Madhya Pradesh High Court
Ram Vilas Jaat vs Central Bureau Of Investigation on 18 November, 2015
(1)
HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT
JABALPUR
Criminal Revision No. 1834/2011.
Union of India
Versus
Sudeep Patel and others.
For the petitioner: Shri J.K. Jain, learned Assistant Solicitor
General.
For the respondents: Shri Manish Datt, learned Senior Counsel
with Shri Pawan Gujar and Shri Rahul
Sharma learned counsel.
Criminal Revision No. 89/2012.
Ram Vilas Jaat.
Versus
CBI and another.
For petitioner: Shri Manikant Sharma, learned counsel.
For respondent no. 1: Shri J.K. Jain, learned Assistant Solicitor
General.
For respondent No. 2: Shri Manish Datt, learned Senior Counsel
with Shri Pawan Gujar and Shri Rahul
Sharma learned counsel.
ORDER
(18/11/2015) Per S.K. Gangele J Both the revision petitions have been filed against the order dated 20/07/2011 passed in Sessions Trial No. 27/2011. By the aforesaid order, the trial court has held that there is no sufficient evidence to frame charge against respondent no. 4 Kamal Patel. The Court further held that there is also no evidence to frame charges against respondents no. 1 to 3 for commission of offence punishable under Section 25 of the Arms Act.
2. As per prosecution on 05/03/2008, Sudeep Patel, Arun (2) Jat, Deepak Sharan, Gyanesh and Durgesh Jat had reached at the house of Rajendra Patel in a vehicle rain forest colour Tavera bearing No. MP 04 CA 2789. The aforesaid persons forcibly entered in the house of Rajendra Patel and abused him. It is further alleged that some gun shots were fired at Rajendra Patel and in self-defence Rajendra Patel also fired two gun shots from his licenced weapon of 12 bore and .314 rifle in retaliation. The gun shots had hit Durgesh Jat who was severely injured and Arun Jat had also received injuries on his leg. Thereafter, the aforesaid persons reached at the government bungalow of Kamal Patel at Harda. The condition of Durgesh Jat was critical, thereafter his body was dis- appeared. The prosecution made allegation against Kamal Patel who was Revenue Minister at that time that he had helped the assailants in dis-appearance of body of injured Durgesh Jat.
3. Complainant Ram Vilas Jat lodged FIR at police station when no action was taken, a writ petition was filed before this court. The High Court vide order dated 11/11/2008 passed in W.P. No. 11986/2008 handed over the investigation to the CBI. Thereafter, the CBI Lukhnow registered a criminal case punishable under Section 451, 336 and 34 of IPC against Sandeep and three other unknown persons. After investigation, the CBI filed charge-sheet against Sudeep Patel, Deepak Saran, Arun Jat for commission of offence punishable under Sections 34/307/458/304(II) 201 of the IPC and section (3) 27 Arms Act and also filed charge sheet against Rajesh Lathi, Amit Patel, Manoj Kushwaha, Sandeep Patel and Kamal Patel for commission of offence punishable under Sections 120-B/ 304(II)/201 of IPC and against Raghunandan Singh under Section 120-B/201 of IPC. A supplementary charge-sheet was also filed against Gyanesh Jat @ Gyanu before the Court of Special Judicial Magistrate CBI, Indore. Thereafter, the case was committed to Sessions Judge, Harda and the Sessions Judge Harda transferred the case for inquiry and trial to First Additional Sessions Judge, Harda. At the time of framing of charge, the court has held that there is no evidence to frame charge against Kamal Patel consequently he was discharged. The court also discharged Sudeep Patel, Deepak Saran, Arun Jat from the charge of commission of offence punishable under Section 27 of the Arms Act.
4. Two criminal revision petitions have been filed against this common order i.e. Criminal Revision No. 1834/2011 has been filed by the Union of India through CBI and another criminal revision no. 89/2012 has been filed by Ramvilas Jat. Both the petitions have been heard together and disposed of by this common order.
5. Learned counsel appearing on behalf of the petitioners have contended that the order of First Additional Sessions Judge is nonest because the Indore bench of this Court in Criminal Revision No. 703/2011 set-aside the order of committal (4) dated 03/08/2011 passed by the Special Judicial Magistrate CBI, Indore by which the case was committed to the Sessions Judge, Harda and the Court further directed to pass an appropriate order in regard to committal, hence, the impugned order passed by the First Additional Sessions Judge, Harda is null and void. Learned counsel further contended that there is sufficient evidence to frame charges against accused Kamal Patel and also against other accused persons. Hence, revision petitions be allowed.
6. Learned Senior counsel Shri Manish Datt, appearing on behalf of Kamal Patel and other accused persons has contended that the order passed by the Court of First Additional Sessions Judge is in accordance with law in view of the provision of Section 462 of Cr.P.C. Learned senior counsel further contended that there is no evidence against the accused Kamal Patel to frame charge. He has further contended that there is no evidence on record to frame charge against other accused persons for commission of offence punishable under Section 25 of the Arms Act, hence, the order passed by the trial court is in accordance with law.
7. After passing of the impugned order dated 20/07/2011, Indore Bench of this Court vide order dated 17/09/2012 passed in criminal revision No. 703/2011 quashed the order of committal passed by the Special Judicial Magistrate CBI, Indore and further directed that the Magistrate shall pass an (5) appropriate order in regard to trial of the case in view of the notification issued by the High Court. Section 462 of Criminal Procedure Code prescribes that no order of any criminal court shall be set-aside merely on the ground the the proceeding had taken place in a wrong sessions division, district, sub- division or other local area, unless it appears that such error has in fact occasioned a failure of justice. The relevant section 462 of Cr.P.C. reads as under:-
"462. Proceedings in wrong place. No finding, sentence or order of any Criminal Court shall be set aside merely on the ground that the inquiry, trial or other proceedings in the course of which it was arrived at or passed, took place in a wrong sessions division, district, sub- division or other local area, unless it appears that such error has in fact occasioned a failure of justice. "
8. The Supreme Court has considered the provision of Section 531 of Cr.P.C. which was similar to Section 462 of Cr.P.C. in the matter of State of Karnataka Vs. Kuppuswamy Gownder AIR 1987 SC 1354. The Supreme Court has held as under:-
"It is therefore clear that even if the trial before the III Additional City Civil and Sessions Judge would have been in a Division other than the Bangalore Metropolitan Area for which III Additional City Civil and Sessions Judge is also notified to be a Sessions Judge still the trial could not have been quashed in view of Sec.
462. This goes a long way to show that even if a trial takes place in a wrong place where the Court has no territorial jurisdiction to try the case still unless failure of justice is pleaded and proved, the trial can not be quashed. In this view of the matter therefore reading Sec. 462 alongwith Sec. 465 clearly goes to show that the (6) scheme of the Code of Criminal Procedure is that where there is no inherent lack of jurisdiction merely either on the ground of lack of territorial jurisdiction or on the ground of any irregularity of procedure an order or sentence awarded by a competent court could not be set aside unless a prejudice is pleaded and proved which will mean failure of justice. But in absence of such a plea merely on such technical ground the order or sentence passed by a competent court could not be quashed. "
The same principle has been reiterated by the Supreme Court in Smt. Raj Kumari Vs. Dev Raj Vijh AIR 1977 SC 1101. The Supreme Court has held as under:-
"8. So where a magistrate has the "power' to try a particu- lar. application under section 488, and the controversy relates solely to his territorial jurisdiction, there should, ordinarily, be no reason why section 531 of the Code should not be applicable to the order made by him. It has therefore to be examined whether there were any such circumstances in this case for which the High Court could justifiably refuse to apply the provisions of section 531.
9.The first reason why the High Court .has not given the benefit of section 531 to the appellant is that an objection as to the jurisdiction of the Delhi Court was raised by the respondent "right at the first instance." Counsel for the respondent has strenuously argued that such. a benefit will not be available in a case where the magistrate knew that he had no jurisdiction, and persisted in proceeding with the trial under the, impression that section 531 of the Code, would, at any rate, validate his order. That, according to the counsel, amounted to an order by the magistrate giving the jurisdiction to himself by virtue of section 531. Reliance in this connection has been placed on Radharani v. Rahim Sardar AIR 1946 Cal 459; Sakuntala v. Thirumalayya(1966) 2 Mad LJ 326; State v. Tavara Naika AIR 1959 Mys 193; Sultan Chand v. Yogindra Nath Rar AIR 1944 Pesh 25, and Satwant Singh v. Smt. jaswant Kaur 1956 All LJ 134."(7)
Again the Supreme Court in the case of Mangaldas Raghavji Vs. State of Maharashtra and another AIR 1966 SC 128 the Supreme Court has held that mere fact that the proceeding is taken place in a wrong place would not vitiate the trial, unless it appears that such error has in fact occasioned a failure of justice.
9. In the present cases the petitioners had not taken any objection in regard to territorial jurisdiction at the time of framing of charge. The Additional Sessions Judge who had framed the charge was competent to try the case, there is no pleading that any substantial injustice has been caused or there is failure of justice. Hence, in my opinion on the basis of technical objection on the ground of territorial jurisdiction, the order passed by the trial court by which the accused persons have been discharged cannot be said to be void or nonest.
10. In regard to evidence on record of the case, the prosecution itself admitted that accused Kamal Patel was not present at the time of incident. The Trial Court observed after perusal of the evidence that after receiving gun shot injuries Durgesh Jat was taken along with other accused persons to the house of Kamal Patel at around 11.00 to 11.30 O'clock. Thereafter, injured Durgesh Jat was taken to another place and other accused persons returned back at around 12.00 to 12.30 O'clock whereas Kamal Patel reached at his residence at around (8) 1.30 to 2.00 O'clock in the night. It means that after dis- appearance of injured Durgesh Jat, Kamal Patel had reached at his residence. There is no evidence to prove that there was any intention to kill the injured Durgesh Jat by other accused persons. Contrary to this, other accused persons and Durgesh Jat had gone to the house of Rajendra Patel and thereafter Durgesh Jat had received gun shot injuries which were fired by Rajendra Patel, hence, there is no question of conspiracy between the accused persons and Kamal Patel to kill Durgesh Jat.
11. The investigating agency gathered the evidence to connect Kamal Patel with commission of offence on the ground that on the next day there is evidence that on the instruction of Kamal Patel some parts of the vehicle which was used in the offence were changed in order to remove the evidence and there is evidence of Mukul and another witness Devi Prasad that Kamal Patel had come to the house at around 1.30 O'clock. witness Loknath deposed that Kamal Patel told him and other persons that they did not reveal the incident to anybody. The evidence which is collected by the prosecution and produced along with the charge-sheet be perused then also it is a established fact that Kamal Patel reached at his house at Harda at around 1.30 to 2.00 O'clock in the night. It is also a fact which comes from the evidence that at around 11.00 to 12.00 O'clock other persons had taken Durgesh Jat to another place. (9) There is no evidence on record that prior to incident Kamal Patel had knowledge about the act of other persons. In such circumstances, in my opinion, the trial court has rightly held that there is no evidence to frame charge against Kamal Patel.
12. This is also a fact that Durgesh Jat received gun shot injuries fired by Rajendra Patel but no weapon was seized from any accused person. There was no gun shot injury received by Rajendra Patel. In such circumstances the trial court has rightly not framed charges against other accused persons for commission of offence punishable under Section 27 of the Arms Act.
13. The Supreme Court has considered the power of the Court in framing of charges in the cases of State of Karnataka Vs. L. Muniswamy and others AIR 1977 SC 1489; and held as under in regard to power of the court at the stage of framing of charge:-
"10.On the other hand, the decisions cited. by learned counsel for the respondents in Vadilal Panchaly. D.D. Ghadigaonkar AIR 1960 SC 1113 and Century, Spinning & Manufacturing Co. v. State of Maharashtra AIR 1972 SC 545 show that it is wrong to say that at the stage of flaming charges the court cannot apply. its judicial mind to the consideration whether or not there is any ground for presuming the commission of the offence by the accused. As observed in the latter case, the order framing a charge affects a person's liberty substantially and therefore it is the duty of the court to consider judi- cially whether the material warrants the framing of the charge. It cannot blindly accept the decision of the prose- cution that the accused be. asked to face a trial. In Vadilal Panchal's case. (supra) section 203 of (10) the old Code was under consideration, which provided that the Magistrate could dismiss a complaint if after considering certain matters mentioned in the section there was in his judgment no sufficient ground for proceeding with the case.. To art extent section 227 of the new Code contains an analogous power which is conferred on the Sessions Court. It was held by this Court, while considering the true scope of s. 203 of the old Code that the Magistrate. was not bound to accept the result of an enquiry or investigation and that he must apply his judicial mind to the material on which he had to form his judgment. These decisions show that for' the purpose of determining whether there is sufficient ground for proceeding against an accused the court possesses a comparatively wider discretion in the exercise of which. it can determine the question whether the material on the record, if unrebutted, is such on the: basis of which a conviction can-be said reasonably to be possible ".
14. The Supreme Court in Dilawar Babu Kurane Vs. State of Maharashtra AIR 2002 SC 564 has held as under in regard to exercise of power by the Court under Section 227 of Cr.P.C.:-
"12. Now the next question is whether a prima facie case has been made out against the appellant. In exercising powers under Section 227 of the Code of Criminal Procedure, the settled position of law is that the Judge while considering the question of framing the charges under the said section has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out; where the materials placed before the court disclose grave suspicion against the accused which has not been properly explained the court will be fully justified in framing a charge and proceeding with the trial; by and large if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully justified to discharge (11) the accused, and in exercising jurisdiction under Section 227 of the Code of Criminal Procedure, the Judge cannot act merely as a post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court but should not make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial [See Union of India versus Prafulla Kumar Samal & Another (1979 3 SCC 5)].
15. On the basis of the principle of law laid down by the Apex Court, there is no dispute that the court in exercise of power under Section 227 of Cr.P.C. can scrutinized the evidence for limited purpose to the extent that whether there is sufficient evidence to frame charges against the accused person or persons. In the present case, the court has considered the evidence in both cases. I have also considered the evidence and in my opinion, the trial court has not committed any error of jurisdiction in passing the impugned order. Consequently, I do not find any merit in both revision petitions, the petitions are hereby dismissed.
(S.K. GANGELE) JUDGE MISHRA (12) HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT JABALPUR Criminal Revision No. 1834/2011.
Union of India Versus Sudeep Patel and others.
For the petitioner: Shri J.K. Jain, learned Assistant Solicitor General.
For the respondents: Shri Manish Datt, learned Senior Counsel with Shri Pawan Gujar and Shri Rahul Sharma learned counsel.
Criminal Revision No. 89/2012.
Ram Vilas Jaat.
Versus CBI and another.
For petitioner: Shri Manikant Sharma, learned counsel. For respondent no. 1: Shri J.K. Jain, learned Assistant Solicitor General.
For respondent No. 2: Shri Manish Datt, learned Senior Counsel with Shri Pawan Gujar and Shri Rahul Sharma learned counsel.
ORDER
Post for : . .2015
(S.K. GANGELE)
JUDGE.
.2015