Janki Devi v. No.14, P.S. Gopalganj Town Thana, Distt-Gopalganj

.... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Rameshwar Pandey, Advocate. For the Respondent/s : Mr. Sanjay Kumar Tiwary, APP. ====================================================== CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI ORAL ORDER 2 18-12-2013 Heard learned counsel for the petitioners as well as learned Additional P.P.

2. Petitioners are aggrieved by an order dated

11.01.2012 passed by Additional Sessions Judge, Fast Track Court-IV, Gopalganj in Sessions Trial No.217 of 2011 by which the prayer for discharge made on behalf of the petitioners has been rejected.

3. It has been contended on behalf of the petitioners that though they were named in the first information report but Patna High Court CR. REV. No.135 of 2012 (2) dt.18-12-2013 2 during course of investigation their complicity was negated and on account thereof, police had submitted final form against them. It has further been submitted that the learned Chief Judicial Magistrate, Gopalganj, the reason based known to him in absence of petitioners as well as his conducting counsel, took cognizance even though at a first part of the order dated 18.01.2011 clearly speaks that the matter was already adjourned to 24.01.2011. It has also been submitted that in the aforesaid background the order of cognizance followed with the order impugned happens to be bad.

4. It has further been submitted that the victim girl happens to be major and on account thereof, her statement so recorded under Section 164 of the Cr.P.C. is to be given to its priority wherefrom, no case against the petitioners is made out. Therefore, complicity of petitioners, as held by the learned Lower Court in terms of statement of witnesses recorded under paras- 6,7,8 and 9 is not going to improve the ultimate fate of the prosecution case. Hence, it has been submitted that petitioners should be discharged.

5. At the other hand, the learned Additional P.P. opposed the prayer and submitted that for the purpose of framing of charge grave suspicion is enough. Further submitted that presence of petitioners apart from written report, is also found Patna High Court CR. REV. No.135 of 2012 (2) dt.18-12-2013 3 corroborated by other witnesses recorded under paras-6,7,8 and 9 of the case diary.

6. Informant Bhim Singh had filed written report disclosing therein that his niece Riya Singh aged about 14 years, a student of Class-X while had gone to coaching, was kidnapped by the accused persons so named therein. From the order impugned, it is also evident that petitioners were not sent up for trial by the police however differing therefrom, the learned Chief Judicial Magistrate, Gopalganj also summoned the petitioners. It is also evident from the order impugned that so many witnesses as recorded under paras-6,7,8 and 9 of the case diary have grind the petitioners with an allegation during commission of occurrence.

7. Petitioners had filed so many annexures, Annexure-2 series happens to be the injury report has been submitted by the medical board showing the age of the petitioner to be in between 17-18 years, statement of Guriya Devi recorded under Section 164 of the Cr.P.C. disclosing therein she happens to be married with Golu Singh as well as ruled out incidence of kidnapping, Annexure-3 happens to be the protest petition, Annexure-4 is the order of the learned Chief Judicial Magistrate, Gopalganj dated

18.01.2011,(taking cognizance) Annexure-5 is the certificate Patna High Court CR. REV. No.135 of 2012 (2) dt.18-12-2013 4 granted by Rameshwar Pandey, Advocate, Patna High Court, Annexure-6 is the petition filed on behalf of the petitioners under Section 227 of the Cr.P.C., Annexure-7 is the rejoinder filed on behalf of State, Annexure-8 is the order dated 12.12.2011 passed by this Court under Cr.Writ No.943 of 2011(Habeas Corpus).

8. The aforesaid Habeas Corpus was filed by Golu Kumar @ Mukesh Kumar, one of the accused for release of Riya Singh from the custody of her parents on the basis of statement of the victim recorded under Section 164 of the Cr.P.C. However, prosecution contested the prayer on the score of minority of victim and to substantiate the same relied upon school leaving certificate and then after interaction with the girl by the court which dismissed the writ observed as:- “Be that as it may, we do not express any opinion on the merits of the matter except that she appears to be a minor.”

9. And at the fag end of order, it further observed:- “This writ petition is dismissed. The girl, respondent no.6 is free to reside where she desires and her parents decides so long as she is a minor.”

10. Apart from this, the power of the revisional court while adjudicating upon the prayer having under Sections 227 and 228 of the Cr.P.C., the Hon’ble Apex Court had minutely Patna High Court CR. REV. No.135 of 2012 (2) dt.18-12-2013 5 considered and analyzed in Ashish Chadha v. Asha Kumari as reported in 2012 Cr.L.J. 773 and observed as follow:-

12. Counsel for respondent no. 1 is right in submitting that though the discretionary power vested in this Court under Article 136 is apparently not subject to any limitations, it has to be used sparingly and in exceptional cases. But we have no manner of doubt that this indeed is an exceptional case where interference under Article 136 is called for. In our opinion, the High Court has completely misdirected itself in reversing the trial court's order framing charge. The High Court's judgment is tainted with legal infirmities and has resulted in miscarriage of justice. Following are the reasons for this conclusion of ours.

13. The High Court has in its revisional jurisdiction appraised the evidence which it could not have done. It is the trial court which has to decide whether evidence on record is sufficient to make out a prima facie case against the accused so as to frame charge against him. Pertinently, even the trial court cannot conduct roving and fishing inquiry into the evidence. It has only to consider whether evidence collected by the prosecution discloses prima facie case against the accused or not. In this connection, we may usefully refer to the observations of this court in Munna Devi vs. State of Rajasthan & Anr. 7 (2001) 9 SCC 631. "We find substance in the submission made on behalf of the appellant. The revision power under the Code of Criminal Procedure cannot be exercised in a routine and casual manner. While exercising such powers the High Court has no authority to appreciate the evidence in the manner as the trial and the appellate courts are required to do. Revisional powers could be exercised only when it is shown that there is a legal bar against the continuance Patna High Court CR. REV. No.135 of 2012 (2) dt.18-12-2013 6 of the criminal proceedings or the framing of charge or the facts as stated in the first information report even if they are taken at the face value and accepted in their entirety do not constitute the offence for which the accused has been charged."

11. In the background of aforesaid settled legal principle enunciated by the Hon’ble Apex Court, this Court while exercising revisional power is forbidden to analyze the evidence. Consequent thereupon, I do not see any merit in the prayer so made on behalf of the petitioners. As such, petition is rejected. (Aditya Kumar Trivedi, J) B.Kr./-