Jharkhand High Court
Dhananjay Nath Sahi & Ors vs State Of Jharkhand on 30 March, 2010
IN THE HIGH COURT OF JHARKHAND, RANCHI.
Cr. Rev. No. 97 of 2009
1.Tilak Yadav
2.Biru Yadav
3.Krishna Yadav
4.Jago Sao @ Jageshwar Sao@Yogendra Prasad Sahu .............................. Petitioners Versus The State of Jharkhand ........................................... Opp. Party Coram :- Hon'ble Mr. Justice D.K. Sinha For the Petitioners :- Mr. Jitendra . S. Singh Mr. A.K. Pandey For the State :- Mrs. Neetu Singh A.P.P. C.A.V. On 19.1.2010 Delivered on 30-3-2010 ORDER 8- 30-3-2010 The instant Criminal Revision is directed against the order impugned dated 27.11.2008 passed by the learned Sessions Judge, Latehar in S.T. No. 122 of 2008 corresponding to G.R. No. 89 of 2006 arising out of Chandwa P.S. Case No. 23 of 2006 by which the petition filed on behalf of the petitioners for their discharge under section 227 of the Code of Criminal Procedure was dismissed. The name of petitioner Dhananjay Nath Sahi was deleted by the order of this Court dated 25.8.2009 on his death.
2. The prosecution story in short was that the informant-Officer-in-charge of Chandwa police station recorded his self statement on 26.2.2006 at about 17.30 hours narrating inter alia that on telephonic message received that some extremists had been assaulting the pilgrims who had arrived at ' Nagar temple,' he with the police party rushed there and enquired from the shopkeepers about the occurrence and only from whom he could gather that the extremists had taken away about 8/10 pilgrims including one Lakhan Prasad Jaiswal with them to unknown place. On such information the police party proceeded tracking the retreat of the extremists but finding and spotting the police coming towards them, the extremists resorted firing which was retaliated by the police. Realizing the pressure of the police the extremists escaped after releasing the persons who were abducted by them. The police party intercepted various incriminating articles including literatures, posters, hand bills and note books at some distance besides utensils and empty cartridges to which seizure list was 2 prepared in presence of the witnesses. The statement of the victim Lakhan Prasad Jaiswal was recorded who narrated that he and other 8/10 pilgrims were abducted from near the temple by the extremists on the gun point and they alleged against Lakhan Prasad Jaiswal that he was the spy of the police and that he was brutally assaulted by them. He further apprised that Biru Yadav, Krishna Yadav and Tilak Yadav had made arrangement of breakfast and meal for the extremists and that they had been supplying food to them. In the meantime, extremists escaped after gun battle with the police party. He disclosed the complicity of several accused persons as extremists, engaged in criminal activities of abduction and other crimes, and also implicated the petitioners Tilak Yadav,Biru Yadav, Krishna Yadav etc.
3. Mr. Jitendra S. Singh, the learned counsel for the petitioners submitted that the petitioners were innocent and were not at all concerned with the alleged offence. The counsel added that the statements of several witnesses were recorded in paragraph 99 of the case diary who were consistent that Lakhan Prasad Jaiswal was on inimical term with the petitioners on the ground of land disputes, that apart, disputes related to management of 'Nagar Temple'. The management of the said temple was ultimately transferred in the name of deity with the constitution of the trustee committee who looked after the interest of the properties which were assigned in the name of deity. Mr. Singh explained that the other victims, who were abducted, such as Mohat Khan and Chandra Shekhar Pandey and other were also examined and their statements were recorded as contained in paragraphs 13,14 and 15 of the case diary, who were consistent by not implicating the petitioners in any manner for their abduction or otherwise also. However, the allegation that was left out against the petitioners was that they had been supplying food to the extremists (MC.C.) outlaws. As regards the complicity of the petitioner Jago Sao @ Jageshwar Sao @ Yogendra Prasad Sahu was concerned, there was no material at all against him except his name was found mention in the note books which were recovered by the police in course of investigation that he had given certain amount to the extremists (M.C.C.) and for that the petitioners cannot be held criminally liable for hatching a criminal conspiracy against the Union of India. A person cannot be held accused only on the ground that his name was mentioned in the 3 note book of the extremists as donor without any corroborative evidence that he was seen by some witnesses delivering certain amount to the M.C.C. people or their agent and therefore, criminal prosecution of the petitioner Jago Sao @ Jageshwar Sao @ Yogendra Prasad Sahu would tantamount to misuse of the process of the court.
4. Finally Mr Singh submitted with reference to the Famous 'Hawala Case' reported in 1998(2) Eastern Criminal Cases 196(SC). The Apex Court in Central Bureau of Investigation Versus V.C. Shukla and others held :-
"Even if the entry becomes admissible as relevant evidence, still the statement made therein shall not alone be sufficient evidence to charge any person with liability unless their trustworthiness is corroborated by independent evidence. Entries are not "admissions" to attract Section 21 of Evidence Act."
5. The learned A.P.P. opposed the contention as raised on behalf of the petitioners on the point of discharge for the alleged offence proposed under sections 364/120B of the Indian Penal Code and Section 17 of CLA Act.
6. Having regard to the facts and circumstances of the case, I find that the allegation against the petitioners Tilak Yadav, Biru Yadav and Krishna Yadav was of providing food to the extremists (M.C.C) outlaws whereas the allegation against the petitioner Jago Sao @ Jageshwar Sao @ Yogendra Prasad Sahu was that his name was found mentioned in the note book which was recovered from the hide-out of the extremists containing that he was donor and had donated Rs.50,000/- to them. The learned A.P.P. failed to point out any other material against the petitioners in the entire case diary and therefore, on the face value of the allegation I find that offence as alleged under section 364 read with section 120B of the Indian Penal Code is not attracted against the petitioners Tilak Yadav, Biru Yadav and Krishna Yadav. However, in the facts and circumstances of the case I find that there is prima facie allegation against the petitioners under section 17 of the CLA Act which is triable by the Judicial Magistrate, Ist Class. Similarly, no prima facie offence is made out against the petitioner Jago Sao @ Jageshwar Sao @ Yogendra Prasad Sahu for the said offence only because his name was found mentioned in the note book of the Naxalities (M.C.C.) out laws as profounded by the Supreme 4 Court of India in Famous ' Hawala Case' referred to herein before. In the facts and circumstances, the criminal prosecution of the petitioner Jago Sao @ Jageshwar Sao @ Yogendra Prasad Sahu,to that I subscribe the submission of the counsel, would tantamount to misuse of the process of the court as the entry of the name of the petitioner Jago Sao @ Jageshwar Sao @ Yogendra Prasad Sahu made in the note book is not admissible under the Evidence Act. Accordingly, the petitioner Jago Sao @ Jageshwar Sao @ Yogendra Prasad Sahu is discharged from his criminal liability in Chandwa P.S. Case No. 23 of 2006 corresponding to G.R. No. 89 of 2006(S.T. No. 122 of 2008) pending in the court of Sessions Judge, Latehar .For the reasons stated above, I find that prima facie offence is made out under sections 17 of the CLA Act against the petitioners Tilak Yadav,Biru Yadav and Krishna Yadav and accordingly they are directed to be proceeded under such section which is triable by the Judicial Magistrate of Ist Class.
7. With this observation this Criminal Revision is allowed in part in the manner indicated above and accordingly, the learned Sessions Judge, Latehar is directed to proceed under the provision of Section 228(1)(a) Cr.P.C. by transferring the case records of concerned to the court of CJM, Latehar.
(D.K. Sinha, J) SD