Jharkhand High Court

Josmuddin Sk vs The State Of Jharkhand on 5 August, 2021

IN THE HIGH COURT OF JHARKHAND AT RANCHI
                 W.P.(Cr.) No. 97 of 2020
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Josmuddin Sk, aged about 45 years, son of late Saifuddin SK, resident of Mauza Gopalpur, P.S.-Mararoi, District-Birbhum (W.B.) ... .... .... Petitioner Versus The State of Jharkhand ... .... Respondent With Cr.M.P. No. 1793 of 2017

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1. Sanjay Singh, son of Sri Shyam Bihari Singh

2. Vijay Singh @ Bijay Singh, son of Sri Shyam Bihari Singh Both residents of Manitand, Near Sakari Kuya, P.O. and P.S. Dhansar, District-Dhanbad ... .... .... Petitioners Versus

1.The State of Jharkhand

2. Manoj Kumar Singh, son of Sri Ram Naresh Singh, resident of Shiv Mandir Road, Gandhi Nagar, Dhansar, P.O. Dhansar, P.S. Bankmore (Dhanbad), District-Dhanbad ... .... Opposite Parties

CORAM : HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

For the Petitioner (s) : Mr. Kanti Kumar Ojha, Advocate (in W.P. (Cr). No. 97/2020 Mr. R.S. Mazumdar, Sr. Advocate (in Cr.M.P. No. 1793/2017) For the State : Mr. Deepankar Roy, Advocate (in W.P.(Cr. No. 97/2020) Mr. Sanjay Kumar Srivastava, A.P.P.

(in Cr.M.P. No. 1793/2017

C.A.V. On 13/07/2021: Pronounced on:- 05/08/2021

In both these petitions, question of facts and law involved are

similar, that is why both the petitions have been heard together with the

consent of the learned counsel for the parties.

2. Heard Mr. R.S. Mazumdar, learned senior counsel and Mr. Kanti

Kumar Ojha, learned counsel for the petitioners and Mr. Deepankar Roy and

Mr Sanjay Kumar Srivastava, learned counsels for the State.

3. These petitions have been heard through Video Conferencing

in view of the guidelines of the High Court taking into account the situation

arising due to COVID-19 pandemic. None of the parties have complained

about any technical snag of audio-video and with their consent this matter

has been heard.

Cr.M.P. No. 1793 of 2017

4. This petition has been filed for quashing of order dated

21.06.2017 passed by learned Additional Sessions Judge-VIII, Dhanbad in

connection with S.T. Case No. 344 of 2013 arising out of Dhanbad (Bank

More) P.S. Case No. 219 of 2013 (G.R. No. 839 of 2013) whereby charge

has been framed under section 302/34 and 307/34 of the I.P.C. and Section

27/35 of the Arms Act and further evidence of two of the witnesses namely,

Sumesh Mazumdar and Dr. Swapan Kumar Sarak has been expunged,

pending in the Court of learned Additional Sessions Judge-VIII, Dhanbad.

5. F.I.R. was lodged on the following facts:-

"On the alleged date of occurrence the informant was

working in his shop. In the meantime, the accused persons came

there and started abusing the informant. It is further alleged that

when the informant tried to intervene, then one Krishna Singh

made fire with an intention to kill him which hit in his leg. In the

meantime, his staff Manoranjan Kumar Singh also sought that one

Sanjay Singh made fire upon him. Thereafter both the victim gone

to the hospital for treatment with the help of others but in course of

way, said Manoranjan Singh died due to his injury."

6. Mr. R.S. Mazumdar, learned senior counsel appearing on behalf of

the petitioners in Cr.M.P. No. 1793 of 2017 submitted that after

investigation chargesheet was submitted and thereafter cognizance was

taken under sections 302/307/34 of the Indian Penal Code and under

section 27 of the Arms Act against the petitioners and others. He submitted

that there was no evidence in the entire case record regarding the

involvement of the present petitioners in the alleged offence. He submitted

that the charges under section 302, 307 and 34 of the Indian Penal Code

and Section 27 of the Arms Act in the instant case have been framed against

the petitioners vide order dated 15.02.2014 by the learned 1st Additional

Sessions Judge, Dhanbad. He submitted that being aggrieved by the said

order dated 15.02.2014, petitioner no. 2 namely, Vijay Singh @ Bijay Singh

moved before this Court in Cr. Revision No. 194 of 2014. The said Cr.

Revision No. 194 of 2014 was disposed of vide order dated 10.12.2014 by

way of setting aside order dated 15.02.2014 and the matter was remitted

back to the court below to pass necessary order after considering the

materials on record and giving opportunity of hearing to both the parties.

He submitted that thereafter petitioners preferred a petition for discharge

under Section 227 Cr.P.C. before the Court of learned Additional Sessions

Judge-VIII, Dhanbad which was rejected vide order dated 19.08.2016 and

the case was fixed on 07.09.2016 for framing of charge. He submitted that

the petitioners again moved before this Court in Criminal Revision No. 1177

of 2016 which was dismissed vide order dated 06.02.2017. Thereafter,

vide order dated 21.06.2017, learned Additional Sessions Judge-VIII,

Dhanbad has been pleased to frame charge under sections 302/34 and

307/34 of the Indian Penal Code and under section 27/35 of the Arms Act

against the petitioners. He submitted that by the same order, the learned

Trial Court expunged the evidence of two witnesses who were examined

earlier.

7. Only point raised by Mr. Mazumdar, on these background was that

the said order while framing charge, the learned Sessions Judge has

directed to expunge evidence of P.W.1 and P.W.2 namely, Sumesh

Mazumdar and Dr. Swapan Kumar Sarak respectively vis a vis which is

against the settled principles of law. To buttress his argument, learned

senior counsel for the petitioners relied upon judgment in the case of

"Satyajit Banerjee & Others V. State of W.B. & Others" reported in

(2005) 1 SCC 115 wherein paragraph 27, the Hon'ble Supreme Court has

held as under:-

"27. So far as the position of law is concerned we are very clear that even if a retrial is directed in exercise of revisional powers by the High Court, the evidence already recorded at the initial trial cannot be erased or wiped out from the record of the case. The trial Judge has to decide the case on the basis of the evidence already on record and the additional evidence which would be recorded on retrial."

W.P.(Cr.) No. 97 of 2020

8. This petition has been filed for quashing of order dated 26.02.2020

passed by the learned Principal District & Sessions Judge, Pakur in S.T. Case

No. 81/16 whereby application preferred by the prosecution dated

16.09.2019 has been allowed and direction was issued for de-novo trial.

9. F.I.R. was lodged on the following premises:-

" On the basis of self-statement of S.I., Malpahari O.P. Pakur,

F.I.R. was lodged on 18.02.2016 at Pakur Town P.S. under sections

4 and 5 of Explosive Substance Act, 1908 against two persons

including petitioner alleging therein that on the date of occurrence

i.e. 17.02.2016, the informant was posted at Malpahari O.P. and at

about 6.20 p.m., he along with other armed forces proceeded for

patrolling and in due course of time at about 7.30 p.m. at Rampur

village and began to check the motorcycle. During patrolling, the

informant saw two persons riding the motorcycle with a bag kept in

between them and immediately seeing the police, both the persons

started taking U-turn. Thereafter, the police party started chasing

the said bike and entered the village Shree Rampur. As the police

party entered the village, towards the home of one Gushan Hansda,

son of late Lakhi Ram Hansda, the police party saw the two riders

of the motorcycle and out of which one was seen dragging the bag

inside the home of Gushan Hansda whereas the other was fleeing

away in the motorcycle.

It is further alleged that the police party immediately

caught one of person with the bag who on being caught and on

being inquired disclosed his name to be JosmddinSeikh, aged about

42 years, son of late Saifudding Seikh, resident of Mauza Gopalpur,

P.S. Maruroi, District Birbhum (W.B.). On further enquiry, the name

of other accused running with the motorbike was found to be

Asadul Seikh, son of Peru Seikh, resident of Ambua Police Station,

Maruroi, District Birbhum. The person who was caught red-handed

disclosed that he an Asadul Seikh had been working together

since long. Later on in front of two independent witnesses, the bag

was checked upon which two plastic bags weighing 50 kgs each

petrochemical corporations limited, plot K-7 to 9 MIDC Industrial

Area, Taloja A.V.-410208, District-Regad Maharashtra India Licence

No. A/HQ/MH/PI/3 (A879) written on it were found inside the bag.

On the basis of these allegations, the instant case has been

lodged."

10. Mr. Kanti Kumar Ojha, learned counsel appearing on behalf of

the petitioner in W.P.(Cr.) No. 97 of 2020 submitted that details of all

explosive substance found in the bag was not disclosed and further they

sold these products for the stone quarrying mines for stone blasting. He

submitted that based on the above statement a case under section 4 and 5

of the Explosive Substance Act was instituted against the petitioner. He

submitted that charge-sheet was filed on 10.03.2016 against the petitioner

thereafter, cognizance was taken and charge was framed under sections 4

and 5 of the Explosive Substance Act against the petitioner on 22.09.2016 in

which the petitioner pleaded not guilty and claimed to be tried. The trial

commenced and the witnesses were adduced. He submitted that till the

commencement of the trial, sanction order under section 7 of the Explosive

Substance Act was not obtained by the Deputy Commissioner. He submitted

that in course of trial, a petition dated 16.09.2016 was filed by the

respondent-State under section 317 Cr.P.C. which was heard on 26.02.2020

by the Trial Court. He submitted that in the said application prayer was

made for de-novo trial as the consent order of the Deputy Commissioner

was granted on 19.12.2006 whereas charge was framed on 22.09.2006. He

further submitted that vide order dated 26.02.2020, the learned Court of

District & Sessions Judge allowed the said petition. Learned counsel for the

petitioner submitted that the while passing the said order, learned trial court

wrongly set-aside the testimony of P.W.1 -Rathunath Manjhi. Learned

counsel for the petitioner also relied on judgment in the case of "Satyajit

Banerjee" (supra) which has been relied on by the Mr. Mazumdar.

11. Mr. Deepankar Roy, learned A.C. to A.G. appearing on behalf

of the respondent-State in W.P.(Cr.) No. 97/2000 and Mr. Sanjay Kumar

Srivastava, learned counsel appearing on behalf of the State in Cr.M.P. No.

1793/2017 jointly submitted that there is no illegality in the impugned

orders and they further submitted that the Trial Court has rightly framed

charges and directed for de-novo trial.

12. Mr. Deepankar Roy, learned A.C. to A.G. relied on judgment in the

case of "Nanjappa Vs. State of Karnataka" reported in (2015) 14 SCC

186 wherein paragraphs 12, 13 and 14, the Hon'ble Supreme Court has

held as under:-

"12. In Baij Nath Prasad Tripathi v. State of Bhopal a Constitution Bench of this Court was dealing with the case of a Sub-Inspector of Police from the then State of Bhopal, who was prosecuted by the Special Judge, Bhopal and convicted of the offences punishable under Section 161 IPC and Section 5 of the Prevention of Corruption Act, 1947. He was sentenced by the trial court to undergo nine months' rigorous imprisonment on each count. In an

appeal before the Judicial Commissioner against the said conviction and sentence, it was held that since no sanction according to law had been given for the prosecution of the accused, the Special Judge had no jurisdiction to take cognizance of the case and that the trial was invalid and void ab initio, hence quashed relegating the parties to the position as if no legal charge-sheet had been submitted against the appellant. The accused was then tried for a second time before another Special Judge to which prosecution, the accused took exception on the ground that a second trial was impermissible having regard to the provisions of Article 20(2) of the Constitution of India and Section 403 of the Code of Criminal Procedure. A similar contention was raised by Sudhakar Dube, another Sub-Inspector of Police who was similarly tried and prosecuted but the Special Judge finding the sanction order to be incompetent had quashed the proceedings. Dube was also thereupon sought to be tried for the second time which second trial was assailed by him in the writ petition before this Court.

13. The short question that fell for consideration in Baij Nath case in the above backdrop, was whether the petitioners had been prosecuted and punished within the meaning of Article 20 of the Constitution of India or tried by a court of competent jurisdiction within the meaning of Section 403(1) of the Code of Criminal Procedure. It was urged on behalf of the respondent, that in case the previous trial was null and void and non est, a second trial was legally permissible. That contention found favour with the Court.

14. Relying upon Yusofalli Mulla Noorbhoy v. R., Basdeo Agarwalla v. Emperor and Budha Mal v. State of Delhi, it was held that the accused had neither been tried by a court of competent jurisdiction nor was there any accusation or conviction in force within the meaning of Section 403 CrPC to stand as a bar against their prosecution for the same offences. The following passage from the decision succinctly sums up the legal foundation for accepting the contention urged on behalf of the State of Bhopal: (Baij Nath case, AIR p. 496, para 6) "6. ... If no court can take cognizance of the offences in question without a legal sanction, it is obvious that no court can be said to be a court of competent jurisdiction to try those offences and that any trial in the absence of such sanction must be null and void, and the sections of the Code on which the learned counsel for the petitioners relied have really no bearing on the matter. Section 530 of the Code is really against the contention of the learned counsel, for it states, inter alia, that if any Magistrate not being empowered by law to try an offender, tries him, then the proceedings shall be void. Section 529(e) is merely an exception in the matter of taking cognizance of an offence under Section 190, sub-section (1), clauses (a) and (b); it has no bearing in a case where sanction is necessary and no sanction in accordance with law has been obtained."

13. Relying on the aforesaid judgment, Mr. Deepankar Roy, learned A.C.

to A.G. appearing on behalf of the respondent-State submitted that in both

the cases, sanction point was considered wherein it has been held that

second trial for the same offence upon very sanction can be proceed.

14. On these premises, the Court has gone through the impugned

orders. Admittedly, in W.P.(Cr.) No. 97 of 2020, sanction was obtained

lateron after commencement of the trial. It is well-settled that it is duty of

the Court to see that the perpetrators of crime are tried and convicted if

offences are proved. In the event in absence of sanction if the accused is

discharged and after sanction the fresh trial can take effect. This aspect of

the matter has been considered by the Hon'ble Supreme Court in the case of

"Deepak Khinchi Vs. State of Rajasthan" reported in (2012) 5 SCC

284 wherein paragraphs 10, 16, 17 and 26 the Hon'ble Supreme Court has

held as under:-

"10. It would be advantageous to produce the relevant portion of the said sanction order:

"From the investigation of the case it has been revealed that the accused while acting negligently and in violation of the rules of the licence, kept in his shop, in residential area, highly inflammable substance solvent with the knowledge that it could at any time cause heavy loss to life and property but then also he committed this act due to which the explosion took place and the incident happened and damage has been caused to life and property. Therefore, against the accused Deepak Khinchi, s/o Madan Lal Khinchi, r/o Gandhi Nagar, Chittorgarh prima facie the case under Sections 3, 4, 5 and 6 of the Explosive Substances Act, 1908 is found to have been proved due to which under Section 7 of the Explosive Substances Act, 1908 the sanction for prosecution upon the filing of the challan before a competent court is granted." It is surprising that in a serious case like this, the prosecution should not challenge the order dated 15-5-2010 passed by the learned Sessions Judge.

16. As stated hereinabove, on 1-4-2008 sanction was issued by the District Magistrate, Chittorgarh, but the application made by the prosecution for framing the charge against the appellant under the said Act was rejected by the learned Sessions Judge. We are prima facie satisfied that the letter of the District Magistrate, Chittorgarh issued on 1-4-2008 gave good and valid consent as envisaged under Section 7 of the Act for trial of the appellant for the offences under the said Act and the learned Sessions Judge was in error in rejecting the consent letter by his order dated 15-5-2010.

17. The proper course for the prosecution was to challenge that order and have it set aside by the High Court. Instead of taking that course, a fresh sanction was issued by the District Magistrate, Chittorgarh on 1-6-2008. The prosecution then filed an application

under Section 311 of the Code. It was prayed that sanction issued under Section 7 of the said Act by the District Magistrate be taken on record and the appellant be tried for offences under Sections 3, 4, 5 and 6 of the said Act. The learned Sessions Judge while granting the said application, relied on the judgment of the Rajasthan High Court, Jaipur Bench in Ramjani v. State of Rajasthan wherein it was held that where sanction under Section 7 of the said Act is not obtained, the prosecution will have to be quashed but it would be open to the prosecution to start the prosecution afresh after obtaining sanction from the competent authority. The High Court upheld this order.

26. The offence in this case is equally grave. At no stage, was sanction refused by the competent authority. It is not the case of the appellant that sanction is granted by the authority, which is not competent. It is true that the proceedings are sought to be initiated under the said Act against the appellant after three years. But, in the facts of this case, where 14 innocent persons lost their lives and several persons were severely injured due to the blast which took place in the appellant's shop, three years' period cannot be termed as delay. It is also the duty of the court to see that the perpetrators of crime are tried and convicted if offences are proved against them."

15. The aforesaid case was also arisen out of Explosive Substance Act

and sanction was obtained after lapse of 3 years and the Hon'ble Supreme

Court came to the conclusion that fresh trial under the Explosive Substance

can be proceeded. Moreover, there is no provision either in the Code of

Criminal Procedure or in the Evidence Act to expunge the evidence of

witnesses if at all there was a conflict in the evidence of any P.Ws the Trial

Court was always at liberty to agree with the evidences coming in the

subsequent trial.

16. Thus, the Trial Court in the case of W.P.(Cr.) No. 97/2020 was not

justified in setting aside the testimony of P.W.1. So far fresh trial is

concerned, there is no illegality in that order for framing of charge. That

part of order by which the testimony of P.W.1 was set-aside, is bad in law