugned order passed by the trial court is perverse and without application of mind. The prosecution witnesses who are already examined by the court neither implicated the petitioner in the statement recorded in court or under Sec.161 of the Cr.P.C, nor before Magistrate under Sec.164 of the Cr.P.C. This clearly shows that the petitioners were not present at the spot at the time of incident. The court witnesses, strangely and after thought, implicated the petitioners and stated their prsence at the spot. Prays for setting aside the impugned order. 9. Counsel for the respondent No.1, supporting the case of the petitioner, submitted that in case the petitioners are tried with other accused persons, the whole case of prosecution would be spoiled. 10. The counsel appearing for the respondent No.2 submitted that respondent No.1 being influenced by the post or other factors, tried to save the newly arraigned accused since inception of the investigation. The respondent No.2 repeatedly filed applications before the Trial Court and also filed a Write Petition bearing No.15189/2007 before Hon. the High Court, and in pursuance of the order passed in the writ petition, the CBI registered a case for the murder of Bondru and his wife Dodarbai. The respondent No.1 is trying to suppress the material facts of the case and was not interested in registering a case of murder against the accused as well as the newly arraigned accused persons under Sec.319 of the Cr.P.C. The trial court has not erred in passing the impugned order. There are sufficient material available on record, in the form of statement of witnesses to proceed against them. The prosecution, though had recorded the statement of witnesses under Sec.161 of the Cr.P.C, did not listed these witnesses as prosecution witnesses. There are sufficient material available on record, in the form of statement of witnesses to proceed against them. The prosecution, though had recorded the statement of witnesses under Sec.161 of the Cr.P.C, did not listed these witnesses as prosecution witnesses. The trial court summoned the witnesses under Sec.311 of the Cr.P.C, whose statement were recorded under Sec.161 of the Cr.P.C., during investigation. The prosecution witnesses have stated in the Court what they have stated before the investigating agency. All the prosecution witnesses have been examined and cross-examine at length and the witnesses have remained firm on the fact that all the petitioners were present at the scene of crime, where members of unlawful assembly beat Bondru to death while his wife Dodalbaicame to save , was raped and murdered by the members of the said assembly and threw her in a well. All the witnesses are the eye witnesses who were hiding in the forest, but they did not went out to save Bondru because when his wife Dodalbai came for his rescue, she was raped and beaten to death by the crowd. The petitions have been filed on wrong facts, prays for their dismissal. 11. After hearing learned counsel for the parties at length and perused of documents filed with the record of M.Cr.C No.39403/2018 as also the case diary of Crime No.RC 0082009 S 0017 under Sec.147 and 302 of the IPC, it emerges out that respondent No.1 arraigned as the main kingpin Heeralal Lokhande and other as accused persons for offences punishable under Sec.147 and 149 read with Sec.302 of the IPC for murder of Bondru and his wife Dodalbai, but the investigating officer continued the investigation and filed charge sheet ,specifically mentioned this fact at the time of filing of the charge sheet that investigation against other members of the unlawful assembly is still continuing under Sec.173(8) of the Cr.P.C., and supplementary charge sheet would be filed against them. But there is nothing on record to show that the respondent No.1 continued the investigation and any supplementary charge sheet was filed under Sec.173(8) of the Cr.P.C. It is admitted by the respondent No.1 that the statement of witnesses, summoned by the trial Court under Sec.311 of the Cr.P.C., was recorded during investigation under Sec.161 of the Cr.P.C. This admission clearly shows that the Court only summoned those witnesses who were not new. When the counsel for the respondent No.1 was asked why these witnesses were not named in the list of prosecution witnesses, it was replied by the counsel that they developed a new story and could spoil the statement of other prosecution witnesses and due to this reason, the investigating officer did not relied on the statement of these witnesses and therefore, were not listed as prosecution witnesses. On perusal of the charge sheet of Crime No.0082009 S 0017, it is prima facie found that the listed prosecution witnesses all belongs to Kunbi and Panwar community, and this fact is again affirmed on perusal of the copy of the statement of these witnesses recorded by the trial court. 12. Statement of copy of the witnesses Narad Singh, Bharat Singh, Saudagar and Langad have been filed in the instant case. On perusal of the statement and particulars of these witnesses; all these witnesses stated in their examination-in-chief that they are eye witness and belong to community of victim and at the time of incident they were hiding to save themselves from the ill-fated consequence. All these witnesses have been cross-examined by the accused, and have remained intact on the point that the petitioners were present at the spot and were the members of unlawful assembly and instigated them to beat Bondru to death and also rape Dodarbai and kill her. The act of petitioners is not different from the act of the accused persons who are already facing trial. 13. Counsel for the petitioners submitted that to arraign the new accused under Sec.319 of the Cr.P.C., there should be evidence on record, and if the evidence is un-rebutted then may lead to conviction of newly arraigned accused. 14. In the case of Hardeep Singh Vs. State of Punjab and others (2014) 3 SCC 92 , Hon. the Apex Court answered the questions framed by it, in paragraph No.110 of the judgment as thus: 110. We accordingly sum up our conclusions as follows: Question Nos.1 & III Q.1 What is the stage at which power under Section 319 Cr.P.C. can be exercised? AND Q.III Whether the word "evidence" used in Section 319(1) Cr.P.C. has been used in a comprehensive sense and includes the evidence collected during investigation or the word "evidence" is limited to the evidence recorded during trial? AND Q.III Whether the word "evidence" used in Section 319(1) Cr.P.C. has been used in a comprehensive sense and includes the evidence collected during investigation or the word "evidence" is limited to the evidence recorded during trial? A. In Dharam Pal's case, the Constitution Bench has already held that after committal, cognizance of an offence can be taken against a person not named as an accused but against whom materials are available from the papers filed by the police after completion of investigation. Such cognizance can be taken under Section 193 7 Cr.P.C. and the Sessions Judge need not wait till 'evidence' under Section 319 Cr.P.C. becomes available for summoning an additional accused. Section 319 Cr.P.C., significantly, uses two expressions that have to be taken note of i.e. (1) Inquiry (2) Trial. As a trial commences after framing of charge, an inquiry can only be understood to be a pre-trial inquiry. Inquiries under Sections 200, 201, 202 Cr.P.C.; and under Section 398 Cr.P.C. are species of the inquiry contemplated by Section 319 Cr.P.C. Materials coming before the Court in course of such enquiries can be used for corroboration of the evidence recorded in the court after the trial commences, for the exercise of power under Section 319 Cr.P.C., and also to add an accused whose name has been shown in Column 2 of the charge sheet. In view of the above position the word 'evidence' in Section 319 Cr.P.C. has to be broadly understood and not literally i.e. as evidence brought during a trial. Question No. II Q.II Whether the word "evidence" used in Section 319(1) Cr.P.C. could only mean evidence tested by cross-examination or the court can exercise the power under the said provision even on the basis of the statement made in the examination-in-chief of the witness concerned? A. Considering the fact that under Section 319 Cr.P.C. a person against whom material is disclosed is only summoned to face the trial and in such an event under Section 319(4) Cr.P.C. the proceeding against such person is to commence from the stage of taking of cognizance, the Court need not wait for the evidence against the accused proposed to be summoned to be tested by cross-examination. Question No. IV Q.IV What is the nature of the satisfaction required to invoke the power under Section 319 Cr.P.C. to arraign an accused? Question No. IV Q.IV What is the nature of the satisfaction required to invoke the power under Section 319 Cr.P.C. to arraign an accused? Whether the power under Section 319 (1) Cr.P.C. can be exercised only if the court is satisfied that the accused summoned will in all likelihood be convicted? A. Though under Section 319(4)(b) Cr.P.C. the accused subsequently impleaded is to be treated as if he had been an accused when the Court initially took cognizance of the offence, the degree of satisfaction that will be required for summoning a person under Section 319 Cr.P.C. would be the same as for framing a charge. The difference in the degree of satisfaction for summoning the original accused and a subsequent accused is on account of the fact that the trial may have already commenced against the original accused and it is in the course of such trial that materials are disclosed against the newly summoned accused. Fresh summoning of an accused will result in delay of the trial - therefore the degree of satisfaction for summoning the accused (original and subsequent) has to be different. Question No.V Q.V Does the power under Section 319 Cr.P.C. extend to persons not named in the FIR or named in the FIR but not charge sheeted or who have been discharged? A. A person not named in the FIR or a person though named in the FIR but has not been charge sheeted or a person who has been discharged can be summoned under Section 319 Cr.P.C. provided from the evidence it appears that such person can be tried along with the accused already facing trial. However, in so far as an accused who has been discharged is concerned the requirement of Sections 300 and 398 Cr.P.C. has to be complied with before he can be summoned afresh. While answering the Question No.4, Hon. the Apex Court specifically mentioned that difference in degree of satisfaction for summoning the original accused and subsequent accused is on account of the fact that the trial may have already commenced against the original accused and it is in the course of such trial that material are disclosed against the newly summoned accused. Fresh summoning of an accused will result in delay of trial, therefore, the degree of satisfaction for summoning the accused (original and subsequent) has to be different. Fresh summoning of an accused will result in delay of trial, therefore, the degree of satisfaction for summoning the accused (original and subsequent) has to be different. But recently Hon. the Apex Court in the case of Labhuji Amratji Thakor & others Vs. The State of Gujarat and others, (Cri. Appeal No.1349/2018, judgment dated 13th of November, 2018) considered the issue referred in the case of Hardeep Singh (supra) ….....In Section 319 CrPC the purpose of providing if “it appears from the evidence that any person not being the accused has committed any offence” is clear from the words “for which such person could be tried together with the accused”. The words used are not “for which such person could be convicted”. There is, therefore, no scope for the court acting under Section 319 CrPC to form any opinion as to the guilt of the accused.” It was also observed in the case of Labjhuji (Supra) that the constitutional bench in the case of Hardeep Singh (Supra), has observed in paragraph No.9 The Constitution Bench has given a caution that power under Section 319 Cr.P.C. is a discretionary and extraordinary power, which should be exercised sparingly and only in those cases where the circumstances of the case so warrant. The crucial test, which has been laid down as noted above is “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 unrebutted, would lead to conviction.” 15. In view of the observations made by Hon. the Apex Court, in the case of Hardeep Singh (Supra) and Labhuji (supra), the evidence adduced before the Trial Court is again perused by me. On perusal of the statement of Narad Singh, Bharat Singh, Saudagar and Langad, all these witnesses specifically stated in examination-in-chief that all the petitioners, along with other accused persons were present at the spot and they were the members of the unlawful assembly and acted with the object of committing murder of Bondru and his wife Dodalbai. They also specifically stated that Sukhdeo Panse told to the accused that the Pardhis have raped our girl, therefore you people also rape Dodarbai in the same way and if she dies, throw her in the well. They also specifically stated that Sukhdeo Panse told to the accused that the Pardhis have raped our girl, therefore you people also rape Dodarbai in the same way and if she dies, throw her in the well. The witnesses also specifically named the petitioners Sukhdeo Panse, Raja Panwar, Omesh Dangi, Sandeep and Suresh and Kacharu. Therefore, prima facie, there is no doubt left that on the basis of evidence recorded during the trial, there was sufficient material against the above mentioned petitioners that they were very much involved in the commission of the crime and were members of the unlawful assembly. 16. In the impugned order, the learned trial court has considered the case of Brijendra Singh Vs. State of Rajasthan 2017(7) SCC 706 and also considered the law laid down by Hon. the Apex Court in the case of Hardeep Singh (Supra), and after hearing rival contentions, proceeded to record the statement of Narad Singh, Bharat Singh, Saudagar and Langad, who were already examined by the investigating officer during investigation, under Sec.161 of the Cr.P.C. This shows that these witnesses are not first time witnesses and stating against the above petitioners, except petitioner No.2 D.K. Sakalle (of McrC No.39403/2018), after thought. They have already stated against the petitioners during investigation also. Learned Court below has considered the statement and facts which has come in the deposition of all the witnesses and found that the evidence of those witnesses is much stronger than mere possibility of their complicity with the other accused. This also shows that the learned Court below considered the evidence not only at the level of framing of charge but somewhat beyond that. 17. In view of the forgoing discussion, there is sufficient material available against petitioners Sukhdeo Panse, Raja Panwar, Omesh, Sandeep, Suresh and Kachur to be arraigned as a accused under Sec.319 of the Cr.P.C. As far as petitioner D.K. Sakalle of M.Cr.C. No.39403/18 is concerned, the court witness Narad Singh stated at the last of paragraph No.2 that when accused persons were beating Bondru, SDOP Sakalle appeared at the scene of crime and told Sukhdeo Panse, Raja Panwar and Vijay Doctor, not to beat Bondru with lathi and stone,else they would be implicated in a criminal case, but till that time Bondru had already died. Other Court witness Bharat Singh also stated in the same fashion in the last of paragraph No.2 of his statement. However, Saudagar Pardi court witness No.3, did not state anywhere about the role of petitioner Sakalle in the incident. The other court witness Langad has also not stated anything about the presence of petitioner D.K. Sakalle at the scene of crime. The statement recorded under Sec.161 of the Cr.P.C., is not considered while disposing of the application under Sec.319 of the Cr.P.C. In that way, sufficient material is not available against petitioner D.K. Sakalle to be arraigned as an accused under Sec.319 of the Cr.P.C. The continuation of the proceedings against the petitioner D.K.Sakalle is thus nothing but an empty formality. Sec.482 of the Cr.P.C, could, in such circumstances, be invoked to prevent abuse of the process of law and thereby preventing a wasteful exercise by the Court below. The impugned order dated 12.9.18, is modified to the extent as above. 18. Consequently, the M.Cr.C. No.39403/2018, so far as it relates to the petitioner No.2, D.K. Sakalle, is hereby allowed and the proceedings pending against this petitioner before Special Judge, CBI, in ST No.900486/2018, are hereby quashed, while with regard to other petitioner No.1 Sukhdeo Panse in M.Cr.C.39403/18 is stand dismissed. The other petitions being M.Cr.C. No.40956/2018 and Cri. Revision No.5056/2018, are hereby dismissed. No order as to costs. 19. Needless to mention here that this court has not expressed any opinion on the merits of the case. The trial court shall decide the case on its own merit without being influenced by the observations made herein above, which have been made for limited purpose.