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2024 DIGILAW 1446 (AP)

John Velanganamma W/o N. Sreenivasulu v. State Of Andhra Pradesh by its Public Prosecutor

2024-10-15

V R K KRUPA SAGAR

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ORDER : V R K Krupa Sagar, J. 1. These two criminal revision cases are filed under sections 397(1) and 401 of CrPC by the accused challenging the orders of the learned trial court in not discharging them from the offence under section 307 IPC. 2. Respondent in both the revisions is the state. 3. FIR.No.18 of 2017 was registered by Kadapa II Town police station on 07.12.2017 for the offences under sections 324, 506 read with 34 IPC. After due investigation, the Sub Inspector of police filed charge sheet stating that in the crime incident three accused are involved. A1 is Smt.John Velanganamma and A2 is Sri Mallela Fransis Kumar. The third person who allegedly participated in this crime incident is stated to be Mr.Praneeth who is the son of A1. It is stated that Mr.Praneet is a juvenile in conflict with law and the necessary case would be filed before Juvenile Justice Board, Kadapa. Thus, the charge sheet filed before learned Magistrate was only against A1 and A2. The investigative conclusion of the police indicates that they are required to be prosecuted for the offences under sections 324, 307 and 506 read with 34 IPC. It seems the learned Magistrate committed the case since section 307 IPC was exclusively triable by court of sessions. Then, the case was assigned to the learned Principal Assistant Sessions Judge, Kadapa where it was numbered as S.C.No.129 of 2017. 4. Both the accused made their due appearance through their learned counsels. When the matter was coming up for hearing on charges, each of the two accused filed petitions under section 227 CrPC seeking their discharge. A1 preferred such petition in Crl.M.P.No.389 of 2018. State filed its counter. After due hearing, by an order dated 16.08.2023, the learned Assistant Sessions Judge dismissed the petition. Aggrieved by it, A1 preferred Crl.R.C.No.866 of 2023. A2 seeking discharge filed petition under Section 227 CrPC and that was registered as Crl.M.P.No.388 of 2018. State filed its counter. After due hearing, the learned Assistant Sessions Judge by an order dated 16.08.2023 dismissed the said petition. Aggrieved by it, A2 preferred Crl.R.C.No.899 of 2023. 5. Thus both the revision cases pertain to the same charge sheet and they are argued together and are thus to be disposed of by a common order. 6. State filed its counter. After due hearing, the learned Assistant Sessions Judge by an order dated 16.08.2023 dismissed the said petition. Aggrieved by it, A2 preferred Crl.R.C.No.899 of 2023. 5. Thus both the revision cases pertain to the same charge sheet and they are argued together and are thus to be disposed of by a common order. 6. Sri Samboju Bala Gopal, the learned counsel for petitioners in both the revisions argued that the facts on record do not indicate any offence under section 307 IPC but the learned trial court grossly erred in appreciating the same and the order passed caused grave injustice. 7. The learned Assistant Public Prosecutor for respondent/State submitted that evidence collected during investigation attract section 307 IPC and the learned trial court is right in not discharging the accused and there are no merits in these revisions. 8. The point that falls for consideration is: “Whether the impugned orders are against law and are arbitrary requiring interference? POINT: - 9. The first schedule of the CrPC provides that trial for the offence under section 324 IPC is to be held by any Magistrate. Trial for the offence under section 506 IPC is to be held by any Magistrate if it falls within the former part of section 506 IPC and it is to be held by Judicial Magistrate of the First Class if it falls in the later part of the provision. Thus, both these offences could be tried by Judicial Magistrate of the First Class. Offence under section 307 IPC is to be tried by court of sessions. 10. It was because of section 307 IPC, the case was committed to the court of sessions and was pending before learned Assistant Sessions Judge for trial. 11. Before the court below, these accused invoked the jurisdiction of the trial court under section 227 CrPC and sought discharge. The said provision provides that the learned trial judge upon consideration of the record of the case and the documents submitted therewith and after hearing the submissions of the accused and the prosecution, considers that there is no sufficient ground for proceeding against the accused; it shall discharge the accused and record reasons for doing so. The said provision provides that the learned trial judge upon consideration of the record of the case and the documents submitted therewith and after hearing the submissions of the accused and the prosecution, considers that there is no sufficient ground for proceeding against the accused; it shall discharge the accused and record reasons for doing so. On the other hand, if after such consideration and hearing, the judge is of the opinion that there is ground for presuming that the accused has committed an offence which is exclusively triable by a court of sessions, it shall frame in writing a charge against the accused vide section 228(1)(b) of CrPC. On the other hand, if it finds that there is ground for presuming that the accused has committed an offence which is not exclusively triable by court of session, it may frame a charge against the accused and by an order transfer the case for trial to the Chief Judicial Magistrate or any other Judicial Magistrate of the First Class and direct the accused to appear before the said Magistrate on such date as it deems fit and there upon such Magistrate shall try the offence in accordance with the procedure for the trial of warrant cases instituted on a police report as provided in section 228(1)(a) of the CrPC. 12. Before the court below as well as this court, the forceful submissions on behalf of the accused is confined to section 307 IPC only. Therefore, it has to be seen whether the material placed by the investigating agency for consideration of the trial court disclosed that there is ground for presuming that the accused has committed such an offence or that there was no sufficient ground for proceeding against the accused for the offence under section 307 IPC. 13. Before adverting to the narration of facts, the observations of the learned Assistant Sessions Judge with reference to A2 are required to be noticed. It is recorded by the learned Assistant Sessions Judge that the name of A2 was not disclosed by the de facto complainant and charge sheet also does not mention how the investigating officer had reached to a conclusion that A2 is involved in this crime. Those observations would make one to think that there was no material to proceed further against A2. Those observations would make one to think that there was no material to proceed further against A2. However, the learned Assistant Sessions Judge did not discharge him and dismissed the petition stating that it considered the confession, seizure and panchanama of A2 which disclosed participation of him in the crime and therefore it found that prima facie accusation is found against A2 and therefore it refused to discharge him. Thus, the considered opinion of the learned Assistant Sessions Judge in deciding to proceed to frame a charge is solely based on the confession allegedly made by A2 and nothing else. 14. The above reasoning of the learned Assistant Sessions Judge is illegal. Could it be said that there is sufficient ground to proceed to charge a citizen for a grave offence under section 307 IPC only based on his own confession and nothing else. Be it noted that the confessional statement of this accused/A2 was not recorded before learned Judicial Magistrate of the First Class under section 164 CrPC. The law is clear that confession made by accused to police cannot even be narrated in the charge sheet, Sanju Bhansal V. State of Uttar Pradesh 2024 LiveLaw (SC) 467. Such confession made to police cannot be called as legal material to frame a charge, Deepak Bhai Jagadesh Chandra Patel V. State of Gujarat 2019 (16) SCC 547 . 15. With reference to A1, the impugned order till paragraph No.6 narrated the contentions on both sides. The entire reasoning of the learned trial court is mentioned in paragraph No.7 which reads as below: “The statement of de facto complainant dt:7.2.2017 and the statement of all the witnesses u.sec.161 Cr.P.C. and confession and seizure panchanama dt:10.2.2017 clearly reveals prima facie accusation against the petitioner/Accused No.1. since there is prima facie accusation against the petitioner/A1, the petitioner is not entitled for the relief of discharge as prayed by him. Accordingly, point No.1 Is answered as against the petitioner” 16. Here two things are to be noticed The first one is that the learned Assistant Sessions Judge has not referred to any single fact which according to it would amount to a material to frame a charge for the offence under section 307 IPC. The second aspect to be observed is that it considered confession, seizure and panchanama and found prima facie case for charging A1. The second aspect to be observed is that it considered confession, seizure and panchanama and found prima facie case for charging A1. Thus, the impugned order is an order that is devoid of reasons. Justice demands an order supported by reasons. Bereft of reasons, it ceases to command . the respect that is deserved by an order of a court and could be called arbitrary order. 17. Facts of the case are to be noticed now. The FIR, section 161 CrPC statement of witnesses recorded by police, charge sheet and other relevant papers are placed before this court and they are considered. The facts available from them stand as mention below. The victim is a data entry operator working on outsourcing basis in the market yard, Kadapa where A1 has been working as senior assistant. On 07.02.2017 when the victim was making entries for his attendance pertaining to 03.02.2017 and 04.02.2017, A1 objected and chastised him. There was quarrel between them as the de facto complainant contended that though he attended his duties absent was given for him. No part of the criminal incident occurred at that point of time. On the same day at about 1:00 p.m., it is stated that A1 and her son Mr.Praneet along with an unidentified person (according to charge sheet the said person is A2) came to the de facto complainant. A1 criminally intimidated him. Her son Mr.Praneet picked up an iron rod and hit on the back of the head of the de facto complainant which resulted in a bleeding injury. According to the charge sheet that was a simple hurt. It was further alleged that A1, A2 and Mr.Praneet kicked the de facto complainant with hands and legs and A1 threatened to kill him. These are the only allegations available on the record. We are now concerned with A1 and A2 only. Even according to the material on record, use of iron rod and causing injury on the back of the head of the de facto complainant were the acts attributed to Mr.Praneet who is not under trial along with these accused. All the allegations against these accused are about abuses, criminal intimidation and kicking with hands and legs. Do they amount to an attempted murder? All the allegations against these accused are about abuses, criminal intimidation and kicking with hands and legs. Do they amount to an attempted murder? Section 307 IPC arises where anyone does an act with such intention or knowledge that if by that act, he caused the death then he would be guilty of murder. Here it is not the case of prosecution that by criminal intimidation and hitting with hands and legs either A1 or A2 intended to kill the victim or that kicking and fisting resulted in any such injuries which would have led to his death. Therefore the contention of the learned counsel for petitioners in placing reliance on the ruling of this court in A.Janga Reddy V. A.Indira Reddy, 2018 (2) ALD (Crl) 296 certainly aid the petitioners’ case. Therefore, even on the facts available from the record, one could not say that there is material to charge A1 and A2 for the offence under section 307 IPC. 18. It is very clear that the learned Assistant Sessions Judge failed to bestow appropriate attention to the factual details and failed to keep in mind what material was available for legal consideration and what material was not available for legal consideration at the time of framing of charge and failed to assign any valid reasons for the decision it had taken. Thus, this case squarely falls within the ambit of an order which is illegal leading to substantial injustice to petitioners. Therefore, revisional interference of this court to correct the course of justice is required. Hence, point is answered accordingly. 19. In the result, both the criminal revision cases are allowed in the following terms: Order dated 16.08.2023 in Crl.M.P.No. 389 of 2018 and order dated 16.08.2023 in Crl.M.P.No.388 of 2018 in S.C.No.129 of 2017 on the file of learned Principal Assistant Sessions Judge, Kadapa are set aside to the extent of not discharging A1 and A2 for the offence under section 307 IPC. Consequently, the learned Principal Assistant Sessions Judge shall proceed to consider the material as against A1 and A2 with reference to Sections 324 and 506 read with 34 IPC or for any other penal provisions which according to it are applicable and shall proceed further after keeping attention on Section 228(1)(a) of the Code of Criminal Procedure, 1973.