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Jharkhand High Court · body

2020 DIGILAW 664 (JHR)

Vineet Shaw @ Binit Sao v. State of Jharkhand

2020-06-29

ANANDA SEN

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JUDGMENT : Ananda Sen, J. 1. Heard the learned counsel for the parties through video conferencing. They have no complain with respect to the audio and video clarity and quality. 2. In this application, the petitioner has challenged the order dated 07.09.2017 by which cognizance of offence under section 323, 341, 325, 385, 406, 420 and 120(B) of the Indian Penal Code was taken, and the petitioner has been summoned. The petitioner has challenged the summoning order. 3. Learned counsel for the petitioner submits that in the entire complaint petition, the statement of the complainant in S.A. and the statement of the witnesses there is nothing to implicate this petitioner. He submits the impugned order, which is a speaking order, will also suggest that there is no alleged overt act attributed to the petitioner. He submits that only allegation which has been made against the petitioner is that when the complainant inquired from this petitioner about the incident, he failed to give any satisfactory reply. 4. Mr. Sinha, learned counsel for the petitioner submits that the aforesaid action on behalf of the petitioner cannot be said to be any offence for which the petitioner needs to the summoned. He lastly submits that if there is an element of conspiracy, the same has also not been alleged by the complainant either in the S.A. or in the complainant. In support of his statement he relies upon the judgment rendered by the Hon’ble Supreme Court reported in (2012) 9 SCC 512 in the case of C.B.I. v. K. Narayana Rao. 5. Mr. Sudhanshu Kr. Deo, learned counsel appears for the opposite party no. 2, submits that the son of the petitioner was mercilessly beaten and was taken to the hospital. There were several marks of injury, thus offence is made out. The petitioner is the conspirator, thus, the court below has rightly taken cognizance and issued summons against the petitioner. 6. I have heard the learned counsel for the parties and I have gone through the complaint petition. In the complaint petition, it was mentioned that the son of the complainant was in the Railway Zonal Training School, Madhupur. He received an information that his son slipped and has sustained injuries. 6. I have heard the learned counsel for the parties and I have gone through the complaint petition. In the complaint petition, it was mentioned that the son of the complainant was in the Railway Zonal Training School, Madhupur. He received an information that his son slipped and has sustained injuries. When he went to the hospital, he saw his son in a precarious condition and he came to know that his son was mercilessly beaten by co-accused Kanchan Das as there was some rivalry between them. He came to know that this petitioner and another co-accused rescued his son from the hands of Kanchan Das and got him admitted in the hospital. When the informant went to the hospital and inquired, this petitioner could not give any satisfactory reply about the incidents. This is the only allegations levelled against the petitioner in the complaint petition. Further, I find while going through the complaint petition that the complainant in paragraph no. 3 has stated that this petitioner who happens to be the accused no. 2 and another person who happens to be the accused no. 3 saved the son of the complainant from the assault and brought and admitted him in the hospital. Further, when I go through the S.A., I find that to the Court question no. 3, the complainant has categorically stated that there was some rivalry between Kanchan Das and his as a result of which, Kanchan Das has assaulted his son. Further in his S.A., he has not whispered any overact against this petitioner. This clearly goes to suggest that there is no overt act by the petitioner save and except the fact that he did not reply the query made by the complainant. 7. So far as the submissions of the counsel for the opposite party no. 2 that the petitioner is a conspirator is concerned, I find that there is no material to suggest any conspiracy at the behest of this petitioner. I find that there is nothing on record to suggest that the petitioner is involved in any conspiracy. 8. Hon’ble Apex Court in the Case of CBI Vs. 2 that the petitioner is a conspirator is concerned, I find that there is no material to suggest any conspiracy at the behest of this petitioner. I find that there is nothing on record to suggest that the petitioner is involved in any conspiracy. 8. Hon’ble Apex Court in the Case of CBI Vs. K. Narayana Rao (Supra) at para 24 has held as under:- “The ingredients of the offence of criminal conspiracy are that there should be an agreement between the persons who are alleged to conspire and the said agreement should be for doing of an illegal act or for doing, by illegal means, an act which by itself may not be illegal. In other words, the essence of criminal conspiracy is an agreement to do an illegal act an such an agreement can be proved either by direct evidence or by circumstantial evidence or by both and in a matter of common experience that direct evidence to prove conspiracy is rarely available. Accordingly, the circumstances proved before and after the occurrence have to be considered to decide about the complicity of the accused. Even if some acts are proved to have been committed, it must be clear that they were so committed in pursuance of an agreement made between the accused persons who were circumstances regarding the guilt may be drawn only when such circumstances are incapable of any other reasonable explanation. In other words, an offence of conspiracy cannot be deemed to have been established on mere suspicion and surmises or inference which are not supported by cogent and acceptable evidence.” 9. From perusal of the facts of the case in hand, as narrated above, I find that the lawyer of OP is drawing an inference that there is a conspiracy angle and the petitioner is involved in this. The circumstances of the case as narrated do not suggest any conspiracy angle at the behest of this petitioner. No conspiracy has been established from the perusal of the complaint or the solemn affirmation. Thus, I find that in view of the law laid down by the Hon’ble Supreme Court in the aforesaid judgment (supra) the submission of the counsel for the opposite party that the petitioner was involved in the conspiracy is not substantiated. No conspiracy has been established from the perusal of the complaint or the solemn affirmation. Thus, I find that in view of the law laid down by the Hon’ble Supreme Court in the aforesaid judgment (supra) the submission of the counsel for the opposite party that the petitioner was involved in the conspiracy is not substantiated. After going through the entire petition and document, I find no overt act against the petitioner which would call for an order issuing summons against the petitioner. Order dated 07.09.2017 is absolutely bad, so far the Petitioner is concerned 10. Thus, I am inclined to allow the application by setting aside the order issuing summon against the Petitioner dated 07.09.2017 in connection with Complaint Case No., PCR No. 331 of 2017 passed by the learned S.D.J.M., Madhupur, Deoghar. 11. Thus, this application stands allowed.