High Court
Case Details
Neutral Citation No. - 2024:AHC:192424 Court No. - 86 Case :- CRIMINAL REVISION No. - 158 of 2024 Revisionist :- Vinay Pandey Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Prince Kumar Srivastava Counsel for Opposite Party :- G.A. Hon'ble Ram Manohar Narayan Mishra,J. 1. 2. Supplementary affidavit filed by the revisionist is taken on record. Instant Criminal Revision has been preferred against dismissal of discharge application under Section 227 of IPC in G.T. No.106 of 2007, arising out of Case Crime No.40 of 2007, under Sections 302, 307, 504 IPC and Section 7 of Criminal Law Amendment Act and Section 3/25 of Arms Act and Section 3(1) of Gangster Act, Police Station Bansgaon, District Gorakhpur. 3.
Legal Reasoning
11.2. In the recent decision of this Court in State of Karnataka v. M.R. Hiremath, (2019) 7 SCC 515, one of us (D.Y. Chandrachud, J.) speaking for the Bench has observed and held in para 25 as under: “25. The High Court [M.R. Hiremath v. State, 2017 SCC OnLine Kar 4970] ought to have been cognizant of the fact that the trial court was dealing with an application for discharge under the provisions of Section 239 CrPC. The parameters which govern the exercise of this jurisdiction have found expression in several decisions of this Court. It is a settled principle of law that at the stage of considering an application for discharge the court must proceed on the assumption that the material which has been brought on the record by the prosecution is true and evaluate the material in order to determine whether the facts emerging from the material, taken on its face value, disclose the existence of the ingredients necessary to constitute the offence. In State of T.N. v. N. Suresh Rajan, (2014) 11 SCC 709, Criminal Appeal No. 1399 of 2023 adverting to the earlier decisions on the subject, this Court held: ‘29. … At this stage, probative value of the materials has to be gone into and the court is not expected to go deep into the matter and hold that the materials would not warrant a conviction. In our opinion, what needs to be considered is whether there is a ground for presuming that the offence has been committed and not whether a ground for convicting the accused has been made out. To put it differently, if the court thinks that the accused might have committed the offence on the basis of the materials on record on its probative value, it can frame the charge; though for conviction, the court has to come to the conclusion that the accused has committed the offence. The law does not permit a mini trial at this stage.” 17. In the impugned order, learned trial court has given cogent reasons of dismissing the application for discharge moved by the revisionist and same is in consonance with the law propounded by Hon’ble Supreme Court on the question of discharge as given under Section 227 Cr.P.C. I find no illegality, irregularity or perversity in the impugned order passed by learned trial court. The revision is devoid of merit and deserves to be dismissed. 18. The revision is hereby dismissed. Order Date :- 9.12.2024 Ashish/- 6
Arguments
Heard learned counsel for the revisionist and learned A.G.A. for the State-respondent and perused the material available on record. 4. As per office report notice issued to respondent No.2 has been returned unserved due to his death. 5. The informant/opposite party No.2 lodged an FIR on the basis of written report, wherein she has stated that on 13.01.2007 at around 09:00 hours Kerosene oil was being distributed to the villagers and his co-villager Shravan Kahar was also standing in the que to obtain kerosene oil. Accused Vinay @ Panne Pandey forcefully entered in to the que and stood after Shravan, to which Shravan Kahar objected, a verbal altercation took place between Vinay @ Panne Pandey and Shravan Kahar the matter was any how reconcile by making them understood. However, Vinay @ Panne Pandey felt offended to this and when the informant was moving towards his agricultural field situated at Tal Badaila alongwith his son Vinay @ Panne Pandey, Dharmendra and one Nanhey son of Bal Chand. The accused persons met him near Kalyanpur at Kharanja road at around 12:00 hours in the day. The informant and his dependents reached near the boring of Rajaram Yadav on that time. Vivek Singh son of Surya Narayan Singh was armed with SBBL gun. Vinay @ Panne Pandey, Shailesh Yadav and Manish Singh were armed with counter made pistol. They were standing on the way of the informant in pre-planned manner, as soon as they saw the informant and his companions, they started abusing him and exhorted to kill them. Whereupon Vivek Singh fired a shot by SBBL gun with intention to kill his son Vinay Yadav, who fell down on receiving the gun shot. They also opened fire at the informant and others who any how rescued themselves by hiding near by houses. The persons who were working in the neighbouring fields reached on the spot on hearing the commotion, the accused persons fled away from the place of occurrence. The FIR was lodged under Sections under Sections 302A, 307, 504A IPC and Section 7 of Criminal Law Amendment Act Police Station Bansgaon, District Gorakhpur. 6. The police investigated the case, statement of informant Budhiram Yadav was recorded. The Investigating Officer conducted local inspection of the place of occurrence and prepared a site plan. On 20.01.2007 statement of witness Dharmendra Yadav was recorded, investigating officer also recorded statement of Nanhey as an independent witness, and witnesses of recovery memo of blood stained and plain earth taken from the place of incident. The Investigating Officer submitted chargesheet in aforesaid sections against all the four named accused persons after completing the investigation. The learned Special Judge, Gangsters Act took cognizance of the case on chargesheet on 05.02.2007. The accused Vinay @ Panne Pandey filed an application 19 Kha under Section 27 Cr.P.C. with prayer to discharge him from said offences, which was dismissed vide judgment and order dated 03.07.2023. At the stage of charge revisionist Vinay @ Panne Pandey filed an application for discharge which has been dismissed by the impugned order passed by leaned Special Judge. 2 7. Feeling aggrieved by the impugned order, the applicant Vinay @ Panne Pandey has filed Criminal Revision under Section 302, 307, 504 IPC and Section 7 of Criminal Law Amendment Act and Section 3/25 of Arms Act and Section 3(1) of Gangster Act, Police Station Bansgaon, District Gorakhpur. Learned counsel for the revisionist submitted that revisionist was released on bail vide order dated 30.04.2011 passed by this Hon’ble Court in said offence. He was not having any motive to commit offence, inasmuch as no motive has been attributed to him by the informant and witnesses. The role of firing shot has been specifically attributed to co-accused Vivek Singh. A general role has been assigned to all the named accused persons who have opened fired on informant and witnesses, however none has received any injury. 8. Learned trial court has dismissed the discharge application filed by the revisionist without considering the totality of the facts and circumstances of the case and the evidence collected during investigation. 9. He next submitted that the learned trial court has dismissed, the application for discharge in mechanical manner and same is vitiated by illegality. The revisionist has been implicated in the case due the enmity in Gram Pradhan Election. 10. Per contra learned A.G.A. supported the impugned order in strong words and submitted that impugned order is a speaking order, in which the grounds taken in discharge application has been duly addressed and learned trial court has discussed the binding judicial precedents in impugned order, on question discharge as envisaged 227 Cr.P.C. The revisionist is named in FIR which has been promptly lodged on the date of incident itself within one hand half hours of the incident and all the witnesses have stated active participation of the revisionist in the offence. 11. On a perusal of impugned order and material on record it is obvious that the revisionist is named in FIR, he is stated to have been armed with country made pistol in statement of informant and witnesses, the son of the 3 informant namely Vinay Yadav died in the incident on the place of occurrence itself. During investigation provisions of penal sections of U.P. Prevention of Gangsters and Anti Social Activities Act has also been invoked. Keeping in view the nature of offence which allegedly created panic and commotion in the locality. It is stated in FIR itself that all the accused persons waylaid the informant, deceased and witnesses in pre- planned manner when they were moving towards their agricultural field to evade the same. They exhorted each other to kill the informant party and without any provocation from the side of informant side, main accused Vivek Singh opened fired on son of Vinay Yadav by his SBBL gun who died on the spot due to fatal injuries suffered in the incident. 12. It is also alleged in FIR as well as in statement of the witnesses that after injured Vinay Yadav fell down, the accused persons opened fire at the informant and the witness, by their respective fire arms. However, they saved themselves any how and did not receive fire arm injuries. Section 34 of IPC provides for principle of liability of common intention. Accordingly when a criminal act is done by several persons, in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone. 13. This case is based on direct evidence and revisionist has also been attributed role of active participation in the offence, which resulted in death of the deceased. 14. The Hon’ble Supreme Court in Suresh Sakharam Nangre vs State Of Maharashtra 2012 (9) JT 116 held that if common intention is proved but no overt act is attributed to the individual accused, Section 34 will be attracted as essentially it involves vicarious liability but if participation of the accused in the crime is proved and common intention is absent, Section 34 cannot be invoked. In other words, it requires a pre-arranged plan and pre-supposes prior concert, therefore, there must be prior meeting of minds. 4 15. Section 227 Cr.P.C. provides for discharge in session triable case, which reads as under:- “If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing.” 16. Hon’ble Supreme Court in Captain Manjit Singh Virdi (Retd.) vs Hussain Mohammed Shattaf in Criminal Appeal No.1399 of 2023 observed as under:- “11. The law on issue as to what is to be considered at the time of discharge of an accused is well settled. It is a case in which the Trial Court had not yet framed the charges. Immediately after filing of chargesheet, application for discharge was filed. The settled proposition of law is that at the stage of hearing on the charges entire evidence produced by the prosecution is to be believed. In case no offence is made out then only an accused can be discharged. Truthfulness, sufficiency and acceptability of the material produced can be done only at the stage of trial. At the stage of charge, the Court has to satisfy that a prima facie case is made out against the accused persons. Interference of the Court at that stage is required only if there is strong reasons to hold that in case the Criminal Appeal No. 1399 of 2023 trial is allowed to proceed, the same would amount to abuse of process of the Court. 12. The law on the point has been summarised in a recent judgment of this Court in State of Rajasthan v. Ashok Kumar Kashyap2. Relevant paras are extracted below: - “11.1. In P. Vijayan v. State of Kerala, (2010) 2 SCC 398, this Court had an occasion to consider Section 227 CrPC What is required to be considered at the time of framing of the charge and/or considering the discharge application has been considered elaborately in the said decision. It is observed and held that at the stage of Section 227, the Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused. It is observed that in other words, the sufficiency of grounds would take within its fold the nature of the evidence recorded by the police or the documents produced before the court which ex facie disclose that there are suspicious circumstances against the accused so as to frame a charge against him. It is further observed that if the Judge comes to a conclusion that there is sufficient ground to proceed, he will frame a charge under Section 228 CrPC, if not, he will discharge the accused. It is further observed that while exercising its judicial mind to the facts of the case in order to 2 (2021) 11 SCC 191 Criminal Appeal No. 1399 of 2023 determine whether a case for trial has been made out by the prosecution, it is not necessary for the court to enter into the pros and cons of the matter or into a weighing and 5 balancing of evidence and probabilities which is really the function of the court, after the trial starts.