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Whether Session judge can Direct Acquittal of Accused even though Accused has not Adduced his Evidence?

IN THE HIGH COURT OF JUDICATURE AT PATNA

Cr.Misc. No.25622 of 2007

Sanjay Kumar @ Sanjay Kumar Singh @ Bhuwar son of Dharmvir Singh @
Barak Singh, resident of village Anaith, Police Station Ara Nawada, District Bhojpur, Ara … Petitioner.

Versus

1. State Of Bihar
2(a). Prema Devi w/o Mathwa Prasad Pandey d/o late Gopal Muni Tiwary
2(b). Smt. Rajeshwari Devi w/o Dr. Rakesh Kumar Mishra d/o Gopal Muni Tiwary
Both resident of village- Pali, P. S. Goura, District Pratapgarh, U. P. … Opposite party.

For the Petitioner : Mr. Rajiv Ranjan, Advocate
For the Opposite Parties : Mr. S.S. Sabbar Hussain (A.P.P.)

PRESENT: THE HON’BLE MR. JUSTICE MIHIR KUMAR JHA

ORDER
(16.02.2010)

Heard learned counsel for the petitioner, learned counsel for the State as also learned counsel appearing on behalf of father of the deceased.

2. Learned counsel for the petitioner while assailing the order dated 24.4.2007 rejecting the prayer of the petitioner for his acquittal in terms of Section 232 of the Code of Criminal Procedure (Cr.P.C.) is of the firm view that the same cannot be sustained in the eyes of law inasmuch as the court below while rejecting such prayer has acted with material irregularity by overlooking the mandatory provisions. He has also submitted that as a result of such illegal order the entire trial has been vitiated from the stage on which the said impugned order dated 24.4.2007 had been passed. Learned counsel explains that the petitioner was not named in the first information report and though the police had submitted a charge-sheet against him and other accused persons, the prosecution in course of sessions trial, having examined 7 witnesses could not bring any material as against the petitioner and as such the application filed by the petitioner on 7.3.2007 for hearing argument under Section 232 ought not to have been mechanically rejected.

3. Counsel for the State as also the father of the deceased in their separate submissions have pointed out that not only the application filed by the petitioner on 7.3.2007 was misconceived in law but even the present application has been filed only with a view to delay the trial of the sessions case of the year 1997 ( Sessions Trial No. 113 of 1997) in which arguments had already been almost completed on 31.5.2007 when this case was filed. They have also explained that only because of an interim order passed on 13.9.2007 remaining part of the proceeding of the pending sessions trial against the petitioner and others has not been completed inasmuch as this Court had stayed the further proceeding of the Sessions case in question.

4. In the opinion of this Court, the trial court did not commit any irregularity much less a material irregularity in passing the impugned order. It has to be noted that the offence is of the year 1994 for which a first information report was lodged on 1.11.1994 for offence under Section 302 and other allied offences. In this case police had submitted its charge-sheet against the petitioner and others whereafter the case was committed to the court of sessions being Sessions Trial No. 113 of 1997. The Sessions Court had framed charge against the petitioner, Bablu Singh, Akhilesh Singh, Umesh Singh, Mahesh Singh, Ashok Singh and Gaya Prasad by a common order dated 27.7.2001 whereafter the prosecution had also adduced its oral evidence by producing seven witnesses namely, Manoj Kumar Singh, Brij Bihari Singh, Vishwamitra Singh, Sumitra Devi, Kashmiri Singh, Raj Kumar Chaudhary and Murat Ram. After adducing of the oral and documentary evidence by the prosecution, the Sessions Court had also recorded the statement of accused persons under Section 313 and had proceeded for recording of the evidence in defence as is clear from the order dated 1.2.2007 wherein the case was fixed for arguments by the defence. It was at this stage that an application was filed by the petitioner only for hearing argument under Section 232 of the Code of Criminal Procedure. The trial court having found that the same was filed by one of the seven accused not only at belated stage but also in course of arguments of the defence, had rejected such prayer on the ground that it was a joint trial of seven accused persons and no individual consideration could be made only against one of the accused namely, the petitioner.

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5. In the aforementioned background, it would thus be clear that the petitioner being one of the seven accused persons had only made a deliberate attempt to forestall the trial. The scope of Section 232 in contradiction with section 235 of the Code of Criminal Procedure is very limited. Section 232 Cr.P.C. reads as follows:-

“232. Acquittal.- If after taking the evidence for the prosecution, examining the accused and hearing the prosecution and the defence on the point, the Judge considers that there is no evidence that the accused committed the offence, the judge shall record an order of acquittal.”
6. From the wording of the aforementioned provision under Section 232 Cr.P.C. it would be clear that a clear satisfaction has to be recorded by the trial court immediately on completion of the evidence of the prosecution and examining the accused as also hearing the prosecution and the defence for recording acquittal on the ground that there is no evidence that the accused had committed offence.

7. Here in this case, there are 7 accused persons and the Court had to satisfy that it was a case of no evidence against all the accused persons. The word „ no evidence? in Section 232 Cr.P.C. cannot be construed or interpreted to mean absence of sufficient evidence for conviction or absence of trustworthy or conclusive evidence in support of the charge. At this stage for deciding as to whether there is evidence to indicate a commission of offence, the Sessions Judge is not required to consider as to what value should be attached to such evidence. The object of Section 232 is to expedite the conclusion of trial and at the same time avoid unnecessary harassment to the accused by calling upon him to produce evidence and avoid waste of public time. Nonetheless if there is evidence, the trial court must go on to its course as envisaged in Section 233 and 234 Cr.P.C. before delivering its judgment under Section 235 Cr.P.C.

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8. In the present case, the accused persons including the petitioner had readily entered into the defence at the time of their examination under Section 313 Cr.P.C.. The petitioner also did not file such application immediately on completion of evidence by prosecution rather when the court had found there to be sufficient evidence for directing the accused to enter into their defence in terms of Section 232 of the Code of Criminal Procedure, a belated application came to be filed only by the petitioner and that too as noted above by only one of the seven accused persons i.e. the petitioner.

9. Admittedly, it is a case of joint trial and all the accused persons including the petitioner are facing prosecution for offence under Section 302. In the application also filed by the petitioner, not a word was said that it was a case of no evidence as against him. In that view of the matter, once the Sessions Court had already in course of joint trial proceeded to exercise its power under Section 233 and the accused persons had also entered into the evidence in defence, it could not have separated the trial of the petitioner for the purpose of considering the acquittal of the petitioner alone in terms of Section 232 Cr.P.C. As a matter fact from the order dated 3.5.2007 it would appear that defence had already proceeded to adduced evidence and had exhibited its defence documents. Thus, when the Court had already crossed the stage of Section 232 and did not find the material for acquittal of all the accused persons in the joint trial and had proceeded under Sections 233 and 234 as would be evident from the order dated 1.2.2007 it has to be held that the application filed by the petitioner alone for hearing argument under Section 232 of the Code of Criminal Procedure was wholly misconceived.

10. Reference in this connection may be made to a judgment of Bombay High Court in the case of Arun and Ors. vs. State of Maharashtra, reported in 1978 Cr. L. J. 1168 wherein it was held that even a small order on the ordersheet or an order merely indicating that the trial has to proceed even inclusive of an order in every clear case would be sufficient compliance of the provision of Section 232 of the Code of Criminal Procedure. In other words, if the Court upon completion of the evidence of prosecution is satisfied that there are sufficient evidence against the accused persons, it is not required to offer the defence an opportunity to avail the opportunity of Section 232 of the Code of Criminal Procedure. True it is that immediately on completion of the evidence of prosecution the accused can demand an opportunity of being heard in terms of Section 232 of the Code of Criminal Procedure but if that is not done at the appropriate stage and the accused themselves enter into their defence, proceed to lead evidence in their defence, they cannot be subsequently allowed to avail the opportunity of hearing in terms of Section 232 of the Code of Criminal Procedure.

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11. As noted above, in the present case, such stage of Section 232 had already been crossed earlier and the petitioner even individually at that point of time did not claim that there was no evidence against him. In fact, even in belated application filed by the petitioner on 7.3.2007 there is not a word that it was a case of no evidence as against him. The petitioner also has not even enclosed the copy of the deposition of all the seven prosecution witnesses which could have even otherwise satisfied this Court that it was a case of no evidence as against him.

12. That apart when it is a case of joint trial of seven accused persons facing prosecution under Section 302 I.P.C. it was impermissible to segregate the case of one of the accused persons for the purpose of acquittal in terms of Section 232 Cr.P.C. In fact, if the petitioner was so sanguine that there was nothing against him save and except confessional statement of co-accused as asserted by him in this application, the proper remedy and the stage was to seek discharge in terms of Section 227 of the Code of Criminal Procedure. The petitioner having allowed the prosecution to continue against him and prosecution having led oral and documentary evidence to also show his implication he could not have been given yet another opportunity when all the accused persons including the petitioner in course of recording of their statement under Section 313 Cr.P.C. had themselves voluntarily proceeded to adduce evidence in defence.

13. If the submission of learned counsel for the petitioner has to be accepted that would lead an anomalous situation inasmuch as after the stage of Section 233 and 234 Cr.P.C. is reached, the only recourse of the trial court, Sessions Court in this case is to record the judgment of acquittal or conviction in terms of Section 235 Cr.P.C. which is absolutely different in scope to the provision contained in Section 232 of the Code of Criminal Procedure.

14. That being so, this Court does not find any merit in this application and the same is accordingly dismissed.

15. Interim order dated 13.9.2007 is hereby vacated and the trial court is directed to ensure that the remaining part of the trial against the petitioner and other co-accused persons is completed expeditiously.

(Mihir Kumar Jha, J.) Patna High Court, Patna Dated, 16th of February, 2010

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