High Court
Case Details
Court No. - 89 Case :- CRIMINAL REVISION No. - 3392 of 2018 Revisionist :- Ramakant And 3 Others Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Satya Man Singh,Chandra Bhan Singh Counsel for Opposite Party :- G.A.,Deepak Dubey,Gyanendra Singh,Hari Om Sharan Tiwari Hon'ble Syed Aftab Husain Rizvi,J. Heard learned counsel for the revisionists, learned AGA for the State and learned counsel appearing for opposite party no.2. This criminal revision is directed against the order dated 04.09.2018 passed by III Additional Sessions Judge/ Special Judge DAA Act, Banda. By the impugned order, the court below has framed the additional charge U/s 394 read with section 34 IPC in S.T. No.215 of 2013 (State vs. Ramakant and ors) U/s 308, 394, 323, 506, 324 & 452 IPC, P.S. Trindwari District Banda.
Legal Reasoning
An FIR was lodged on 19.06.2012 by opposite party no.2 registered U/s 308, 394, 323, 506, 324, 452 IPC with regard to the incident dated 19.06.2012 at about 7 to 8 pm with other allegations it was also alleged that during the course of incident, the accused persons snatched the golden mangalsutra and golden chain of the wife and daughter of the complainant. After investigation, charge-sheet was submitted only for offence under sections 308, 323, 324, 325, 504 IPC before the concerned Magistrate. The case was committed to the court of sessions. The court of sessions framed charges U/s 308/34, 323/34, 324/34 325/34, 452 & 506 IPC. After examination of two witnesses P.W.-1 Kripamantri & P.W.-2 Archana the trial court vide order dated 26.07.2016 held that from the evidence on record, it also appears that a case of loot is made out punishable U/s 392 IPC which is a scheduled offence under the U.P. DAA Act 1983 and a special court is constituted for this purpose. The trial court directed that a letter be written to the sessions judge for transfer the case to the court of competent jurisdiction. In pursuance of it, under the orders of sessions judge, the case was transferred to the court of special judge, DAA Act. The special judge, by the impugned order has framed additional charge U/s 394/34 IPC.
Legal Reasoning
Learned counsel for the revisionists contended that there are cross-version of the incident. After recording the statement of independent witnesses Ram Dutt, Jagdish and Braj Behari the Investigating Officer submitted a closure report on 21.06.2022 for offence U/s 394 IPC since the independent witnesses did not support the allegation of robbery, charge-sheet was submitted on 20.07.2012 under section 308, 323, 324, 325, 452, 506 IPC and charges were also framed in the aforesaid section. It is next contended that an objection was raised before the trial court against the framing of additional charge without taking the cognizance U/s 7 of Special Act but it was overruled and the additional charge U/s 394/34 IPC has been framed. The court below has not considered the objections about taking cognizance before framing of additional charges U/s 394/34 IPC properly. It is further contended that the dispute between the parties is of civil nature. Regarding cancellation of sale deed, a civil suit was also pending. Due to civil dispute, the rival groups clashed and both the parties are claiming their rights. Hence no criminal offence is made out. It is also contended that the special court is essentially the court of sessions. After the case is committed for trial under the special Act, the sessions court having case in hand act upon as one of the original jurisdiction for taking cognizance under the provisions of section 193 of Cr.P.C. which has not been complied with and the impugned order has been passed in cursory manner without application of judicial mind. The court of special judge should have passed fresh order of cognizance and only thereafter the trial may proceed as a fresh matter. It is also contended that purely civil matter has been given colour of criminal dispute. Nevertheless the court below has exercised colourable power, framing the charges. The court below framed the additional charge believing upon the fabricated story which has never taken place. The prosecution has developed a new story to sent the revisionists behind-the-bar to win over the civil case. The revisionists are wholly innocent and has been falsely implicated due to malafide intention and ulterior motive of the informant who is a hear-say witness. Hence the impugned order suffers material illegality. The learned counsel placed reliance on the following case laws: 1. Dori vs. State of U.P. 1990 Law Suit (All) 190, 2. Ashok & ors vs. State of U.P. 2012 Law Suit (ALL) 1969, 3. Pradeep S Wodeyar vs. State of Karnataka 2021 Law Suit (SC) 780. Learned AGA and learned counsel for opposite party no.2 opposed the prayer. It is undisputed that FIR was lodged with the allegation that the accused persons during the course of incident have snatched the golden chain and mangal sutra of the wife and daughter of the complainant. Initially the FIR was registered U/s 394 IPC also but charge-sheet was not submitted under that section. As the charge-sheet was not submitted under the scheduled offence, it was submitted before concerned Magistrate in accordance with the procedure prescribed under the Criminal Procedure Code and the learned Magistrate in a lawful manner took cognizance and committed the case to the court of sessions. The court of sessions took the cognizance of the matter and framed charged U/s 308/34, 323/34, 324/34, 325/34, 452 & 506 IPC. The trial commenced. The complainant P.W.-1 Kripamantri & P.W.-2 Archana were examined. Both have corroborated the allegations of the FIR in its entirety. P.W.-2 Archana is also the victim, she has specifically stated that the accused-persons snatched her golden chain. The trial court i.e. the court of additional sessions judge (EC) Act vide order dated 26.07.2016 has held that from the evidence on record, it appears that the case of loot is also made out which is a scheduled offence and has passed the order dated 26.07.2016. This order has not been challenged by the revisionist accused. The case was transferred to the court of special judge DAA Act. The special court, by the impugned order, has held that from the evidence on record, additional charge U/s 394/34 IPC is also made out. This finding is based on the testimony of complainant P.W.-1 as well as Archana (P.W.-2) the victim. The cognizance of the matter was taken by the sessions court, after it was committed to the court of sessions by the learned magistrate, as charge-sheet was not submitted for any scheduled offence as prescribed under the DAA Act. During the course of trial, the court of sessions observed that offence of loot is also made out and hence vide order dated 26.04.2016 directed for transfer of the case to the court of competent jurisdiction i.e. the court of special judge, DAA Act. The proper procedure has been followed in the matter. There is no violation of any procedure. Further there was an opportunity for the revisionists accused to challenge the order dated 26.07.2016 but they have not availed it. The additional charge which has been framed vide order dated 04.09.2018 is based on the evidence and other material on record. The case laws of Dori vs. State of U.P. (Supra) and Ashok & ors vs. State of U.P. (Supra) are not applicable because in those cases it was held that no scheduled offence is made out. In the case in hand from the evidence and material available on record, a scheduled offence of loot is made out. Further the case in Pradeep S Woodeyar vs. State of Karnataka (Supra), it has been held that special court in absence of specific provisions to that effect does not have the power to take cognizance of an offence under MMDR Act. This citation also not applicable because a scheduled offence under the provisions of DAA Act is made out against the revisionists. The procedure adopted in this case is not illegal or against the provisions of any law. The additional charge has been framed on the basis of material and evidence available on record and it is sufficient for that purpose.So there is no illegality in the impugned order. Accordingly, the revision is devoid of merits and is hereby dismissed. Order Date :- 30.1.2023 C. MANI Digitally signed by :- CHANDRAMANI VERMA High Court of Judicature at Allahabad