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Harveer Singh vs State Of U.P. & Another on 28 March, 2018

HIGH COURT OF JUDICATURE AT ALLAHABAD

A.F.R.

Judgement reserved on 16.2.2018

Judgement delivered on 28.03.2018

Court No. – 17

Case :- CRIMINAL MISC. WRIT PETITION No. – 9311 of 2009

Petitioner :- Harveer Singh

Respondent :- State Of U.P. Another

Counsel for Petitioner :- Akash Deep Srivastava,Ashok Kumar Jaiswal,Siddarth Jaiswal

Counsel for Respondent :- Govt. Advocate,Saurabh Gaur

Hon’ble Dinesh Kumar Singh-I,J.

1. Heard the learned counsel for the petitioner, Sri Sujan Singh and learned Senior counsel, Sri A.B.L. Gaur assisted by Sri Saurabh Gaur, learned counsel for the O.P. No.2 and learned A.G.A.

2. This criminal writ petition has been filed with the prayer that a writ of certiorari be issued quashing the order dated 02/05/2009 passed by the learned Additional Sessions Judge, Court No. 5, Agra in Criminal Revision No. 316 of 2008 (Netra Pal Singh vs State of U.P. and another), whereby allowing the revision, the order dated 14/10/2008 passed by the trial Court in criminal Case No. 1832 of 2004 (State vs Harvir Singh), under Section 286 IPC was set aside and a direction was given to the lower Court to commit the case to the Court of Sessions according to law.

3. The facts in brief as given in the petition are as follows. The petitioner was married to the daughter of respondent no. 2, Smt. Asha on 01/12/2002. After few days of marriage when she went home, she started making complaint about quality of food and furniture used by the family of petitioner. At the time of marriage, the petitioner was working as an engineer in Indian Air Force and after getting married, he had to join back his service in Jammu, leaving his wife in the house of respondent no. 2. The parents of the petitioner had apprised the petitioner that his wife used to leave home without informing and would return quite late at night, and would not reply when asked as to where had she gone, instead she would quarrel with his parents. She lodged an F.I.R. against the petitioner and his family members under sections 498 A, 323, 504 and 506 IPC at PS Sikandra, District Agra, which was investigated and a final report was submitted. On 26/7/2004 when his wife was admitted in hospital for delivery, respondent no. 2 reached the hospital and started misbehaving with his parents and due to manhandling, the gun of his father, which was loaded, got fired accidentally. The respondent no. 2, with an ulterior motive, lodged an F.I.R. against the petitioner on 26/07/2004 stating therein that when the first informant along with his son, Neeraj and Jitendra went to military hospital to visit Smt. Asha (his daughter), the family members of the petitioner did not allow them to meet her. The first informant came out of the hospital and at the same time, the father of the petitioner also came behind him and called petitioner on phone. After some time the petitioner along with another person reached hospital with a gun and fired upon the first informant, but he survived. It is further mentioned in the F.I.R. that two military personnel, who were present at the gate, also sustained pellet injuries along with the son of the first informant, Jitendra. Injury reports dated 26/07/2004 and 27/07/2004 were also annexed. After investigation the police submitted charge sheet under Section 285 IPC. The first informant as well as the two army personnel had filed affidavits before the learned Additional Sessions Judge, Agra stating therein that the alleged fire had happened accidentally without any intention to kill anyone and that the parties had entered into a compromise. The petitioner had surrendered before the lower Court even before submission of charge- sheet and was enlarged on bail under Section 307 IPC, with an observation that “no firearm injury received in the incident which took place between the members themselves”. The petitioner filed an application before learned ACJM, Court No. 35, Agra for discharging the petitioner, as there was no ample evidence against him to frame charge. The learned trial Court framed charges vide order dated 6.4.2008 under section 286 IPC and under Section 25/27 of Arms Act only. Against the said order dated 06/04/2006, the petitioner filed a Criminal Revision No. 81 of 2006, but the same was rejected. After framing of charge against the petitioner, two witnesses from the side of prosecution namely Neeraj Singh (PW 1) and first informant, Nathan Pal Singh (PW 2) were produced, on the basis of whose statements an application under Section 216 Cr.P.C. was moved by the complainant before learned C.J.M., Agra for alteration of charge, which was rejected, and it was held that no offence was found to have been made out under section 307 IPC. Aggrieved by that order, a Criminal Revision No. 316 of 2008 was preferred in the Court of Additional Sessions Judge, Court No. 5, Agra by respondent no. 2, and the said Court, without looking into the contradictions in the statements and the contents of F.I.R., illegally allowed the revision and directed the lower Court to commit the case to the Court of Sessions for trial. The said order is bad in law, against the material available on record. The Court did not consider that the first informant and two army personnel had filed affidavits during investigation, stating clearly that gunshot had got accidentally fired without intention to kill anyone, nor did the Court consider the medical report of the injured, in which no opinion was given that injuries were caused by fire arm. There were contradictions in the statements of PW 1 and PW 2 and the F.I.R. version. On a bare perusal of statements of PW 1 and PW 2, no offence under section 307 IPC was made out against the petitioner, but the learned revisional Court solely on the basis of the examination-in-chief of these witnesses, altered the charge from Section 286 IPC to Section 307 IPC and directed that the case be committed to the Court of Sessions, which is bad in law. The revisional Court ought to have taken the opinion of expert doctors who had prepared the injury memo, before passing the impugned order. The said order deserves to be set aside.

4. In counter affidavit filed by the respondent no. 1 dated 21st of August 2009, the impugned order has been prayed to be upheld and that the said writ petition be dismissed.

5. Supplementary affidavit was filed by the petitioner on 19th of September 2017 stating therein that after commitment of the case to the Court of Sessions, charge under Section 307 IPC was made on 31/05/2017 in ST No. 439 of 2017, (State vs Harvir Singh Parihar). Thereafter the statement of PW 1 and PW 2 have been recorded, in which no cogent evidence has emerged of offence under Section 307 IPC so as to make it triable by the Court of Sessions, hence the said case is liable to be remanded to the Court of Magistrate for trial. The entire story revealed by these witnesses is fabricated and the averments made in the affidavits submitted by the injured persons, were repeated.

6. The son of respondent number 2, Netra Pal Singh has filed affidavit/ counter affidavit, in which allegation of harassment of his daughter by the revisionist for demand of dowry has been made as well as it has been stated that pressure from the side of petitioner and his family was exerted upon his daughter to get the female child aborted. It is also stated that when the respondent no. 2 went to the military hospital, the petitioner had reached there and fired upon opposite party no. 2 and others, which caused injuries to Neeraj, Jitendra and two army personnel. Rest of the facts regarding submission of charge- sheet and orders passed by the trial Court and the revisional Court have been also mentioned, but it is also stated that the Criminal Revision No. 316 of 2000 (Netra Pal Singh vs State of U.P. and another) was allowed vide order dated 02/05/2009 and it was held that prima facie case under Section 307 IPC was found made out. Against that order, the proper remedy was to file a revision and not a writ petition. It is further mentioned that there was a stay order in operation in the writ petition, which was vacated by Hon’ble Court vide order dated 03/01/2017, pursuant to which, respondent no. 2 moved an application before the lower Court and the case was committed to the Court of Sessions and charge under section 307 IPC was framed against the petitioner. Thereafter two witnesses namely, Nathan Pal Singh as PW 1 and Neeraj as PW 2 were recorded. After their statements, an application under section 319 Cr. P.C. was moved for summoning the father of the petitioner, Surendra Pal Singh to face trial under Section 307 IPC and section 25/27 of the Arms Act including other sections. On the basis of said application Surendra Pal Singh was also summoned to face trial under aforesaid sections. Against the summoning order under section 319 Cr. P.C., Surendra Pal Singh had preferred an Application under Section 482 Cr.P.C. bearing No. – 30481 of 2017, (Surendra Singh vs State of U.P. and another), wherein this Court dismissed the said petition and upheld the order dated 20.09.2017, whereby offence of under section 307 IPC was found to have made out against him . The present writ petition has become infructuous in view of the fact that the charge had already been framed against the petitioner as well as co-accused Surendra Pal Singh. Evidence had been led and the statements of eye-witnesses had already been recorded.

7. The learned counsel for the petitioner has relied upon P. Kartikalakshmi vs Sri Ganesh and another, (2017) 3 Supreme Court Cases 347, in which it is held that if there was an omission in framing of charge and if it comes to the knowledge of Court trying the offence, the power is always vested in Court, as provided under section 216, to either alter or add the charge and that such power is available with Court at any time before judgment is pronounced. It is an enabling provision for Court to exercise its power under certain contingencies which comes to its notice or brought to its notice. In such a situation, if it comes to the knowledge of Court that a necessity has arisen for the charge to be altered or added, it may do so on its own and no order need be passed for that purpose. After such alteration or addition, when the final decision is rendered, it will be open for parties to work out their remedies in accordance with law. It is clear that no party, neither de facto complainant nor accused nor prosecution, has any vested right to seek any addition or alteration of charge because it is not provided under section 216 Cr. P.C.. If such a course were to be permitted to be adopted by parties, then it will be well nigh impossible for criminal Court to conclude its proceedings and concept of speedy trial will get jeopardised. It was held in this case that the trial Court was dealing with a case for offence under Section 376 IPC as against R-1. In F.I.R., there was charge noted under Section 417 IPC, but when the charge came to be framed against R-1, it was confined to Section 376 IPC. The appellant then filed an application invoking Section 216 Cr.P.C., wherein a prayer was made to add an additional charge for offence under Section 417 IPC along with charge under Section 376 IPC and to treat the additional charge as one of the original charges as provided under Section 216 (3) Cr.P.C.. The trial Court rejected the said prayer. A revision was filed before High Court under Section 397 and 401 Cr.P.C., wherein the impugned order came to be passed. The High Court took the view, insofar as claim of appellant, for framing an additional charge under section 216 Cr.P.C. to the effect that it was not for accused nor for complainant to apply and seek for such a modification in charge before trial Court. It was held in the light of above legal position, that when an application is preferred by the appellant itself before trial Court was not maintainable, it was not incumbent upon trial Court to pass an order under Section 216 Cr. P.C.. Therefore, there was no question of said order being revisable under Section 397 Cr.P.C.. Hence the whole proceeding, initiated at the instance of appellant, was not maintainable and it was thoroughly misconceived and vitiated in law and ought not to have been entertained by trial Court. Such a course adopted by appellant and entertained by Court below had unnecessarily provided scope for protraction of proceedings, which ought not to have been allowed by Court below.

8. In the light of above position of law in the case at hand it was argued that because the charge was amended on an application moved by the respondent no. 2 that charge under Section 307 IPC needed to be added, which was allowed by the revisional Court, the complainant/respondent number 2 did not have a right to move such an application to seek amendment in charge, therefore whatever actions have been taken by the courts below in pursuance of the application for amending the charge moved by the respondent no. 2 need to be set aside. Consequently the entire evidence which has been recorded after modification of charge at the instance/moving application by the respondent number 2, in the light of above position of law, needs to be quashed from that point onwards.

9. It would be pertinent to refer here the position of law laid down in Anant Prakash Sinha vs State of Haryana, (2016) 6 SCC 105, in which in Para 22 following is held:

“22. Being of this view, this Court upheld the order passed by the High Court. The said decision in Shiv Kumar case (1999)7SCC 467 is, in our opinion, distinguishable on facts. The instant case does not pertain to trial or any area by which a private lawyer takes control of the proceedings. As is evident, an application was filed by the informant to add a charge under section 406 IPC as there were allegations against the husband about the criminal breach of trust as far as her stridhan is concerned. It was, in a way, bringing to the notice of the learned Magistrate about the defect in framing of the charge. The Court could have done it suo motu. In such a situation, we do not find any fault on the part of the learned Magistrate in entertaining the said application. It may be stated that the learned Magistrate has referred to the materials and recorded his primafacie satisfaction. There is no error in the said primafacie view. We also do not perceive any error in the revisional order by which the revisional Court has set aside the charge framed against the mother-in-law. Accordingly, we affirm the order of the High Court in expressing its disinclination to interfere with the order passed in revision. We may clarify that the entire scrutiny is only for the purpose of framing of charge and nothing else. The learned Magistrate will proceed with the trial and decide the matter as per the evidence brought on record and shall not be influenced by any observations made as the same have to be restricted for the purpose of testing the legal defensibility of the impugned order.”

10. It is apparent from the above case law that in this case an application was filed by the informant for addition of charge under section 406 IPC as there were allegations against the husband about criminal breach of trust, it was held by the Apex Court that the Court could have done so suo motu as well, therefore no fault was found on the part of the Magistrate in entertaining the said application and it was held by the Court that the learned Magistrate had referred to the material and recorded his primafacie satisfaction for framing the said charge, hence there was no prima facie error.

11. Therefore it is clear that though there is no vested right in any party, whether complainant/accused or prosecution to seek additional or alteration in charge is by filing any application as a matter of right, but in case any infirmity in the charge is brought to the notice, whether by moving an application or otherwise, by any of the parties and the trial Court being aware of the same, goes through the evidence on record and amends/alters the charge, that would entail no infirmity in such amended charge and the trial may proceed.

12. In the case at hand it is apparent that an F.I.R. was lodged by respondent number 2, Netra Pal Singh against the petitioner and his father under sections 307 IPC registered as crime number 413 of 2004 and under sections 25/27 of Arms Act registered as crime number 414 of 2004 against Harveer Singh Parihar only and after investigation the police filed charge sheet under section 285 IPC in crime number 413/2004 against Harveer Singh Parihar. Complainant, and thereafter moved an application dated 12/05/2008 before the trial Court is for amendment in charge after the Court had recorded statements of PW 1 and PW 2 because on the basis of their statements, an offence under section 307 IPC was made out. The said application was dismissed by the trial Court vide order dated 14/10/2008. Against that order revision was preferred by the respondent number 2 which was allowed vide order dated 02/05/2009 and setting aside the trial Court’s order it was directed that since the case under section 307 IPC was primafacie made out, the file shall be committed to the Court of Sessions. Against this order the present writ petition has been preferred seeking quashing of the revisional Court’s order dated 02/05/2009 and quashing of the proceedings of criminal case number 1832 of 2004 under section 307 IPC. After hearing in this matter the High Court had stayed the order dated 02/05/2009 vide its order dated 25/05/2009 which got vacated vide this Court’s order dated 03/01/2017. Thereafter respondent number 2 moved an application before concerned Court to proceed with the trial and accordingly charge was framed against the petitioner under section 307 IPC. Thereafter two witnesses were recorded as PW 1 and PW 2, whereafter the respondent No. 2 moved an application under section 319 Cr. P.C. to summon Surendra Pal Singh as co-accused to face trial under section 307 IPC and 25/27 of Arms Act, including other sections. After consideration of the said application Surendra Pal Singh was summoned. Against the said summoning order, an application under 482 Cr. P.C. was moved registered as 30481 of 2017, which was dismissed on 20/09/2017, holding that offence under section 307 IPC was made out.

13. Looking to the above details, it is absolutely clear that not only the revisional Court, but even in proceedings under section 482 Cr.P.C., this Court has found that offence under section 307 IPC was made out prima facie, for framing of charge in this case.

14. Perusal of the impugned order and the evidence on record makes it clear that it has been recorded in the impugned order that F.I.R. was lodged by respondent No. 2 against the petitioner under section 307 IPC alleging that Jitendra Singh, Neeraj Singh, Dharam Singh and Bhim Singh had received injuries in this occurrence, who were medically examined. Ordinary injuries were found on their bodies. During investigation, from the side of respondent No. 2 an affidavit was submitted to the effect that SP Singh and Harvir Singh did not intend to commit murder and that the occurrence had happened unfortunately, but the revisional Court concluded from this that it could not be held in the light of that affidavit that the occurrence did not happen. The affidavit has no significance, because in statement given on oath he had clearly stated that Harvir had fired upon him with an intention to kill, pallets of which hit Jitendra and two Army personnel. Under such circumstances it would be held prima facie established on the basis of evidence that the injured were caused injuries by the fire made by the accused. Both PW 1 and PW 2 have stated that the fire was made by the accused with an intention to kill, therefore the case was found made out under section 307 IPC. From this conclusion, this Court also concurs that it would require trial under section 307 IPC to establish whether accused respondent is guilty under section 307 IPC or not.

15. Therefore no infirmity is found in the impugned order. The revision deserves to be dismissed and is accordingly dismissed

Order Date :- 28.03.2018

A.Mandhani

 

 

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