Patna High Court - Orders
Aman Kumar vs The State Of Bihar on 11 July, 2019
Author: Aditya Kumar Trivedi
Bench: Aditya Kumar Trivedi
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.1827 of 2017
Arising Out of PS. Case No.-207 Year-2013 Thana- BIHRA District- Saharsa
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Aman Kumar, Son of Kusheshwar Mahto, resident of Village- Patori, P.S.-
Bihra, District- Saharsa.
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
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Appearance :
For the Appellant/s : Mr. Shiva Shankar Sharma-Advocate
Mr. Arun Kumar Sinha-Advocate
For the Respondent/s : Mr. Shyed Ashfaque Ahmad-A.P.P.
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CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
ORAL ORDER
7 11-07-2019Heard learned counsel for the appellant as well as learned Additional Public Prosecutor.
2. Aman Kumar, sole appellant, who happens to be husband of the deceased Neha Kumari has been found guilty for an offence punishable under Section 304-B of the I.P.C. and sentenced to undergo R.I. for eight years vide judgment of conviction dated 25.04.2017 and order of sentence dated 27.04.2017 passed by the 2nd Additional Sessions Judge, Saharsa in Sessions Trial No.104 of 2014 arising out of Bihra P. S. Case No.207 of 2013.
3. Grand father Lakhan Mahto injured/ deceased Neha filed written report on 09.11.2013 disclosing therein that Neha Kumari was married with Aman Kumar about three years ago. Patna High Court CR. APP (SJ) No.1827 of 2017(7) dt.11-07-2019 2/10 After marriage, she had gone to her sasural where she began to avail her marital life as a result of which, begotten two children. About two years back, Kusheshwar Mahto, Aman Kumar, Tara Devi, Guddi Kumari began to advance demand of Rs.70,000/- for motorcycle and Rs.30,000/- for LCD, for which deceased was being tortured, in spite of repeated request at their end that they (accused) should not indulge in such activity considering their financial condition.
4. It has further been disclosed that in the morning of 07.11.2013, deceased had talked with him and requested to come immediately as all the accused are adamant to set her ablaze. He, immediately rushed and after reaching at the sasural of deceased, found her burnt and was tossing. She on her own disclosed that in order to kill, her father-in-law, mother-in-law, husband, Nanad conjointly put her on fire. Then, he carried her to Surya Clinic and from there to Apolo Hospital, Patna. She has sustained severe burn and is in precarious condition.
5. It is evident from the record that four persons have been arrayed as an accused namely Kusheshwar Mahto, Aman Kumar, Tara Devi and Guddi Kumari under written report, basis of registration of Bihra P. S. Case No.207 of 2013 as well as for column of formal F.I.R. It is further evident from the record that Patna High Court CR. APP (SJ) No.1827 of 2017(7) dt.11-07-2019 3/10 out of four, only Aman Kumar has been arrested and produced before the Court on 20.12.2013. In order to ward off applicability of Section 167 of the Cr.P.C., chargesheet has been submitted only against Aman Kumar, keeping investigation pending against remaining, while Guddi Kumari was not sent up, but having no positive order on that very score at the end of lower Court and on the basis thereof, vide order dated 14.03.2014, cognizance of an offence punishable under Section 304-B/34 of the I.P.C. has been taken and the proceeding proceeded only against accused Aman Kumar. From the order sheet dated 14.03.2014, it is further evident that office has been directed to open supplementary record with regard to other co- accused and that order has already been complied as is evident from margin of the order sheet.
6. In the aforesaid background, case has been committed, charge has been framed against sole accused Aman Kumar and trial concluded by way of recording the judgment of conviction and sentence against Aman Kumar as indicated herein above. At the time of hearing of instant appeal an order dated 23.07.2015 passed in Criminal Miscellaneous No.39878 of 2014 has been perceived wherein during consideration of prayer for anticipatory bail of other accused, than who was Patna High Court CR. APP (SJ) No.1827 of 2017(7) dt.11-07-2019 4/10 charge-sheeted at an earliest relating to an offence punishable under Section 304-B I.P.C., certain direction by way of mandamus has been issued by a Co-ordinate Bench. Before considering its impact over the present appeal, it looks appropriate to record two relevant paragraphs:-
"2. Therefore, it is directed that in none of the cases where the offences punishable under section 304(B) of the Indian Penal Code is alleged, the concerned court shall permit the splitting of the cases, and unless all the accused are arrested or granted regular bail or anticipatory bail, it shall not be split at all. The trial shall be comprehensive, and the officer who deviates and acts other than this, shall be liable to be proceeded against.
4. .......................................................... The Registrar General of this Court shall ensure that the copies of this order are circulated to all the District and Sessions Judges, and all the Superintendents of Police in the State."
7. After going through the aforesaid direction, now the question, which arose for consideration before this Bench is over legality of the trial on account of utter violation thereof.
8. The learned counsel for the appellant has submitted that aforesaid direction could be found duly staled under Section 465 of the Cr.P.C. and so, it could not adversely affect upon the prospect of instant appeal. It has further been stated that the Patna High Court CR. APP (SJ) No.1827 of 2017(7) dt.11-07-2019 5/10 defect if any, during course of conduction of trial, in contradiction of direction, could not adversely affect upon the legality of the trial as no such kind of order, being blanket in nature could be passed as the same happens to be contrary to spirit of law. Now, coming to merit of the appeal, it has been submitted that witnesses are inconsistent over each and every aspect, and further, as the prosecution failed to come forward in constructive manner, more particularly relating to reliability of oral dying declaration, hence the judgment impugned is fit to be set aside.
9. On the other hand, the learned Additional Public Prosecutor put an objection and submitted that Section 465 Cr.P.C. is applicable only in a case where certain procedure so prescribed under the Code has been overlooked during conduction of trial. While the present controversy as it happens to be a judicial mandate having independent identity, having been passed under the inherent power, which the High Court has either in accordance with Section 482 Cr.P.C. or under Article 226 of the Constitution of India. Once the order has been passed, it has to be obeyed in its true spirit. As the trial concluded in utter violation thereof, hence the whole trial has vitiated including the judgment impugned. That being so, the Patna High Court CR. APP (SJ) No.1827 of 2017(7) dt.11-07-2019 6/10 instant appeal is non-maintainable. Moreover, the matter could be remanded for de novo trial.
10. Before coming to judgment in hand, certain eventualities have to be seen:-
A) There happens to be no barrier/ prohibition prescribed under the Criminal Procedure Code that police report in accordance with Section 173 Cr.P.C. should be submitted only after appearance of the accused.
B) Even at the stage of Section 190 of the Cr.P.C., the Magistrate is quite competent to summon the accused against whom the investigation remains pending, if sufficient material is found in the case diary depicting his involvement.
C) There happens to be no barrier under Cr.P.C. to submit chargesheet in piecemeal manner though could be avoided.
D) Apart from this, the ambit and scope of Section 173(8) Cr.P.C. could not be lost sight of.
E) By Constitution Bench, it has been made clear that even before recording of evidence the Sessions Court is competent enough to summon those accused persons whose presence is not at all in accordance with Section 193 of the Cr.P.C., after having a finding relating to presence of sufficient material.
F) Applicability of Section 319 Cr.P.C. during course of sailing of trial is also an additional recognized Patna High Court CR. APP (SJ) No.1827 of 2017(7) dt.11-07-2019 7/10 recourse.
G) So far Magistrate Court is concerned, it would be only in accordance with Section 319 of the Cr.P.C.,once the stage of Section 190 Cr.P.C. is crossed.
11. Under the Code of Criminal Procedure, there happens to be certain procedure prescribed for securing appearance of an accused irrespective of the stage. The aforesaid event could be seen bifurcated in two parts, the firstly under Chapter-V exclusively within the domain of police begins with Section 41 of the Cr.P.C., secondly under Chapter-VI begins with Section 61 of the Cr.P.C. From plain reading of those Sections, independently falling in both the chapter, it is evident that all the procedures whatever been incorporated thereunder are meant for procurement of accused, witness, having different methodology even allowing coercive mode where the delinquent is found defiant one. Furthermore, from the relevant provisions so falling under both the Chapter, it is apparent that there happens to be no provision for separate/ split up the trial relating to absentee accused. Virtually, Cr.P.C. is complete silent. But, could it be accepted, more particularly, when non-adoption of such procedure will halt the proceeding for unlimited period, causing prejudice to the interest of accused, who is present.
Patna High Court CR. APP (SJ) No.1827 of 2017(7) dt.11-07-2019 8/10
12. However, certain provisions have been found under the Cr.P.C. whereunder trial has been allowed to proceed even in physical absence of the accused, allowing his appearance through his pleader as enumerated under Section 205 of the Cr.P.C. as well as under Section 317 Cr.P.C. One other eventuality has also been prescribed, when the status of the accused has properly been acknowledged as an absconder. Even during course thereof, the record has not been allowed to split up rather the evidence has to be recorded in absence thereof, as prescribed under Section 299 of the Cr.P.C.
13. So, it is evident that there happens to be no provision apparently visible under the Cr.P.C. for splitting up of the record irrespective of absence of accused. That being so, one could say that in absence of specific provision, there should not be split up of record. However, another circumstance is to be seen:-
1) Even after completion of investigation as well as submission of report under Section 173 Cr.P.C., police is not at all handicapped to continue with investigation against others and that is bound to follow with supplementary chargesheet, which has got legal recognition in the eye of law.
Patna High Court CR. APP (SJ) No.1827 of 2017(7) dt.11-07-2019 9/10 Then in that circumstance, whether it could be said that irrespective of nature of an offence. More particularly Section-304B I.P.C., there should be prohibited from continuing investigation.
2) There happens to be no restriction under Code that police will submit only one chargesheet in a case after completing investigation and could not keep investigation pending against other co-accused followed with supplementary chargesheet, which may be a case falling under Section 304-B of the I.P.C. It is also to be seen, once chargesheet has been submitted against particular accused, then in that circumstance, the Magistrate will sit idle awaiting supplementary charge sheet and by such activity, the Magistrate would not violate the mandate of Article 20(1), 22 of the Constitution of India and then in that circumstance, splitting of record will not be permitted.
3) Whether the order dated 23.07.2015 passed in Cr. Misc. No.39878 of 2014 could be considered in accordance with law,more Patna High Court CR. APP (SJ) No.1827 of 2017(7) dt.11-07-2019 10/10 particularly in the background of having presence of Section 173(8) of the Cr.P.C., which is bound to follow with supplementary chargesheet.
14. In the aforesaid background, with due respect, the finding so recorded by the Co-ordinate Bench in Cr. Misc. No.39878 of 2014 is not at all found favour and needs reconsideration. As such, the matter is referred before the Division Bench for proper consideration and for that, office is directed to place after taking permission from Hon'ble the Chief Justice.
(Aditya Kumar Trivedi, J) vikash/-
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