Jharkhand High Court
Jagdish Singh Munda @ Birla Munda vs The State Of Jharkhand on 7 February, 2024
Author: Navneet Kumar
Bench: Navneet Kumar
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal No. 589 of 2017
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(Against the judgment dated 25.02.2017 and order of sentence dated 28.02.2017
passed in Sessions Trial No. 22 of 2010/Sessions Trial No. 75 of 2010 arising out
of G.R. Case No. 2034 of 2009, corresponding to Angara P.S. Case No. 28 of
2009 by the court of Sri Ramesh Kumar, Additional Judicial Commissioner-
XIII-cum-P.O. Commercial Court, Ranchi)
Jagdish Singh Munda @ Birla Munda --- --- Appellant
Versus
The State of Jharkhand --- --- Respondent
.......
For the Appellant : Mr. Dhananjay Kumar Dubey, Advocate
Mr. Raju Koiri, Advocate
For the State : Mr. Fahad Alam, A.P.P.
PRESENT
HON'BLE MR. JUSTICE NAVNEET KUMAR
JUDGMENT
07.02.2024 This appeal is directed against the judgment dated 25.02.2017 and order of sentence dated 28.02.2017 passed in Sessions Trial No. 22 of 2010/Sessions Trial No. 75 of 2010 arising out of G.R. Case No. 2034 of 2009, corresponding to Angara P.S. Case No. 28 of 2009 by the court of learned Additional Judicial Commissioner-XIII cum P.O. Commercial Court, Ranchi whereby and whereunder the appellant has been convicted for the offence punishable Under Sections 4/5 of the Explosive Substance Act and under Section 17(2) of the CLA Act and has been sentenced to undergo R.I. for 5 years with a fine of Rs.5000/- and in default of payment of fine, he has been further directed to the undergo S.I. for 6 months separately under Section 4 and 5 of the Explosive Substance Act and further R.I. for 3 years and a fine of Rs.2000/- with a default sentence of S.I. for 3 months under Section 17(2) of the CLA Act. All the sentences were directed to run concurrently.
2. The present case has been registered on the basis of the written report (Ext. 4) of Sushil Kumar (P.W.7) S.I. Police dated 20.05.2009 addressed to the Officer-in-charge, Angara P.S., which is as under:
On 20.05.2009 at 7 hours the informant proceeded from Rahe O.P. 2 along with Officer-in-charge Rahe Sateyndra Narayan Singh reserved armed force, Sub Inspector Kishore Singh, Angara P.S., SAP official Subedar, Major Join Soi along with other armed forces for raid on CPI Moist/extremists. It is further alleged that when they reached at Saptaki forest area 16 KM, they saw two persons on a motorcycle trying to flee away, but the police party apprehended the two persons on the said motorcycle. On being asked, they told their name as Pravin Kumar Bhagat and Jagdish Singh Munda. Since there was no local witness present there, therefore, in the presence of reserve force witness Prabhu Kujur & Sanjeev Kumar Dubey, search was made as per law. It is further alleged that during the search from Jagdish Munda@ Birla Singh Munda
3 Detonators from his right side of pant pocket and from shirt upper pocket Maoist pamphlets were recovered. Further 10 pieces of Rs. 100 denomination notes, Hero Honda Passion Motorcycle with blue sticker Chesis No. MBLNA10ER94D29574, Engine No. 152797CMB4BG was recovered and on inquiry Jagdish Singh Munda told that the said motorcycle belonged to Dhaneshwar Mahto. In course of search of Pravin Kumar Bhagat explosive Powder Gel -90 and Maoist pamphlet and a Sony Erricson Mobile No. 9608876016 along with Rs. 149/- were recovered from his possession. Thereafter, seizure list was prepared in the presence of witnesses. It is further alleged that both the persons confessed that the recovered detonator and bomb were to be used in maoist activities for constructing a 'Barudi Surang' and Maoist pamphlets were to be used in maoist activities. However, they failed to produce any valid document regarding the explosives recovered from their possession. It is further alleged that on inquiry from the accused persons, accused Jagdish Singh Munda had told that previously he was sent to jail in extortion case under Silli P.S. and accused Pravind Kumar told that he went to jail due to his involvement in extremist work at Tamar P.S. They also confessed that they are involved in anti-democratic movement, extortion and other Maoist activities. On this basis written report case is instituted.
3. On the basis of aforesaid written report Angara P.S. Case No. 28/2009 dated 21.05.2009 was registered U/S 3/4 Explosive Substance Act, 17 C.L.A. Act, 13 U.P.A. Act and after investigation the Investigating 3 Officer submitted two charge sheets. In course of investigation the explosive material were sent to FSL. Ranchi and the report of forensic expert, FSL, Ranchi revealed that explosive material were in working condition. On the completion of investigation the Investigating Officer submitted the charge sheet. The sanction was also obtained from the authority concerned under Explosive Substance Act. Initially, charge No. 41/2009 dated 17.08.2009 was submitted against the accused Pravin Kumar Bhagat and Jagdish Singh Munda @ Birla Munda U/s- 17 CLA Act and U/s- 13 of UPA Act and thereafter the second charge sheet No. 85/2009 dated 31.10.2009 was submitted against two accused Pravin Kumar Bhagat and Jagdish Singh Munda @ Birla Munda U/s- 4/5 of Explosive Substance Act. After submission of first charge sheet the Ld. C.J.M, Ranchi took cognizance on 19.08.2009 U/s 17 of CLA Act and under Section 13 of UPA Act against aforesaid two accused persons and after submission of supplementary charge sheet Ld. C.J.M, Ranchi took cognizance on 18.11.2009 U/s- 4/5 of Explosive Substance Act against the aforesaid two accused and the cases of the two accused were committed to the court of sessions on 22.12.2009 and thereafter both cases were amalgamated.
4. The charge was framed on 06.03.2010 by the learned Additional Judicial Commissioner, FTC, Ranchi against the aforesaid two accused persons namely Praveen Kumar Bhagat and Jagdish Singh Munda @ Birla Munda U/s- 4/5 of Explosive Substance Act, U/s 13 Unlawful Activities (Prevention) Act, 1967 and 17 CLA Act, which was explained to them but they denied and claimed to be tried.
5. It is pertinent to mention here that the proceedings against accused Praveen Kumar Bhagat was dropped vide order dated 05.05.2015 due to his death.
6. The learned court below after conducting the full-fledged trial passed the impugned judgment of conviction and order of sentence, which is under challenge.
7. Heard learned counsel for the appellant and the learned A.P.P. for the State.
Arguments advanced on behalf of the Appellant:
8. At the outset it is submitted on behalf of the appellant that the 4 appellant does not want to argue this case on the point of judgment of conviction i.e., on merit and therefore the argument on behalf of the appellant is confined only on the point of sentence.
It is submitted on behalf of the appellant that the appellant has been convicted for the offence punishable Under Sections 4/5 of the Explosive Substance Act and under Section 17(2) of the CLA Act and has been sentenced to undergo R.I. for 5 years with a fine of Rs.5000/- and in default of payment of fine, he has been further directed to the undergo S.I. for 6 months separately under Section 4 and 5 of the Explosive Substance Act and further R.I. for 3 years and a fine of Rs.2000/- with a default sentence of S.I. for 3 months under Section 17(2) of the CLA Act.
9. It has further been submitted on behalf of the appellant that it is a case of the year 2009 and this appellant is a poor man as is evident from the report submitted by the Probation Officer, Home (Jail) Department, Govt. of Jharkhand, which was called for by this Court vide order dated 07.08.2017. It has further been pointed out that this appellant has 4 children including two daughters and two sons and he belongs to lower middle class family, socially and economically very poor. He has no criminal antecedent as of now, since there are two criminal cases apart from the present and amongst two cases, in one of them he has been acquitted and in the other case he has completed his sentence and now he is leading a very normal life along with his family members. Further, it has been pointed out that he has remained in custody in the pre- conviction period from 22.05.2009 to 11.12.2009 and in the post- conviction period from 25.02.2017 to 04.10.2017, total custody of 1 year 1 month and 28 days. In this view of the matter, it is urged on behalf of the appellant that instead of awarding the sentence of imprisonment by sending the appellant again in jail, he may be awarded sentence to imprisonment for the period already undergone by him by modifying the order of sentence. He is also ready to pay a suitable amount of fine as this Court may deems it fit.
Arguments advanced on behalf of the State.
10. On the other hand learned A.P.P. appearing on behalf of the State has opposed the contentions raised on behalf of the appellant and 5 submitted that appellant has been convicted for a very serious offence under Section 4/5 of the Explosive Substance Act and Section 17(2) of the CLA Act and therefore, he does not deserve lenient view in awarding the sentence. However, he has accepted that as a matter of fact the socio- economic strata of the appellant is concerned, it was called at the time of hearing of bail application of the appellant and accordingly the report was received on 12.09.2017 from the Probation Officer, Home (Jail) Department, Govt. of Jharkhand stating therein that income of the appellant is very low and he belongs to lower middle class family. Learned A.P.P. also does not deny the fact that on earlier occasion there were two criminal case pending against the appellant, apart from the present one, in one of which he has been acquitted and in the second one he has completed the sentence.
Appraisal & Findings
11. Having heard the parties, perused the record of the case including the LCR.
12. It is found that the appellant has been convicted for the offence punishable Under Sections 4/5 of the Explosive Substance Act and under Section 17(2) of the CLA Act and has been sentenced to undergo R.I. for 5 years with a fine of Rs.5000/- and in default of payment of fine, he has been further directed to the undergo S.I. for 6 months separately under Section 4 and 5 of the Explosive Substance Act and further R.I. for 3 years and a fine of Rs.2000/- with a default sentence of S.I. for 3 months under Section 17(2) of the CLA Act. It is further found that learned counsel for the appellant does not want to argue this case on merit i.e., on the point of judgment of conviction and confines his argument only on the point of sentence. It is further found that the maximum sentence awarded by the learned court below is of 5 years and the appellant has already remained in jail for a substantive period of time i.e., 1 year 1 month 28 days. Further, it is found that appellant is ready to pay a suitable amount of fine as this Court deems it fit.
13. It further appears that appellant belongs to lower middle class group and his socio-economic condition is very poor as per the report dated 12.09.2017 furnished by the Probation Officer, Home (Jail) Department, Govt. of Jharkhand, which was called for by this Court and 6 is available on record. It is also found that appellant is a married person living with his wife and four children including two daughters and two sons. It is further found that earlier two cases were instituted against the appellant apart from the present one, in one of which he has been acquitted and in another case he has completed his sentence. Therefore, as of now there is only one case pending i.e., the present one.
14. It is further found from the impugned judgment that the order of sentence has been passed by the learned court below without any mention of specific provision of law with respect to section 4/5 of the Explosive Substance Act inasmuch as Section 4 consists of two clause i.e., 4(a) and 4(b) and Section 5 consist of two clause namely 5(a) and 5(b) and the learned Court below has not mentioned under which clause of Section 4 and 5 the conviction and sentences have been imposed. The learned court below did not apply its judicial mind and in a sweeping manner imposed the sentence only mentioning Section 4/5 of the Explosive Substance Act.
15. Having taken into consideration the aforesaid facts and circumstances of this case, it is found that no useful purpose would be served by sending the appellant again to the jail to serve the remaining period of sentence and therefore, it is found just and proper that the purpose of justice would be meted out if the sentence of fine is imposed instead of further sending the appellant to the jail to serve the remaining period of sentence of imprisonment.
16. Accordingly, this Court upholds the judgment dated 25.02.2017 passed in Sessions Trial No. 22 of 2010/Sessions Trial No. 75 of 2010 arising out of G.R. Case No. 2034 of 2009, corresponding to Angara P.S. Case No. 28 of 2009 by the court of learned Additional Judicial Commissioner-XIII cum P.O. Commercial Court, Ranchi for the offence punishable Under Sections 4/5 of the Explosive Substance Act and under Section 17(2) of the CLA Act and alters order of sentence dated 28.02.2017 under which the appellant is sentenced to undergo imprisonment for a term of the period already undergone by him and further, in the interest of justice, the appellant is sentenced to pay the fine of a sum of Rs.12,000/- (Rupees Twelve Thousand only) collectively under all the Sections/ counts of 4/5 of the Explosive Substance Act and 7 17 (2) of the CLA Act, as imposed by the learned Court below.
17. Since the appellant is on bail and therefore, a time of four months is given to the appellant to pay the aforesaid fine and in default of payment of fine he is directed to undergo R.I. for a period of 2 years collectively under all the three counts under Section 4/5 of the Explosive Substance Act and Section 17(2) of CLA Act. The appellant may deposit the fine amount through the Nazarat of the concerned Civil Court.
18. The learned trial court is directed to ensure that the said fine amount is deposited within the stipulated period of time and if the same is not deposited by the appellant, then he will serve the sentence as awarded in case of default of payment of fine by taking all necessary measures as per the provisions of law.
19. The appellant has been allowed to deposit the said fine amount through the Nazarat of the concerned Civil Court and the moment appellant deposits the fine amount, he shall be released and/ discharged from the liabilities of bail bonds accordingly in this case.
20. This Criminal Appeal is dismissed as above.
21. Let the Lower Court Records and the copy of judgment be also transmitted to the learned Court below for its compliance in letter and spirit.
(Navneet Kumar, J.) A.Mohanty