Patna High Court
Amit Kumar vs The State Of Bihar on 31 January, 2018
Author: Aditya Kumar Trivedi
Bench: Aditya Kumar Trivedi
Patna High Court CR. APP (SJ) No.3076 o f 2017 dt.31-01-2018 1
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.3076 of 2017
Arising Out of PS.Case No. -455 Year- 2014 Thana -BIHTA District- PATNA
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1. Amit Kumar S/o Dasai Yadav R/o Vill - Kauria Pali, P.S. Bihta, Dist - Patna.
.... .... Appellant/s
Versus
1. The State of Bihar.
.... .... Respondent/s
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Appearance :
For the Appellant/s : Mr. Uma Kant Shukla, Adv.
Mr. Ratnakar Pandey, Adv.
For the Respondent/s : Mrs. Abha Singh, APP
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CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
ORAL JUDGMENT
Date: 31-01-2018
Sole appellant, Amit Kumar has been found guilty for
an offence punishable under Section 304B of the IPC and sentenced to
undergo RI for 7 years, under Section 306 of the IPC and sentenced to
undergo RI for 5 years as well as to pay fine appertaining to Rs.
5000/- in default thereof, to undergo SI for 6 months additionally vide
judgment of conviction dated 08.09.2017 and order of sentence dated
16.09.2017passed by Additional Sessions Judge-7th Danapur in Sessions Trial No. 1019/2014.
2. PW-2, Vijay Kumar Singh filed a written report on 07.07.2014 disclosing therein that his daughter Simple Kumari @ Rinki Kumari was married with Amit Kumar son of Dasai Yadav, Resident of Pali Halt, PS-Bihta, Distt-Patna on 11.05.2013. At the time of marriage, he had gifted according to his means but her husband, Amit, mother-in-law, Chanwa Devi, father-in-law, Dasai Patna High Court CR. APP (SJ) No.3076 o f 2017 dt.31-01-2018 2 Rai, brother-in-law, (devar), Gopal Kumar and sister-in-law, (Nanad), Gita Kumari, advanced demand of golden chain when he took Bidai of Simple Kumari on the eve of marriage of his youngest daughter.
She had disclosed that she was being tortured on that score. Her husband took her away on the pretext of preparation of Adhar card without formal Bidai after the marriage of his younger daughter.
Subsequently thereof, she had narrated her awe on account of torture having been inflicted upon her by the aforesaid persons for golden chain. She had also demanded her clothe and other articles which remained here. Today morning when his son has gone to her Sasural with the aforesaid articles, he found her dead whereupon he informed.
Then thereafter, all the family members have gone to her place and found her dead. After close scrutiny, they have found her death on account of throttling.
3. After registration of Bihta PS Case No. 455/2014, investigation commenced and during course thereof, appellant, Amit Kumar along with her parents, Dasai Rai and Chanwa Devi were apprehended, on account thereof, charge-sheet was filed against them only keeping the investigation pending against others and on the basis thereof, the trial commenced and concluded in presence manner whereunder appellant, Amit Kumar has been found guilty and sentenced accordingly in terms as indicated hereinabove while Patna High Court CR. APP (SJ) No.3076 o f 2017 dt.31-01-2018 3 Chanwa Devi and Dasai Rai have been acquitted.
4. Defence case as is evident from the mode of cross-
examination as well as statement recorded under Section 313 CrPC is that of complete denial. From the suggestion having been given to the respective witnesses, it is apparent that a further suggestion has been given that the deceased committed suicide on account of having her ornaments illegally kept by her Naiharwala which was handed over to her younger sister at the time of marriage and for that, a day prior to the occurrence there was quarrel in between Pramod Kumar (PW 1) with the deceased. However, neither ocular nor documentary evidence has been adduced to substantiate the same.
5. In order to substantiate its case prosecution had examined altogether 7 PWs who are PW-1, Pramod Kumar, brother of the deceased, PW-2, Vijay Kumar Singh, father of the deceased, PW-
3, Awadhesh Kumar, co-villager, PW-4, Anil Kumar, an employee of the electricity department, Bihta (where Dasai Rai since acquitted) is also employed, PW-5, Virendra Bhushan Dutt Mishra (carries the same status), PW-6, Dr. Avinash Kumar who conducted the postmortem and PW-7, Mohan Prasad Singh, Investigating Officer.
Side by side had also exhibited Ext-1, Written report, Ext-2 and 2/1, Charge, Supplementary Charge relating to Bihta PS Case No. 204/2012, Ext-3, Formal FIR of Bihta PS Case No. 204/2012 and Patna High Court CR. APP (SJ) No.3076 o f 2017 dt.31-01-2018 4 Ext-4, order-sheets relating to Bihta PS Case No. 204/2012 while postmortem has been marked as „X‟ for identification.
6. As stated above, neither ocular nor documentary evidence has been adduced on behalf of defence.
7. Learned counsel for the appellant while challenging the verdict of guilt as well as sentence delivered by the learned lower court has submitted that the finding recorded by the learned lower court happens to be perverse and that being so, is fit to be set aside. To substantiate such plea, it has been submitted that at the same stroke neither offence under Section 304B IPC as well as 306 IPC would survive because of the fact that for the purpose of Section 304B IPC, there should be direct involvement while for the purpose of Section 306 IPC, there should be proper identification as an abettor though, major ingredients as well as obligation in terms of 113B as well as 113 A of the Evidence Act remains the same. That means to say, either there should have been proper identification of appellant to be abettor of the suicide and if once identified, the conviction and sentence relating to Section 304B of the IPC would not survive. Some activity also happens to be relating to vice versa. The finding of the learned lower court identifying the appellant guilty for an offence punishable under Section 304B as well as 306 IPC is indicative of the fact that the learned lower court was completely Patna High Court CR. APP (SJ) No.3076 o f 2017 dt.31-01-2018 5 confused and further was not in a position to infer with regard to complicity of the appellant from the evidence available on record and that being so, instead of recording of such kind of illegal finding would have acquitted the appellant. It has also been submitted that from the evidence having been adduced on behalf of prosecution itself it is apparent that there happens to be more probability of committing suicide by the deceased in the background of the fact that she had quarrelled with her brother as they had digested her ornaments which they managed to procure at the time of marriage of younger sister of the deceased. Presence of PW-1 at the Sasural of the victim is found admitted by all the witnesses including PW-1 himself apart from having his presence at the place of deceased, in the written report also and that happens to be the source of information received at the end of Naiharwala regarding death of deceased. Furthermore, when the evidence of PWs-3, 4 and 5 is properly scrutinized, it is manifest that in the aforesaid background, she on her own committed suicide and for that, none of her Sasuralwala happens to be responsible. That being so, appellant should be acquitted by getting judgment impugned set aside.
8. Then it has been submitted that while trial was going on, on 10.08.2017, alternative charge under Section 306 IPC was framed as provided under Section 216 of the CrPC and as Patna High Court CR. APP (SJ) No.3076 o f 2017 dt.31-01-2018 6 appellant/accused had not opined to cross-examine the witnesses even after addition of the charge, that being so, whatsoever been incorporated in the order-sheet dated 10.08.20107, irrespective of being in contravention of Section 216 or 217 of the Cr.PC but, did not jeopardize interest of the accused/appellant and so, in any view of the matter, the appeal is fit to be allowed.
9. During course of argument, a query has been made by the court that considering the finding recorded by the learned lower court to be perverse, justifying setting aside the judgment impugned and getting remanded to the learned lower court for re-
appraisal then in that circumstance, what would be the fate of acquitted accused, namely, Dasai Rai and Chanwa Devi in light of the fact that once the judgment is set aside and remanded for re-appraisal by the learned lower court irrespective of prosecution keeping silent over challenging the finding recorded by the learned lower court to the extent of Dasai Rai and Chanwa Devi, would forbade the court to exercise its power under Section 482 of the CrPC in order to dispense with justice and on that very score, the learned counsel for the appellant has submitted that Section 482 CrPC is a general power which could not substitute Section 378 CrPC, which deals with power of appellate court while dealing with judgment of acquittal and same will be available only after having been challenged. Patna High Court CR. APP (SJ) No.3076 o f 2017 dt.31-01-2018 7
10. On the other hand, learned APP during course of argument happens to be of the view that the manner whereunder the learned lower court had dealt with the trial coupled with the finding having been recorded at the end of the learned lower court appears to be sufficient for having it set aside and being remitted the matter to pass judgment afresh after going through the evidences of the PWs in its right perspective along with obligations which the accused shares in case death happens to be inside a house dominated by him which the learned lower court failed to consider in its right perspective.
Furthermore, it has also been submitted that the inherent power vested to the High Court in terms of 482 CrPC is the inherent power which the High Court could exercise in any capacity as it has to be exercised in order to prevent abuse of the process of the court adversely affecting the core of justice.
11. Whether during course of exercising appellate power the High Court can take recourse of Section 482 Cr.PC has been taken into account by the Hon‟ble Apex Court in the case of Rishipal v. State of UP as reported in (2014) 4 PLJR 118 (SC) whereunder it has been held as follows:-
"10. Before we deal with the respective contentions advanced on either side, we deem it appropriate to have thorough look at Section 482 Cr.P.C., which reads:
"Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any orders of Patna High Court CR. APP (SJ) No.3076 o f 2017 dt.31-01-2018 8 this Code or to prevent abuse of process of any Court or otherwise to secure the ends of justice".
A bare perusal of Section 482 Cr.P.C. makes it crystal clear that the object of exercise of power under this section is to prevent abuse of process of Court and to secure ends of justice. There are no hard and fast rules that can be laid down for the exercise of the extraordinary jurisdiction, but exercising the same is an exception, but not a rule of law. It is no doubt true that there can be no straight jacket formula nor defined parameters to enable a Court to invoke or exercise its inherent powers. It will always depend upon the facts and circumstances of each case. The Courts have to be very circumspect while exercising jurisdiction under Section 482 Cr.P.C."
12. Furthermore, the Hon‟ble Apex Court has again dealt with power under Section 482 CrPC in Surya Baksh Singh v.
State of Uttar Pradesh as reported in 2014(14) SCC 222 under paragraphs-7, 17, 18, 19, 20, 21, 22, 23, 24, 25.
7. Last, but not least in our appreciation of the law, Section 482 of the CrPC stands in solitary splendour. It preserves the inherent power of the High Court. It enunciates that nothing in the CrPC shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary, firstly, to „give effect to any order under the CrPC‟, words which are not to be found in the Code of Civil Procedure, 1908 (hereafter referred to as „CPC‟). Ergo, the High Court can, while exercising inherent powers in its criminal jurisdiction, take all necessary steps for enforcing compliance of its orders. For salutary reason Section 482 makes the criminal Court much more effective and all pervasive than the civil Court insofar as ensuring obedience of its orders is concerned. Secondly, Section 482 clarifies that the CrPC does not circumscribe the actions available to the High Court to prevent abuse of its process, from the inception of proceedings till their culmination. Patna High Court CR. APP (SJ) No.3076 o f 2017 dt.31-01-2018 9 Judicial process includes compelling a respondent to appear before it. When the Court encounters a recalcitrant Appellant/convict who shows negligible interest in prosecuting his appeal, none of the Sections in Chapter XXIX of the CrPC dealing with appeals, precludes or dissuades it from dismissing the appeals. It seems to us that passing such orders would eventually make it clear to all that intentional and repeated failure to prosecute the appeal would inexorably lead not merely to incarceration but more importantly to the confirmation of the conviction and sentence consequent on the dismissal of the appeal. Thirdly, none of the provisions of the CrPC can possibly limit the power of the High Court to otherwise secure the ends of justice. While it is not possible to define the concept of „justice‟, suffice it to say that it encompasses not just the rights of the convict, but also of victims of crime as well as of the law abiding section of society who look towards the Courts as vital instruments for preservation of peace and the curtailment or containment of crime by punishing those who transgress the law. If convicts can circumvent the consequence of their conviction, peace, tranquility and harmony in society will be reduced to a chimera. Section 482 emblazons the difference between preventing the abuse of the jural process on the one hand and securing of the ends of justice on the other. It appears to us that Section 482 of the CrPC has not been given due importance in combating the rampant malpractice of filing appeals only for scotching sentences imposed by criminal Courts.
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17. The criminal justice delivery system is being held to ransom by convicts who have developed the devious and dishonest practice of escaping punishment or sentence by filing appeals, obtaining bail or suspension of sentence and thereafter disappearing beyond the reach of the arms Patna High Court CR. APP (SJ) No.3076 o f 2017 dt.31-01-2018 10 of the law. The inherent powers under Section 482 of the CrPC, which the Supreme Court has on several occasions expounded to have existed from time immemorial, predating the present as well as the previous CrPC, must be pressed into action lest the already fragile policing and prosecuting branches of governance are rendered redundant. Since Section 482 of the CrPC was not considered by either of the Three Judge Benches of this Court, we have not found it necessary to resort to recommending the matter for being laid before a Larger Bench. The facts and pronouncement in Bani Singh cannot be extrapolated to the factual matrix before us. On the contrary the opinion in Ram Naresh Yadav as well as in Kishan Singh are available to us to ensure that preventive action is devised to combat the abuse of Court process so that facilitative steps are taken to secure the ends of justice.
18. Section 482 of the CrPC is of singular and seminal significance. The statutory provision which immediately comes to mind is Section 151 of the CPC because to a great extent the language is identical. We are juxtaposing the two Sections for the facility of reference:-
Section 482 of CrPC | Saving of inherent power of High Court:- Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.
Section 151 of CPC Saving of inherent powers of Court.- Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such order as may be necessary for the ends of justice or to prevent abuse of the process of the Court.
It is at once obvious that whereas Section 482 of the CrPC is available only to the High Courts, Section 151 can be resorted to at any stage of civil judicial proceedings in any of the hierarchical tiers. Secondly, the use of the word „otherwise‟ in Section Patna High Court CR. APP (SJ) No.3076 o f 2017 dt.31-01-2018 11 482 has the avowed effect of boundlessly broadening the boundaries of inherent powers of the High Court in exercise of its criminal jurisdiction. Thirdly, Section 482 can be employed to ensure obedience of any order passed by the Court because of the phrase "to give effect to any order under this Code".
19. State of Karnataka v. L. Muniswamy, (1977) 2 SCC 699 enunciates that in exercise of its inherent powers in criminal matters "the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed.....The ends of justice are higher than the ends of mere law though justice has got to be administered according to laws made by the Legislature. The compelling necessity for making these observations is that without a proper realisation of the object and purpose of the provision which seeks to save the inherent powers of the High Court to do justice between the State and its subjects, it would be impossible to appreciate the width and contours of that salient jurisdiction".
20. A Three-Judge Bench clarified in Krishnan v. Krishnaveni, (1997) 4 SCC 241 that although a second Revision before the High Court after dismissal of the first one by the Court of Sessions is barred by Section 397(3), the inherent powers of the High Court under Section 482 are nevertheless available albeit with restraint so as to avoid needless multiplicity of the proceedings. This Court had opined that "8...when the High Court notices that there has been failure of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, it is but the salutary duty of the High Court to prevent the abuse of the process or miscarriage of justice or to correct irregularities .....
9. The inherent power of the High Court is not one conferred by the Code but one which the High Court already has in it and it is preserved by the Code".
Patna High Court CR. APP (SJ) No.3076 o f 2017 dt.31-01-2018 12
21. Raj Kapoor v. State (Delhi Administration), AIR 1980 SC 258 considered the question whether the inherent power of the High Court under Section 482 stand repelled when the revisional power under Section 397 overlaps. The view was that-
" 10. Section 482 contradicts this contention because nothing in the Code, not even Section 397 can affect the amplitude of the inherent power preserved in so many terms by the language of Section 482. Even so, a general principle pervades this branch of law; when a specific provision is made, easy resort to inherent power is not right except under compelling circumstances. Not that there is absence of jurisdiction but that inherent power should not invade areas set apart for specific power under the same Code".
22. In State of Punjab v. Kasturi Lal, (2004) 12 SCC 195 : 2004 Crl. L.J. 3866, after cautioning against reckless use of Section 482 this Court has observed-
10..."Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone Courts exists. Authority of the Courts exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the Court has power to prevent such abuse. It would be an abuse of process of the Court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers Court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of Court or quashing of these proceedings would otherwise serve the ends of justice"
23. Advanced Law Lexicon by P. Ramanatha Aiyar defines Justice as - "The exercise of authority or power in maintenance of right; vindication of right Patna High Court CR. APP (SJ) No.3076 o f 2017 dt.31-01-2018 13 by assignment of reward or punishment; the administration of law or the form and processes attending it; the principle of just dealing".
24. It seems to us that it is necessary for the Appellate Court which is confronted with the absence of the convict as well as his counsel, to immediately proceed against the persons who stood surety at the time when the convict was granted bail, as this may lead to his discovery and production in Court. If even this exercise fails to locate and bring forth the convict, the Appellate Court is empowered to dismiss the appeal. We fully and respectfully concur with the recent elucidation of the law, profound yet perspicuous, in K.S. Panduranga v. State of Karnataka (2013) 3 SCC 721. After a comprehensive analysis of previous decisions our learned Brother had distilled the legal position into six propositions:-
(19.1) That the High Court cannot dismiss an appeal for non-prosecution simpliciter without examining the merits; (19.2) That the Court is not bound to adjourn the matter if both the Appellant or his counsel/lawyer are absent; (19.3) That the Court may, as a matter of prudence or indulgence, adjourn the matter but it is not bound to do so; (19.4) That it can dispose of the appeal after perusing the record and judgment of the trial court. (19.5) That if the accused is in jail and cannot, on his own, come to court, it would be advisable to adjourn the case and fix another date to facilitate the appearance of the Appellant-accused if his lawyer is not present, and if the lawyer is absent and the court deems it appropriate to appoint a lawyer at the State expense to assist it, nothing in law would preclude the court from doing so; and (19.6) That if the case is decided on merits in the absence of the Appellant, the higher court can remedy the situation.
25. The enunciation of the inherent powers of the High Court in exercise of its criminal jurisdiction already articulated by this Court on several occasions motivates us to press Section 482 into operation. We reiterate that there is an alarming and sinister increase in instances where convicts have filed appeals apparently with a view to circumvent and escape Patna High Court CR. APP (SJ) No.3076 o f 2017 dt.31-01-2018 14 undergoing the sentences awarded against them. The routine is to file an appeal, apply and get enlarged on bail or get exempted from surrender, and thereafter wilfully to become untraceable or unresponsive. It is the bounden duty cast upon the Judge not merely to ensure that an innocent person is not punished but equally not to become a mute spectator to the spectacle of convict circumventing his conviction. (See Stirland v. Director of Public Prosecutions, 1944 AC 315 quoted with approval by Arijit Pasayat, J. in State of Punjab v. Karnail Singh (2003) 11 SCC
271). If the Court is derelict in doing its duty, the social fabric will be rent asunder and anarchy will rule everywhere. It is, therefore, imperative to put an end to such practice by the expeditious disposal of appeals. The inherent powers of the High Court, poignantly preserved in Section 482 of the CrPC, can also be pressed into service but with care, caution and circumspection.
13. So there happens to be no barrier in getting the power exercised under Section 482 of the CrPC at any stage or in any criminal proceeding including an appeal in order to secure the ends of justice otherwise, the High Court which happens to be the head of Institution of the State would be a silent spectator while adjudicating upon the matter during course of which, the illegality severely affecting the institution, even being traced out would find helpless or hapless whichever may be. It is true that natural justice demands that no order should be passed in absence of a person affected under the banner of audi alteram partem as well as that happens to be the reason for presence of Section 401(2) of the CrPC whereunder while Patna High Court CR. APP (SJ) No.3076 o f 2017 dt.31-01-2018 15 exercising suo motu power of revision, an opportunity has to be given to the person being affected therewith. That means to say before passing of an order, the affected person is to be heard by way of having an opportunity on that very score.
14. Because of the fact that from the judgment impugned, it is apparent that it speaks non-application of mind as well as non appreciation of material having on record in its right perspective, though detailed discussion is forbidden so that one should not feel influenced, prejudiced.
15. Accordingly, Dasai Rai and Chanwa Devi, residents of Electric Colony Raghopur, PS-Bihta, Distt-Patna, are hereby show-caused as to why not the judgment impugned be set aside to their interest also and for that, office is direct to serve a show-
cause upon them. The aforesaid exercise must be completed within a fortnight.
16. List after receipt of execution report.
(Aditya Kumar Trivedi, J)
perwez
AFR/NAFR AFR
CAV DATE NA
Uploading Date 09.02.2018
Transmission 09.02.2018
Date