Jharkhand High Court
Om Parimal Gupta & Ors vs State Of Jharkhand & Anr on 4 December, 2008
Author: Jaya Roy
Bench: Jaya Roy
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Revision No 143 of 2007
Om Parimal Gupta & others ..... Petitioners
Versus
The State of Jharkhand and another ..... Opposite Parties
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CORAM : HON'BLE MRS. JUSTICE JAYA ROY
For the Petitioners: Mr.J. K. Pasari, Advocate
For the State : Mr.S.K.Srivastava (A.P.P.)
5/ 4.12.2008- The instant revision application has been filed against the Judgment dated 21.11.2006 passed in Criminal Appeal No. 251 of 2004 by Sri Pradip Kumar Choubey, Additional Sessions Judge, Fast Track Court No. IV,Dhanbad whereby all the petitioners have been convicted under section 323 I.P.C. and directed the petitioners to execute a bond a rupees 6000/- with two sureties to maintain peace for a period of one year under section 4 of the Probation of Offender Act.
2. The prosecution case in brief is that the complainant opposite party no.2 filed a complaint case against the petitioners and other three persons with an allegation that on 19.8.1994 the petitioners entered into his Sweets shop premises and started assaulting him and his brother and damaged the articles of the shop. It is further stated that the petitioner no.6 has attempted to throw the boiled milk to the face of the complainant but any how he managed to save himself. The petitioners have also attempted to throw the complainant into the well. The further case of the complainant was that in course of assaulting and throwing Boiled milk, as fire broke out causing burning of Tirpal etc. In the mean time police personnel arrived and brought the complainant and his brother to the Jharia Police Station where the complainant stated about the occurrence the police reduced it into the writing and also took the signature of the complainant and thereafter forwarded them to Prasad Nursing Home for treatment. After some time, police personnel took the complainant and his brother into the custody and forwarded them to the court of C.J.M. on the next day on a false and concocted case lodged by Om Prokash Gupta, father of the petitioner nos.1, 2, 3, and 5. The complainant and his father were released on bail on 7.9.1994. The complainant was under impression that the police must have taken action against the accused petitioners in pursuance to the case lodged by him but on enquiry, he came to know on 23.10.94 that the police did not lodge any F.I.R. at all. Thereafter he filed this complaint case on 25.10.94 before the court.
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3. After considering the evidence of the complainant and his witnesses, the trial court convicted the petitioners under section 147/ 323/ 427 of the I.P.C. and further convicted the petitioner no.6 under section 324 I.P.C. and sentenced all of them. They have been directed to be released after executing a bond of rupees 6000/- each with two sureties under section 4 of the Probation of the Offender Act for maintaining peace for the period of one year.
4. The petitioner preferred an appeal against the aforesaid conviction and sentence before the Additional Session Judge, F.T.C. No IV, Dhanbad which was registered as Cr.Appeal No, 251 of 2004. After hearing both the parties, the appellate court convicted the petitioners only under section 323 I.P.C. but did not interfered with the sentence awarded by the trial court i.e. the appellants to be released after executing a bond of rupees 6000/- with the two sureties to maintain peace for a period of one year. The appellate court has further observed that as the judgment has been passed by the trial court in 2004 and as the period of maintaining peace was only for one year therefore the appellants ( petitioners ) are not required to execute any bond as that part of the judgment becomes infructuous by the efflux of time.
5. The counsel of the petitioners has submitted that no charge was framed against the petitioner no.6 Anand Kumar Gupta under section 323 I.P.C. but both the courts below have not taken into consideration of the same. He has further submitted that the complaint petition was filed after more than two months of the alleged date of the occurrence. It is further stated that not a single independent witness has been examined and this cast a cloud of suspicion on the alleged occurrence.
6. I have gone through the judgments passed by both the courts below. From the judgment of the trial court I find the trial court has framed the charges against the accused persons under section 323/ 427/147/324 I.P.C. against all the accused persons and the same was read over and explained to them in Hindi to which they pleaded not guilty and claimed to be tried. Regarding delay I find the complainant has explained the delay sufficiently. The complainant has explained in his complaint petition that he was under impression that the police had certainly registered the F.I.R. filed by the complainant against the accused persons but when he enquired about this he found that the police did not registered any case against the accused persons only then he filed a complaint petition. Therefore, the delay has been properly explained by the complainant. More over, I feel only delay in 3 filing the F.I.R. would not go to show that the case against the accused persons was completely false or got up.
7. The appellate, which was the final court of fact, had made the following findings:-
"In the present case as I found that presence of appellant at the time and place of occurrence is admitted by the appellants themselves as they have filed another case against the complainant and his family members. On perusal of exhibit A to C it appears to me that there was a scuffle between the complainant and the appellants. Hence according to me offence under section 323 is made out against the appellant. The learned trial court has rightly held guilty all the appellants under section 323 of the I.P.C. On this score the judgment of the learned trial court is hereby affirmed and it does not require any interference".
8. The counsel of the petitioner submits that admittedly one Magistrate has recorded the evidence of few witnesses and part of the evidence was recorded by another Magistrate. Thereafter the statements of the accused persons have been recorded under section 313 Cr.P.C. by another Magistrate who later on after hearing both the parties, pronounced the judgment. In view of the aforesaid facts, the counsel of the petitioner states that both the courts below have failed to take into consideration of section 326(3) of the Cr.P.C. which says:-
"Nothing in this section applies to summary trials or to cases in which proceedings have been stayed under section 322 or in which proceedings have been submitted to a superior Magistrate under section 325".
9. In my view this submission of the counsel of the petitioner is not at all tenable as the present case is a summon case not summary trial case. The section 326(3) of Cr.P.C is only applicable to summary trial case not to the summon trial. The summary trial comes into play according to the provision mentioned in section 260 under Chapter XXI of the Cr.P.C. :-
"260. Power to try summarily :-(1) Not withstanding anything contained in this Code:-
(a) any Chief Judicial Magistrate;
(b) any Metropolitan Magistrate;
(c) any Magistrate of the first class specially empowered in this
behalf by the High Court".
10. It is clear from the judgment of the trial court that it was tried by Sri S.S.Yadav, 4 Judicial Magistrate, Ist Class, Dhanbad but the counsel of the petitioner has no where stated that the said Magistrate was specially empowered by the High Court to do summary proceeding nor the said trial Magistrate had follow the procedure of the summary trial.
11. Therefore I find no reason to interfere with impugned judgment passed by the appellate court. Accordingly this revision application is dismissed.
(Jaya Roy,J) BS/