//
you're reading...
legal issues

Wrong procedure adopted by Magistrate = In a Kidnap case on a private complaint, when the police filed charge sheet excluding kidnap and filed only under sec. 323 and 343 of I.P.C. – with out conducting trial no court should pass orders on plea of guilty and releasing the accused on probation with a direction – not to affect his service = conviction of an employee in an offence permits the disciplinary authority to initiate disciplinary proceedings against the employee or to take appropriate steps for his dismissal/removal only on the basis of his conviction. The word “disqualification” contained in Section 12 of the 1958 Act refers to a disqualification provided in other statutes, as explained by this Court in the above referred cases, and the employee cannot claim a right to continue in service merely on the ground that he had been given the benefit of probation under the 1958 Act.”= the trial court had no competence to make any observation having civil consequences so far as the private respondents are concerned. The High Court rejected the application under Section 482 Cr.P.C. filed by the appellant only on the ground that the appellant neither challenged the order of taking cognizance nor raised any objection at the time of reading over of the charges to the accused. The High Court failed to appreciate that before the statement of the appellant or any other witness could be recorded, the trial court disposed off the matter on the date when the application itself had been submitted admitting the guilt. Even otherwise if the trial court wanted to entertain any issue of plea bargaining under Chapter XXI-A, inserted w.e.f. 5.7.2006, then too the court was obliged there under to put the victim to notice before extending any such benefits that have been given in the present case. The procedure therefore appears to have been clearly violated. Therefore, in the facts and circumstances of the case, the appellant had no opportunity to raise any grievance before the appropriate forum.= In view of the above, the appeal succeeds and is allowed. The judgment and order of the trial court dated 15.7.2011 as well as of the High Court dated 23.4.2012 are set aside. The matter is remitted

published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40841

 

English: The supreme court of india. Taken abo...

English: The supreme court of india. Taken about 170 m from the main building outside the perimeter wall (Photo credit: Wikipedia)

 


REPORTABLE

 
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION

 
CRIMINAL APPEAL NO. 1547 of 2013

 

 

 
Girraj Prasad Meena
…Appellant

 
Versus

 
State of Rajasthan & Ors.
…Respondents

 

 

 

 

 

 

 
J U D G M E N T

 

 

 
Dr. B.S. CHAUHAN, J.

 
1. This appeal has been preferred against the impugned judgment and
order dated 23.4.2012 passed by the High Court of Judicature of
Rajasthan (Jaipur Bench) in S.B. Criminal Misc. Petition No. 1260 of
2012, by which the High Court rejected the application filed by the
appellant under Section 482 of Code of Criminal Procedure, 1973
(hereinafter referred to as `Cr.P.C.’) for setting aside the judgment
and order dated 15.7.2011 passed by the Judge, Gram Nyayalaya,
Gangapur City, District Sawai Madhopur, Rajasthan, in Case No. 269 of
2011, whereby the trial court has allowed the application of the
respondents-accused for pleading guilty for the offences
punishable under Sections 323 and 343 of the Indian Penal Code, 1860
(hereinafter referred to as the `IPC’) and has further given them the
benefit of Section 12 of the Probation of the Offenders Act, 1958,
(hereinafter referred to as the `Act 1958’), in the case arising out
of FIR No. 115 of 2009 lodged at Police Station Wazirpur under Section
365 IPC.

 
2. Facts and circumstances giving rise to this appeal are that:
A. The learned Magistrate passed an order under Section 156 (3)
Cr.P.C. for the investigation whereunder FIR No. 115 of 2009 under
Section 365 IPC was lodged on the complaint filed by one Kamlesh
Meena, who is brother-in-law of the appellant, alleging that the
appellant had been kidnapped by the private respondents alongwith
other accused when he was returning from the school duty as a teacher.
B. Police investigated the matter, located the appellant from
village Jeevli on 4.7.2009 and recorded the statements of various
persons under Section 161 Cr.P.C, and the statement of the appellant
was recorded under Section 164 Cr.P.C. After completing the
investigation, the police filed a charge sheet dated 4.8.2010 against
the accused – namely private respondents only for offences punishable
under Sections 323, 343 read with Section 34 IPC.
C. After filing of the charge sheet, the trial commenced. On
3.1.2011, the court ordered the presence of the witnesses for
recording their statements on 9.6.2011. However on the said date, the
summons were issued to three witnesses, including the appellant for
recording their evidence on 7.7.2011. But on the date so fixed, the
trial could not proceed.
D. On 15.7.2011, both the accused-respondents appeared before the
learned trial court and filed an application pleading guilty for the
offences under Sections 323 and 343 IPC. The said application was
entertained forthwith and the learned trial court concluded the trial
on that day itself, without issuing notice to the appellant,
convicting the respondents under Sections 323 and 343 IPC and imposing
a fine of Rs.500/-, and further granting them the benefit of
provisions of Sections 3 & 12 of the Act 1958. The learned Magistrate
further held that the order passed in criminal case herein shall not
have any adverse affect on the government service of the accused
persons.
E. Aggrieved, the appellant challenged the said judgment and order
dated 15.7.2011 before the High Court on various grounds including
that the court below had committed an error in not taking into
consideration the statement of the appellant under Section 164
Cr.P.C., wherein serious allegations had been made against the accused
persons and others particularly that the appellant was kidnapped and
illegally detained from 29.6.2009 to 4.7.2009; terrorising and
threatening him that his hand and legs would be chopped of; abusing
the complainant persistently. The case was disposed off hastily in
one day without notice to the appellant. More so, the court below had
no right to make the observation that the order of conviction would
not adversely affect the services of the respondents-accused.
F. The High Court dismissed the said application vide order dated
23.4.2012 on the ground that the appellant has not challenged the
order taking cognizance nor any objection was raised when charges were
read over to the accused and the respondents-accused had been
convicted on their pleading guilty regarding the aforesaid offences.
The High Court held that there was no obligation in law to hear the
appellant or any other witness at this stage and the trial court was
right in passing the impugned order.
Hence, this appeal.

 
3. Shri H.D. Thanvi, learned counsel appearing on behalf of the
appellant, has raised a large number of issues and insisted that the
trial court had no right to make any observation that the conviction
could not have adverse affect on the service of the respondents. More
so, the courts below had committed an error in exceeding the scope of
the provisions of Section 12 of the Act 1958. The trial stood
concluded without framing the charges, without issuing notice to the
appellant.

 
4. On the other hand, Ms. Nilofar Qureshi, learned counsel
appearing on behalf of the private respondents, has opposed the appeal
contending that the judgment and order impugned is passed in
consonance with law and does not require any interference. In fact,
appellant is the father of son-in-law of respondent no.2-accused
Kirodi Lal Meena. Respondent’s daughter Hemlata had been ill-treated
by the appellant and his family. There had been various civil and
criminal cases between the parties and the present case is just a
counter blast to such proceedings.
Shri Vivek Singh, learned Standing counsel appearing on behalf
of the State of Rajasthan, has supported the case of the respondents-
accused contending that the orders of the courts below are in
consonance with the statutory provisions and once a charge sheet is
filed, the charges become final, and as the charges so framed were not
so serious, the benefit of Act 1958 has rightly been granted to the
private respondents. Thus, the appeal is liable to be rejected.

 
5. We have considered the rival submissions made by the learned
counsel for the parties and perused the record.

 
6. Filing of charge sheet and taking cognizance has nothing to do
with the finality of charges, as charges framed after the cognizance
is taken by the court, can be altered/amended/changed and any charge
can be added at any stage upto the stage of conviction in view of the
provisions of Section 216 Cr.P.C. The only legal requirement is that,
in case the trial court exercises its power under Sections 228/251
Cr.P.C., the accused is entitled to an opportunity of show-
cause/hearing as required under the provisions of Section 217 Cr. P.C.
(Vide: Umesh Kumar v. State of A.P., JT 2013 (12) SC 213).

 
7. In fact, the appellant has been raising the grievance from the
very beginning that the police has not been investigating the case
properly and for that purpose, he had also approached the High Court
by filing Writ Petition No. 14272 of 2009, wherein several directions
had been issued by the Division Bench of the High Court of Rajasthan
to the Director General of Police for a fair investigation vide orders
dated 10.2.2010 and 11.8.2010. In the statement of the appellant
recorded under Section 164 Cr.P.C. before the learned magistrate,
appellant has given a full version as to how he had been kidnapped
while returning from school duty and forcibly lifted by the private
respondents and five others in a Innova Car and was illegally detained
from 29.6.2009 till 4.7.2009 when he was located by the police.
Appellant named 7 persons and serious allegations of criminal
intimidation, threats, terrorising and causing physical harm had been
levelled. The police after concluding the investigation filed a
charge sheet only against the two accused and, that too, only for the
offences punishable under Sections 323 and 343 IPC.
8. Had the trial court applied its mind to the material collected
during investigation and particularly the statement recorded under
Section 164 Cr.P.C., the charges could have been framed also under
Section 365 IPC. In that case, the Gram Nyayalaya would have no
jurisdiction to deal with the matter as the maximum sentence for that
offence is 7 years imprisonment with fine, and the Magistrate in that
situation, was bound to commit the matter to the Sessions court.
Further, before the statements of the witnesses could be recorded, the
private respondents filed an application admitting their guilt. Had
the statements of the witnesses been recorded, perhaps the court could
have issued summons to other accused under Section 319 Cr.P.C. or
charges could have been amended/altered/modified under Section 216
Cr.P.C. More so, at that stage, the appellant was not heard as no
notice had been issued to him. The trial court proceeded in great
haste and disposed off the matter on 15.7.2011 the same date when the
application was filed by the private respondents.
9. On the said facts, we are of the considered opinion that the
learned trial court proceeded not only in great haste, but adopted a
procedure not known in law, and the judgment and order of the trial
court therefore stands vitiated.
10. In State of U.P. v. Ranjit Singh, AIR 1999 SC 1201, this Court
has held that the High Court, while deciding a criminal case and
giving the benefit of the U.P. First Offenders’ Probation Act, 1938,
or similar enactment, has no competence to issue any direction that
the accused shall not suffer any civil consequences. The Court has
held as under:
“5. We also fail to understand how the High Court while
deciding a criminal case, can direct that the accused must be
deemed to have been in continuous service without break and,
therefore, he should be paid his full pay and [dearness
allowance] during the period of his suspension. This direction
and observation is wholly without jurisdiction….”(Emphasis
added)

 

 

 
11. In Shankar Dass v. Union of India & Anr., AIR 1985 SC 772, this
Court has held that the order of dismissal from service, consequent
upon a conviction, is not a disqualification within the meaning of
Section 12 of the Act 1958 observing as under:
“4. … There are statutes which provide that persons who are
convicted for certain offences shall incur certain
disqualifications. For example, Chapter III of the
Representation of the People Act, 1951, entitled
‘Disqualifications for membership of Parliament and State
Legislatures’ and Chapter IV entitled ‘Disqualifications for
Voting’ contain provisions which disqualify persons convicted of
certain charges from being members of legislatures or from
voting at elections to legislatures. That is the sense in which
the word ‘disqualification’ is used in Section 12 of the
Probation of Offenders Act. [Therefore, it is not possible to
accept the reasoning of the High Court that Section 12 of the
1958 Act takes away the effect of conviction for the purpose of
service also.”

 

 

 
12. The provision of the Act 1958 has been dealt with by this Court
elaborately in Sushil Kumar Singhal v. Regional Manager, Punjab
National Bank, (2010) 8 SCC 573, wherein after considering the
judgments of this court in Aitha Chander Rao v. State of A.P., 1981
Supp SCC 17; Harichand v. Director of School Education, AIR 1998 SC
788; Divisional Personnel Officer, Southern Railway & Anr. v. T.R.
Chellappan, AIR 1975 SC 2216; and Trikha Ram v. V.K. Seth & Anr., AIR
1988 SC 285, the court held as under:
“In view of the above, the law on the issue can be summarised to
the effect that the conviction of an employee in an offence
permits the disciplinary authority to initiate disciplinary
proceedings against the employee or to take appropriate steps
for his dismissal/removal only on the basis of his conviction.
The word “disqualification” contained in Section 12 of the 1958
Act refers to a disqualification provided in other statutes, as
explained by this Court in the abovereferred cases, and the
employee cannot claim a right to continue in service merely on
the ground that he had been given the benefit of probation under
the 1958 Act.”

 
(See also: Karamjit Singh v. State of Punjab, (2009) 7 SCC 178).
13. Thus, we are also of the considered opinion that the trial court
had no competence to make any observation having civil consequences so
far as the private respondents are concerned.
The High Court rejected the application under Section 482
Cr.P.C. filed by the appellant only on the ground that the appellant
neither challenged the order of taking cognizance nor raised any
objection at the time of reading over of the charges to the accused.
The High Court failed to appreciate that before the statement of the
appellant or any other witness could be recorded, the trial court
disposed off the matter on the date when the application itself had
been submitted admitting the guilt. Even otherwise if the trial court
wanted to entertain any issue of plea bargaining under Chapter XXI-A,
inserted w.e.f. 5.7.2006, then too the court was obliged thereunder to
put the victim to notice before extending any such benefits that have
been given in the present case. The procedure therefore appears to
have been clearly violated. Therefore, in the facts and circumstances
of the case, the appellant had no opportunity to raise any grievance
before the appropriate forum.

 
14. In view of the above, the appeal succeeds and is allowed. The
judgment and order of the trial court dated 15.7.2011 as well as of
the High Court dated 23.4.2012 are set aside. The matter is remitted
to the trial court to be decided afresh in accordance with law. As the
matter is very old, we request the trial court to conclude the trial
afresh adopting the procedure as explained hereinabove expeditiously,
preferably within a period of six months from the date of filing
certified copy of the order before it.
Before parting with the case, we would clarify that we have
expressed no opinion on the merits of the ensuing trial.

 
….……………………….J. (DR.
B.S. CHAUHAN)

 

 

 
………………………………..J.
(S.A. BOBDE)
NEW DELHI;
September 30, 2013

 

 

 

Advertisements

About advocatemmmohan

ADVOCATE

Discussion

Comments are closed.

Blog Stats

  • 1,763,154 hits

ADVOCATE MMMOHAN

archieves

Enter your email address to subscribe to this blog and receive notifications of new posts by email.

Join 1,855 other followers

Follow advocatemmmohan on WordPress.com