Allahabad High Court
Dinesh Tiwari S/O Ganga Prasad Tiwari vs State Of U.P. And Mahendra Prasad Tiwari ... on 11 December, 2007
JUDGMENT Shiv Charan, J.
1. The present application has been moved under Section 482 Cr.P.C. for quashing the order dated 1.9.2007 passed by Addl. Sessions Judge/FTC No. 3 Basti in S.T. No. 207 of 2007 under Section 302, 323, 504 and 506 IPC State v. Ram Vijai and Ors. By this order learned Sessions Judge framed the charge against the accused-applicant for the offence under Section 302 IPC.
2. The perusal of the file shows that on 5.2.2006 Mahendra Prasad Tiwari complainant lodged a FIR against the applicants Dinesh Tiwari, Sadhu Saran and Ram Vijai Yadav for the offence under Sections 302, 323, 504 and 506 IPC. P.S. Mahuli District Sant Kabir Nagar. It was registered at Crime No. 84 of 2006. It was alleged in the FIR that the applicant along with Sadhu Saran committed murder of Arvind Kumar Tiwari son of the complainant. It has also been alleged in the FIR that about two and half years earlier applicant Dinesh Tiwari kidnapped and enticed his daughter Seema. But nothing was done in this matter and the applicant Dinesh Tiwari had been living with his daughter and he had been pressurizing him to accept him as his son in law. But complainant refused from doing it and hence he was inimical from him. For electrification of the village electric poles were fixed for last several datys'. On 5.2.2006 at about 12'0 Clock Dinesh Tiwari and his companion Sadhu Saran arrived at the field of the complainant. The complainant with the consent of electric department filled up the pit dug for the electric pole. Dinesh Tiwari and his companions started abusing him for doing so. Ravi Shankar son of the complainant told them not to abuse them. On it both the accused persons took out country made pistol and Dinesh Tiwari caused injuries on his head by the butt of country made pistol at his house. These accused persons chased him up to the house and the complainant with folded hand told to them not to beat him. On it Dinesh Tiwari threw the JANEOO' (secret thread) and declared that he will not bear it till he will not eliminate all of them. Then these accused persons rushed towards the house of the complainant. The another son Arvind Kumar Tiwari was standing in the verandah both the accused persons opened fire on Arvind Kumar Tiwari and as a result of firing he died on the spot and after committing the murder, the accused persons escaped from the spot on motorcycle. The accused persons were seen by the witnesses escaping from the spot. No witness is ready to give evidence due to fear.
3. Investigation was started by the police of the offence. But afterwards the investigation was transferred to CBCID by the order of the Government. CBCID submitted charge sheet against Sadhu Saran Yadav co-accused for the offence under Section 302, 323, 504 and 506 IPC. And the CJM took the cognizance of the offence vide order dated 8.5.2006, and it was mentioned in the charge sheet that investigation shall continue against rest of the accused persons. The case was committed to the Court of Sessions of Sadhu Saran Yadav registered at S.T. No. 149 of 2006 State v. Sadhu Saran Yadav and Mahendra Prasad Tiwari was examined by trial court as P.W. I against Sadhu Saran Yadav. Afterwards CBCID submitted the charge sheet against Ram Vijai Yadav for the offence under Section 302, 323, 504 and 506 IPC. But the charge sheet was submitted against the applicant for the offence under Section 323, 504 and 506 IPC. The charge sheet was not submitted against the applicant for the offence under Section 302 IPC. The cognizance was taken by CJM on charge sheet No. 5A of 2006 on 23.1.2007. Bail was granted to the applicant for the offence under Section 323, 504, 506 IPC The case was committed to the Court of Sessions by the CJM after taking cognizance and the charge was framed against the applicant also along with 302 IPC according lo applicant and on the application of the complainant order was passed for taking the applicant into custody for the offence under Section 302 IPC.
4. I have heard learned Counsel for the applicant, learned AGA for the State and perused the entire material on record.
5. It has been argued by learned Counsel for the applicant Sri Satish Trivedi that no charge sheet was submitted against the applicant for the offence under Section 302 IPC. And no cognizance was taken by the Magistrate for the offence under Section 302 IPC against the applicant. But learned Sessions Judge after committal framed the charge under Section 302 IPC also. It was specifically mentioned in the charge sheet that against the applicant charge sheet is submitted for the offence under Section 323, 504, 500 IPC. He argued that as the charge sheet against the applicant was submitted for non cognizable offence hence it must have proceeded as a complaint case as provided in explanation of Section 2D of Cr.P.C. That all of a sudden learned Sessions Judge framed the charge under Section 302 IPC and this is most unjustified on the part of the Sessions Judge. That the applicant has been deprived off from his valuable rights as has been provided under Section 227 Cr.P.C. That entire procedure adopted by the Sessions Judge is faulty. The applicant was assured that he will be tried for the offence under Section 323, 504, 506 IPC. That for offence triable by Sessions Judge there should be proper compliance of Section 207 Cr.P.C. That as prejudice has been caused to the applicant by the order of Sessions Judge by framing charge under Section 302 IPC hence deserves to be set aside.
6. Learned AGA opposed the argument of learned Counsel for the applicant and it has been argued that there is no illegality or apparent irregularity or procedural error in the order of the Sessions Judge of framing the charge under Section 302 IPC. In the present case as the charge was framed after receipt of the file in the Sessions Court and the charge was not amended and on the basis of the material available on record the Sessions Judge was convinced that there are prima facie allegation against the applicant also for framing the charge for offence under Section 302 IPC. He also argued that as the case of co-accused Sadhu Saran Yadav was committed to the Court of Sessions earlier and statement of complainant was recorded in the case and when the case of co-accused Dinesh Tiwari and Ram Vijai Yadav was committed to the Court of Sessions,hence learned Sessions Judge perused the entire evidence including the statement of complainant recorded in the case of Sadhu Saran Yadav and after perusing the evidence the charge was framed.
7. I have considered all the facts and circumstances of the case. I have only to see that whether the procedure adopted by the Sessions Judge was defective or faulty. I am not required for disposal of the application under Section 482 Cr.P.C. that whether there was sufficient evidence against the applicant or not for framing the charge under Section 302 IPC Although according to the FIR there was direct allegation against the applicant for committing the murder of Arvind Kumar Tiwari. There is a specific allegation that applicant Dinesh Tiwari and Sadhu Saran Yadav opened fire on Arvind Kumar Tiwari with the intention of causing his death and both of them fired on him. It is not such a case in which the applicant was not named in the offence rather direct involvement of the applicant has been alleged in the FIR and the complainant was the eye witness of the incident. But the investigation was entrusted to the CBCID by the orders of the State Government. It is not very material to ascertain that under what circumstances, the investigation of the case was transferred to CBCID from the Civil police. But it is a fact that investigation of the case was entrusted to CBCID and it is also material that CBCID submitted charge sheet against Sadhu Saran Yadav for the offence under Section 302, 323, 504 and 506 IPC and cognizance was taken by the court in the month of May' 2006 and this case was also committed to the court of Sessions. But at the time of the submitting the charge sheet against Sadhu Saran Yadav the investigation against the applicant and other co-accused was kept pending by the CBCID. At that time no final report etc. was submitted by CBCID against the applicant. It is also a matter to be decided by the trial court whether this act of CBCID was justified or not.
8. The perusal of the file shows that CBCID submitted a common charge sheet against Ram Vijai Yadav and Dinesh Tiwari in case crime No. 84 of 2006 on 11.1.2007 and the cognizance was taken by the CJM on 23.1.2007 and h was mentioned in the charge sheet that the offence under Section 302 IPC is made out against the accused Ram Vijai Yadav whereas against the applicant Dinesh Tiwari under Section 323, 504, 506 IPC. As a common charge sheet was submitted by the 10 in Crime No. 84 of 2006 against Ram Vijai Yadav and Dinesh Tiwari hence the CJM was perfectly justified in committing the case to the court of Sessions. The allegation against Dinesh Tiwari even of the offence under Section 323, 504, 506 IPC was in crime case No. 84 of 2006 and in view of several pronouncement of Hon'ble Apex Court if some persons are facing trial in one and same crime then all must be tried simultaneously in one case irrespective of the fact that against some of the persons, there are allegations of a non cognizable offence. If there are allegations of Section 302 IPC against some of the accused and there are allegation under Section 323, 504, 506 IPC against rest of the accused then the trial will be the same against all and in my opinion, the CJM was fully justified in committing the entire case to the court of Sessions. Learned Magistrate could have not been said justified in separating the case of the applicant for the offence under Section 323, 504, 506 IPC and retain the file. This might have been the most unjustified act on the part of the CJM. Hence when in the charge sheet offences were mentioned which is exclusively triable by the court of Sessions and the case of one of the accused had already been committed to the court of Sessions Hence the case of the applicant was also to be committed to the court of Sessions. I also disagree with the argument of learned Counsel for the applicant that as the charge sheet was submitted against the accused applicant for the offences under Section 323, 504, 506 IPC hence in view of Section 2(D) explanation it must have proceeded as complaint case. This was possible only if there were allegations of only of non cognizable offence then the case should have been tried as complaint case. But in the present case there were allegations of Section 302 IPC against the applicant also and the matter was investigated by the police for the offence under Section 302 IPC against the applicant also and the common charge sheet was submitted against the applicant and Ram Vijai Yadav and cognizance was also taken by the Magistrate on this charge sheet submitted against Ram Vijai Yadav and Dinesh Tiwari for the offence under Section 302, 323, 504 and 506 IPC. Moreover Section 155(4) is also relevant for the purpose of investigation of a non cognizable offence and there were allegations of murder against the applicant. Hence the police has rightly conducted the investigation and a common charge sheet was submitted. Hence the Magistrate also took the cognizance for the offence and he was also justified by committing the case to the Court of Sessions to face trial for the offence.
9. It has been argued by learned Counsel for the applicant that as charge sheet was submitted against the applicant for the offence under Sections 323, 504, 506 IPC and learned Sessions Judge was not justified in framing the charge out right for the offence under Section 302 IPC. In view of Section 211 and other provision in this connection of Chapter XVII and Section 226 at the time of framing the charge the court is required to peruse the entire material on record. As I have stated that charge sheet against one of the accused namely, Sadhu Saran Yadav was submitted earlier and the case of this accused was committed to the court of sessions and this accused was facing trial before the Sessions Judge. The statement of the complainant was also recorded in the case against Sadhu Saran Yadav. When there were two cases out come of the same offence then as a matter of convenience both are to be consolidated. And for framing the charge the entire evidence on the file including on the file of Sadhu Saran Yadav was also to be considered by the Sessions Judge for framing the charge and as there was sufficient oral evidence against the applicant hence the charge was framed under Section 302 IPC also. If the Sessions Judge has framed the charge against the applicant for the offence under Section 302 IPC also then the Sessions Judge cannot be said to be unjustified. Because the learned Sessions Judge shall consider the entire evidence and allegations against each of the accused for framing of the charge. And in the present case also the learned Sessions Judge framed the charge after considering the entire evidence. Learned Counsel for the applicant has not argued that the charge framed under Section 302 IPC against the applicant is not substantiated by any evidence present in the file. But learned Advocate only raised the technical objection that as the applicant was convinced that he will face trial for the offence under Section 323, 504 and 506 IPC hence by the order of learned Sessions Judge the applicant was surprised and prejudiced. In the present case it cannot be said that the applicant was prejudiced in any respect because the trial will have to commence and statement of the witnesses were to be recorded and there is no reason for prejudice to the applicant if charge has been framed under Section 302 IPC.
10. Much has been argued by learned Counsel for the applicant that the applicant has been deprived from the benefit of Section 227 Cr.P.C. Under this section the applicant is entitled for discharge from the offence and as the Sessions Judge framed the charge without affording any opportunity to be heard then the applicant has been deprived from the benefit of Section 227 Cr.P.C. I disagree with the argument of learned Counsel for the applicant. It is been provided by Section 226 Cr.P.C. that when accused appeared or brought before the court in pursuance of the commitment of the case under Section 209 Cr.P.C. the prosecutor shall open the case by describing the charge brought against the accused and stating by what evidence he proposes the guilt of the accused. It cannot be said that in the present case learned Sessions Judge has not framed the charge by following Section 226 Cr.P.C. and Section 227 shall come into force if the charge is not to be framed as provided under Section 226 Cr.P.C. But in the present case the charge was framed in the manner as provided under Section 226 Cr.P.C. and a detailed order is not required to be passed by the Sessions Judge in framing the charge.
11. Learned Counsel for the applicant also argued that learned Sessions Judge after framing the charge under Section 302 IPC has gone beyond that. Application of the complainant was allowed. The complainant moved an application that a charge has been framed against the applicant for the offence under Section 302 IPC then he must be taken into custody as he was granted bail only for the offence under Section 323, 504 and 506 IPC. Learned Counsel for the applicant argued at length that as the applicant was granted bail earlier in this crime hence there was no justification for the Sessions Judge for passing the order for taking him into custody for the offence under Section 302 IPC. I have perused the order of learned Sessions Judge dated 5.10.2007 and learned Sessions Judge has passed the detailed and speaking order in this connection and in passing the order he placed reliance on the Judgment of Hon'ble Apex Court and also this court. It has been alleged by the Sessions Judge that as the charge was framed for the offence under Section 302 IPC hence the applicant must be taken into custody for the offence because he was granted bail earlier in a very minor offence under Sections 323, 504 and 506 IPC. The offence under Section 302 IPC is a major offence whereas the offence under Section 323, 506 and 504 IPC is a very minor offence and triable by Magistrate only and this order of Sessions Judge is perfectly justified after framing the charge under Section 302 IPC Applicant must be taken into custody and he must seek bail.
12. In the circumstances of the case applicant also cannot be permitted to remain on the already furnished bail bonds or require the applicant to furnish fresh bail bonds for the offence under Section 302 IPC without taking him into custody. This will be a mockery of the system. There are serious allegations against the applicant of the offence under Section 302 IPC and for this offence he must be taken into custody and he must move for fresh bail for the offence.
13. For the aforesaid reason I have arrived at the definite conclusion that the order of learned sessions Judge is perfectly justified. There appeals no illegality or irregularity or procedural error in the order of Sessions Judge and the application under Section 482 Cr.P.C. deserves to be dismissed at this stage.
The application under Section 482 Cr.P.C. is dismissed accordingly.