Jharkhand High Court
Dhullu Mahto @ Dhullu Mahato vs The State Of Jharkhand ...... Opp. Party on 12 December, 2022
Author: Sanjay Prasad
Bench: Sanjay Prasad
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Revision No. 1157 of 2022
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Dhullu Mahto @ Dhullu Mahato ...... Petitioner Versus The State of Jharkhand ...... Opp. Party
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CORAM: HON'BLE MR. JUSTICE SANJAY PRASAD
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For the Petitioner : Mr. Indrajit Sinha, Advocate Mr. Akhouri Awinash Kumar, Advocate.
For the State : Mr. Manoj Kumar, GA-III
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I.A. No. 9593 of 2022
06/12.12.2022 The present Criminal Revision No. 1157 of 2022 has been
filed on behalf of the petitioner challenging the judgment dated 24.08.2022 passed in Criminal Appeal No. 188 of 2019 by the learned Additional Sessions Judge-XVI, Dhanbad whereby learned Additional Sessions Judge-XVI, Dhanbad has dismissed the Criminal Appeal No. 188 of 2019 and affirmed the judgement of conviction and order of sentence dated 09.10.2019 passed by Ms. Shikha Agrawal, learned Sub-Divisional Judicial Magistrate, Dhanbad in Katras P. S. Case No. 120 of 2013 corresponding to G. R. No. 2023 of 2013 [T.R. No. 990 of 2019] whereby the petitioner along with some other accused persons have been held guilty under Section 225 read with Section 149 of the Indian Penal Code and under Sections 353 read with Section 149 of the Indian Penal Code, 323 read with Section 149 of the Indian Penal Code, 332 read with Section 149 of the Indian Penal Code and under Section 147 of the Indian Penal Code and the petitioner has been sentenced to undergo R. I. for a period of twelve (12) months and to pay the fine of Rs. 1000/- under Section 323 read with Section 149 of the Indian Penal Code and has been sentenced to undergo R. I. for a period of twelve (12) months and to pay the fine of Rs. 2000/- under Section 353 read with Section 149 of the Indian -2- Penal Code and has been sentenced to undergo R. I. for a period of eighteen (18) months and to pay the fine of Rs. 3000/- under Section 332 read with Section 149 of the Indian Penal Code and has been sentenced to undergo R. I. for a period of twelve (12) months and to pay the fine of Rs. 1000/- under Section 147 of the Indian Penal Code and has been sentenced to undergo R. I. for a period of eighteen (18) months and to pay the fine of Rs. 1000/- under Section 225 read with Section 149 of the Indian Penal Code and in default of payment of fine, the petitioner has been further sentenced to undergo R.I. for a period of three (3) months on each counts.
All the sentences have been directed to run concurrently.
2. I.A. No. 9593 of 2022 has been filed under Rule 159 of the Jharkhand High Court Rules, 2001 on behalf of the petitioners for grant of exemption to the petitioner from surrendering in the learned Court below.
3. Heard learned counsel for the petitioner and the learned counsel for the State.
4. It is submitted by the learned counsel for the petitioner that the petitioner has been falsely implicated in this case due to political rivalry. It is submitted that the petitioner has already remained in custody for about 11 months i.e. from 09.07.2013 to 15.06.2014. It is further submitted that the petitioner has remained in custody for approximately about 2/3rd of total period of sentence and warrant has issued against him. It is submitted that petitioner has a good prima facie case. It is submitted that although the petitioner has been convicted on various counts, however, Section 332 and Section 225 read with Section 149 of the Indian Penal Code are not made out against him. It is further submitted that in the case of Vivek Rai and Another Versus High Court of Jharkhand -3- through Registrar General and Ors. reported in (2015) 12 SCC 86, it has been held by Hon'ble Supreme Court that this Court has inherent power to exempt the petitioner from surrender. It is submitted that this Court has even allowed exemption to one Bindeshwari Devi @ Dineshwari Devi in Criminal Revision No. 268 of 2022 vide order dated 03.08.2022 on the ground of her custody and the web copy of the said order has been produced during course of argument before this Court. It is further submitted that although the petitioner has produced defence witnesses, but defence evidence was not considered by the learned Court below while passing the final judgment and as such, the petitioner may be exempted from surrender in the learned Court below on the ground of his period of custody i.e. approximately about 2/3 rd of total period of sentence.
5. Mr. Manoj Kumar, learned GA-III appearing on behalf of the State has opposed the prayer of the petitioner from surrendering in the Court below and has submitted that in view of the provisions of Rule 159 of the Jharkhand High Court Rules, 2001, the petitioner is bound to surrender forthwith thus this Criminal Revision may be heard. It is further submitted that the constitutional validity of Rule 159 of the Jharkhand High Court Rules, 2001 has been upheld by the Hon'ble Supreme Court in the case of Vivek Rai and Another Versus High Court of Jharkhand through Registrar General and Ors. reported in (2015) (12) SCC
86. It is further submitted that the petitioner has been made accused because at his instance the co-accused Rajesh Gupta was freed from the custody of the police, who was involved in other cases. It is submitted that custody of the petitioner is not a ground to exempt the petitioner from surrendering in the learned Court below as this petitioner has played major role in get freed to the -4- accused Rajesh Gupta from the police vehicle and as such, prayer of the petitioner for exemption from the surrender in the learned Court below may be rejected.
6. Perused the records of this case and considered the submissions of both the sides and prayer made in I.A. No. 9593 of 2022.
7. It appears from the impugned judgment that while the police had arrested co-accused Rajesh Gupta and got his seated inside the police vehicle, the petitioner along with 40-45 persons interfered and got freed the co-accused - convict Rajesh Gupta. It further appears that the petitioner along with other accused persons and other 35-40 associates named in the FIR and who were armed with deadly weapons and had surrounded the police vehicle and attacked the police party and this petitioner along with his associate forcibly got opened the gate of the police vehicle and forcibly ousted the police officers from the police vehicle and scuffled with the police party and also assaulted the police personnels and tried to snatch the pistol of the informant and is said to have torn the uniform of the police-258 namely Ram Bachan Ram, although the police had secured the warrant of arrest of the accused Rajesh Gupta, however, the petitioner had threatened the police personnels and questioned the warrant of the Court.
8. It transpires that vide judgement of conviction and order of sentence dated 09.10.2019, learned Sub-Divisional Judicial Magistrate, Dhanbad has held guilty the petitioner along with some other accused persons for the offences under Section 225 read with Section 149 of the Indian Penal Code and under Sections 353 read with Section 149 of the Indian Penal Code, 323 read with Section 149 of the Indian Penal Code, 332 read with Section 149 -5- of the Indian Penal Code and under Section 147 of the Indian Penal Code and judgement of conviction and order of sentence has been upheld by the learned Additional Sessions Judge-XVI, Dhanbad in Criminal Appeal No. 188 of 2019 and who dismissed the Criminal Appeal No. 188 of 2019 vide judgment dated 24.08.2022.
9. It also transpires that the petitioner was sitting a M.L.A. at the relevant point of time and he appears to have led the mob. It also transpires that several persons including this petitioner are named in the FIR and due to the act of the petitioner and other 35- 40 persons, the accused Rajesh Gupta was got freed while he was sitting in police vehicle. The conduct of the petitioner does not appear to be satisfactory as the petitioner being a M.L.A. instead of protecting the Rule of law and order, has attacked the police party with the help of some anti-social elements and got freed the accused Rajesh Gupta.
10. So far as the case relied upon by the petitioner in Criminal Revision No. 268 of 2022 to one Bindeshwari Devi @ Dineshwari Devi vide order dated 03.08.2022 is concerned, in the said case the lady was in custody for about 31 months out of imprisonment of 36 months for the offences under Section 409/34 of the Indian Penal Code and by taking lenient view, this Court had allowed Bindeshwari Devi @ Dineshwari Devi from exemption to surrender before the learned Court below.
11. It is further evident that Hon'ble Supreme Court has upheld the constitutional validity of Rule 159 of the Jharkhand High Court Rules, 2001 in the case of Vivek Rai and Another Versus High Court of Jharkhand through Registrar General and Ors. reported in (2015) 12 SCC 86. Rule 159 of the Jharkhand High Court Rules, 2001 is discretionary in nature and it is for the -6- Court to consider that whether the exemption may be allowed to a person, if sufficient cause has been shown.
12. In such a case like this, Custody of the petitioner for around 11 months is not sufficient cause, shown by the petitioner, rather the conduct of the petitioner appears to be emboldened enough to attack police party and got freed the accused Rajesh Gupta from the police vehicle, who was being taken to the police station at the instance of warrant issued by the learned Court below.
13. In that of the matter, this Court is not exercising its discretionary power of Rule 159 of the Jharkhand High Court Rules, 2001 for exemption from surrendering of the petitioner.
Accordingly, the prayer of the petitioner for exemption from surrendering in the learned Court below is rejected.
14. Under the circumstances, I.A. No. 9593 of 2022 is hereby rejected.
15. The petitioner is directed to surrender in the learned Court below within four weeks from today.
Cr. Revision No. 1157 of 202216. Call for the scanned copy of the Lower Court Records.
17. Put up this case on 10.01.2023.
(Sanjay Prasad, J.) Kamlesh/