Jharkhand High Court
Surendra Kumar vs The State Of Jharkhand on 23 April, 2024
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 2201 of 2020
1. Surendra Kumar
2. Sarthak Shikhar @ Sarthak Kumar
3. Saksham Shikhar @ Satyam Kumar (Minor) represented through her mother
Smt. Soni Kumari ...... Petitioners
Versus
1.The State of Jharkhand
2. Shatakshi Choudhary ...... Opposite Parties
CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
---------
For the Petitioners : Mr. R.S. Mazumdar, Sr. Advocate Mr. Nishant Kumar Roy, Advocate Mr. Shadab Bin Haque, Advocate For the State : Mrs. Sweta Shukla, A.P.P. For the O.P. No.2 : Mr. Kushal Kumar, Advocate 07/Dated: 23/04/2024 Heard Mr. R.S. Mazumdar learned senior counsel for the petitioners, Mrs. Sweta Shukla, learned counsel for the State and Mr. Kushal Kumar, learned counsel learned counsel for the O.P. No.2.
2. This petition has been filed for quashing of order taking cognizance dated 02.02.2020 passed in POCSO Case No. 25/2019 arising out of Mahila P.S. Case No. 43/2018 whereby cognizance has been taken under section 354A and 354D of I.P.C. and under section 12 of POCSO Act, pending in the Court of learned A.J.C.-IV, Ranchi.
3. Mahila P.S. Case No. 43/2018 has been lodged alleging therein that informant is resident of Prema Apartment, 3A, behind AG office, Doranda, Ranchi, her neighbours namely, Surendra Kumar, his wife Soni Kumar and his two sons have been torturing the family of the informant from few days. Further it has been alleged that there is a dispute with the relative of Surendra Kumar namely, Navin Kumar and Vishakha Kumari and for the same matter is pending before the Ld. Court. Due to the said reason, a disgusting sit-in is being carried out by all these accused persons. The resident of the apartment 1 are aware of the said fact. All the accused persons have been abusing, assaulting and the wrong part of the body is being shown. Further it has been alleged that 11 years old sister of the informant is being held in a wrong manner and wrong gesture are being made due to which she is very much scared and she has informed the informant about the same. Further it has been alleged that when the elder son of Surendra Kumar visits Ranchi then he makes wrong comments and gestures upon the informant. Further it has been alleged that the younger son of Surender Kumar tried to burst Cracker just outside the door of the house of the informant and when he was caught doing so by the mother of the Informant then he went back to his house and brought a bat with an intention to kill and started hitting, upon hearing the cry, the neighbours gathered and recused my mother and father. To gather evidence, when the informant tried to record the incidence in her mobile phone, then Surender Kumar made wrong gesture and started threatening the informant that he would commit rape upon her & her mother. Record of the same is available with the informant. Lastly it has been stated that had not the neighbours rescued the informant and her family members, they would have been subject to dire consequences. On the basis of these allegations, the F.I.R. was lodged.
4. Mr. R.S. Mazumdar, learned senior counsel for the petitioners submits that the said case was investigated by the police and the chargesheet has been submitted under section 323, 504 of I.P.C on 10.03.2019. He further submits that protest-cum-complaint petition was filed on 23.03.2019 before the learned Special Judge, POCSO Act by the O.P. No.2 alleging therein that police has submitted chargesheet under section 323, 504 of I.P.C. and chargesheet has not been submitted under sections 354, 354A, 506, 509 r/w 34 of I.P.C. 2 and under section 8 /12 of POCSO Act. He submits that on the protest petition the learned Special Judge has been pleased to take cognizance by order dated 02.02.2020 under section 354A and 354D of I.P.C. and under section 12 of POCSO Act. He submits that although chargesheet is there under section 323 and 504 of I.P.C. however, cognizance has not been taken in that section. He submits that once final form is there learned court is having jurisdiction either to proceed on the basis of final form or differ with the final form and take cognizance of other sections of I.P.C. however, in the case in hand on the protest petition the learned court has taken cognizance not under the chargesheeted sections however in another sections of I.P.C. and POCSO Act which is against the mandate of law. He further submits that learned court has even taken note of CCTV footage without following the provisions of section 65(B) (1) of Evidence Act and to buttress this argument he relied in the case of "Arjun Panditrao Khotkar Vs. Kailash Kushanrao Gorantyal and others" reported in (2020) 7 SCC 1. He refers to para 52, 54, 55 and 61 of the said judgment which is quoted hereinbelow:
"52. We may hasten to add that Section 65-B does not speak of the stage of which such certificate must be furnished to the Court. In Anvar P.V, this Court did observe that such certificate must accompany the electronic record when the same is produced in evidence. We may only add that this is so in cases where such certificate could be procured by the person seeking to rely upon an electronic record. However, in cases where either a defective certificate is given, or in cases where such certificate has been demanded and is not given by the person concerned, the Judge conducting the trial must summon the person/persons referred to in Section 65-B(4) of the Evidence Act, and require that such certificate be given by such person/persons. This, the trial Judge ought to do when the electronic record is produced in evidence before him without the requisite certificate in the circumstances aforementioned. This is, of course, subject to discretion being exercised in civil cases in accordance with law, and in accordance with the requirements of justice on the facts of each case. When it comes to criminal trials, it is important to keep in mind the general principle that the accused must be supplied all documents that the prosecution seeks to rely upon before commencement of the trial, under the relevant sections of the CrPC.
54. It is pertinent to recollect that the stage of admitting documentary evidence in a criminal trial is the filing of the charge- sheet. When a criminal court summons the accused to stand trial, copies of all documents which are entered in the charge-sheet/final report have to be given to the 3 accused. Section 207 CrPC, which reads as follows, is mandatory. Therefore, the electronic evidence i.e. the computer output, has to be furnished at the latest before the trial begins. The reason is not far to seek; this gives the accused a fair chance to prepare and defend the charges levelled against him during the trial. The general principle in criminal proceedings therefore, is to supply to the accused all documents that the prosecution seeks to rely upon before the commencement of the trial. The requirement of such full disclosure is an extremely valuable right and an essential feature of the right to a fair trial as it enables the accused to prepare for the trial before its commencement.
55. In a criminal trial, it is assumed that the investigation is completed and the prosecution has, as such, concretised its case against an accused before commencement of the trial. It is further settled law that the prosecution ought not to be allowed to fill up any lacunae during a trial. As recognised by this Court in CBI v. R.S. Pai, the only exception to this general rule is if the prosecution had "mistakenly" not filed a document, the said document can be allowed to be placed on record. The Court held as follows: (SCC p. 85, para 7) "7. From the aforesaid sub-sections, it is apparent that normally, the investigating officer is required to produce all the relevant documents at the time of submitting the charge-sheet. At the same time, as there is no specific prohibition, it cannot be held that the additional documents cannot be produced subsequently. If some mistake is committed in not producing the relevant documents at the time of submitting the report or the charge-sheet, it is always open to the investigating officer to produce the same with the permission of the court."
61. We may reiterate, therefore, that the certificate required under Section 65-B(4) is a condition precedent to the admissibility of evidence by way of electronic record, as correctly held in Anvar P.V.2, and incorrectly "clarified" in Shafhi Mohammad, Oral evidence in the place of such certificate cannot possibly suffice as Section 65-B(4) is a mandatory requirement of the law. Indeed, the hallowed principle in Taylor v. Taylor, which has been followed in a number of the judgments of this Court, can also be applied. Section 65-B(4) of the Evidence Act clearly states that secondary evidence is admissible only if led in the manner stated and not otherwise. To hold otherwise would render Section 65-B(4) otiose."
On these grounds learned senior counsel for the petitioners submits that the cognizance order is bad in law.
5. Learned counsel for the State submits that final form has been submitted however the learned court has been pleased to take cognizance on the protest petition under the sections of I.P.C. and POCSO Act.
6. Learned counsel for the O.P. No.2 submits that protest petition was filed and once materials are there the learned court has taken cognizance. There is no illegality in the cognizance order and in that view of the matter this petition may be dismissed.
7. The Court has anxiously gone through the materials on record 4 including the order taking cognizance. It is an admitted fact that Mahila P.S. Case No. 43 of 2018 was registered on 09.11.2018 by the O.P. No.2 which was investigated by the police and final form was submitted under sections 323, 504 of I.P.C. which is triable by the learned Magistrate. Thereafter protest petition was filed on 23.03.2019 before the learned Special Judge and on protest petition learned Special Judge has taken cognizance under sections 354A and 354D of I.P.C and section 12 of POCSO Act by order dated 02.02.2020. Once the police report under section 173 Cr.P.C. is submitted before the learned Magistrate, he is having three options :Firstly, he may decide that there is no sufficient ground for proceeding further and drop action, secondly he may take cognizance of the offence under section 190 (1) (b) Cr. P.C on the basis of police report and issue process and thirdly he may take cognizance of offence under section 190(1)(a) CrPC on the basis of original complaint and proceed to examine on oath the complainant and his witnesses under section 200 of Cr.P.C. This exercise is required to be made by the learned Magistrate. Admittedly, the final form was submitted under sections 323, 504 of I.P.C. which is triable by the learned Magistrate and in view of that cognizance was required to be taken by the learned Magistrate however, protest petition was filed before the learned Special Judge who has taken cognizance under section 354A and 354D of I.P.C. and under section 12 of POCSO Act and he has not taken cognizance under section 323, 504 of I.P.C. The cognizance is taken under the POCSO Act arising out of said Mahila P.S. Case No. 43 of 2018. Once the protest petition is filed it is required to be treated as complaint case and procedure under section 200 of Cr.P.C. is required to be followed however, the learned Special Judge has taken cognizance under the said sections. The correct course of action was to be there since final form was under section 323, 504 of I.P.C. the matter was 5 required to be considered by the learned Magistrate as the matter was triable by the learned Magistrate and in course of trial if any material is coming to his knowledge about other sections and triable by the learned Sessions Court he is competent to transfer the matter to the learned Sessions Judge for further action, that is lacking in the case in hand and no cognizance is there under section 323, 504 of I.P.C. Thus, order taking cognizance dated 02.02.2020 is not in accordance with law and accordingly the same is set aside.
8. The matter is remitted back to the learned Magistrate who will look into the final form and proceed in accordance with law. On the point of other sections of I.P.C. and other statutes this Court has not gone into the merit and it is for the learned Magistrate to proceed on the well settled principle of law.
9. This petition stands disposed of. Pending I.A, if any, stands disposed of. Interim order is vacated.
( Sanjay Kumar Dwivedi, J.) Satyarthi/A.F.R. 6