Jharkhand High Court
Haldhar Sao vs The State Of Jharkhand on 11 September, 2023
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. M. P. No. 2610 of 2022
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Haldhar Sao ... .... Petitioner
Versus
The State of Jharkhand ... .... Opp. Party
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CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY
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For the Petitioner : Mr. Nilesh Kumar, Advocate
For the State : Mrs. Vandana Bharti, A.P.P.
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Oral Order
10 / Dated : 11.09.2023
1. The instant criminal misc. petition has been filed under Section 482 Cr.P.C. for
setting aside the order dated 22.06.2022 passed under Section 319 of Cr.P.C. in
S.T. No. 195 of 2018 whereby and where under, non-bailable warrant has been
issued against the petitioner.
2. The present case arises out of Gola P.S. Case No. 21 of 2016 under Section
302, 34 of IPC lodged by Bina Devi stating therein that in the night of
18.03.2016 she was returning from the agricultural field along with her
husband then Rajendra Bedia, Haldhar Saw and Shankar Sao intercepted them
and thereafter Rajendra Bedia inflected sharp cut injury by one weapon of
offence being 'Tabli" as a result her husband sustained grievous injury. On
being assaulted by the accused persons, she started running away from the
place of occurrence and the accused persons also fled away. Her husband
sustained grievous bleeding injuries and he died during course of treatment at
RIMS at Ranchi in the night of 19.03.2016.
3. After investigation, initially charge sheet being No. 65 of 2016 was submitted
on 17.06.2016 against Rajendra Bedia. After cognizance Rajendra Bedia was
put on trial in S.T. No. 120 of 2016 and was convicted of the charge by
judgment dated 28.11.2019. Keeping the investigation pending against other
accused persons, second charge sheet being No. 21 of 2016 was submitted on
31.10.2018 under Sections 302, 34 of IPC against the accused Shankar Sao @
Shankar Mahto whereas this petitioner was not sent up for trial.
4. Accused Shankar Sao @ Shankar Mahto along with the petitioner was put on
trial in S.T. No. 195 of 2018 in which altogether 14 witnesses were examined.
However, in the charge sheet 13 witnesses have been cited. After almost
concluding the genesis of witnesses, the impugned order was passed arraying
the petitioner as an accused in the present case.
5. The impugned order has been assailed on the ground that there is inordinate
delay in passing the order arraying the petitioner as an accused in this case. The
petitioner was not set up for trial and in S.T. No. 120 of 2016 in which co-
accused Rajendra Bedia was convicted of the offence after examining the
informant and other witnesses, he was not proceeded against and made an
accused.
6. When the accused was not sent up for trial, cognizance could have been taken
against him on the basis of the materials available in the case diary but no
cognizance was taken. In the present Sessions trial the statement of the
informant was recorded in the present Sessions Trial on 03.08.2019 as PW 9
but still no order was passed and only at the fag end of trial the impugned order
has been passed on 22.06.2022. It has been held in (2019) 7 SCC 806 in para
13 and 14. The petitioner is aged about 71 years and the investigating agency
has considered this aspect along with the statement of the independent
witnesses wherein they have stated that the accused (petitioner) was not present
at the place of occurrence. In the evidence of P.Ws. 11, 12, 13 and 14, plea of
alibi of the petitioner has been substantiated.
7. Learned counsel for the State has opposed the quashing petition and submitted
that under Section 134 of the Evidence Act only one trustworthy witnesses is
sufficient for conviction. This consistent case of the prosecution as set out in
the FIR is that this petitioner is one of the assailants and the informant is the
eye witness who was accompanying her husband at the relevant time of
incidence and has stated in the FIR that this petitioner and others had
intercepted them and assaulted the deceased. Immediately after the incidence,
the informant had informed her two sons and three guards who have stated in
their evidence before the Court that the informant had informed them about
complicity of the petitioner in the alleged offence. Learned court below has
discussed at length the reason for disbelieving the plea of alibi taken on behalf
of the petitioner. Reliance is placed on Michael Machado v. CBI, (2000) 3
SCC 262 :
12. But even then, what is conferred on the court is only a discretion as
could be discerned from the words "the court may proceed against such
person". The discretionary power so conferred should be exercised only
to achieve criminal justice. It is not that the court should turn against
another person whenever it comes across evidence connecting that other
person also with the offence. A judicial exercise is called for, keeping a
conspectus of the case, including the stage at which the trial has
proceeded already and the quantum of evidence collected till then, and
also the amount of time which the court had spent for collecting such
evidence. It must be remembered that there is no compelling duty on the
court to proceed against other persons.
14. The court while deciding whether to invoke the power under Section
319 of the Code, must address itself about the other constraints imposed
by the first limb of sub-section (4), that proceedings in respect of newly-
added persons shall be commenced afresh and the witnesses re-
examined. The whole proceedings must be recommenced from the
beginning of the trial, summon the witnesses once again and examine
them and cross-examine them in order to reach the stage where it had
reached earlier. If the witnesses already examined are quite large in
number the court must seriously consider whether the objects sought to
be achieved by such exercise are worth wasting the whole labour
already undertaken. Unless the court is hopeful that there is a
reasonable prospect of the case as against the newly-brought accused
ending in being convicted of the offence concerned we would say that
the court should refrain from adopting such a course of action.
8. Petitioner in this case was named in the FIR but the charge-sheet was not is
submitted and investigation was kept pending. During the pendency of the
investigation charge-sheet was submitted against one Rajendra Bedia was put
on trial and convicted of the charges.
9. Later on the charge-sheet was submitted against another accused but he was not
sent up for trial. The trial has been concluded when the impugned order has
been passed issuing warrant against the Petitioner. Some of the prosecution
witnesses have stated that the petitioner was not present at the place of
occurrence.
10. The power to proceed against any person, not being the accused before the
court, must be exercised only where there appears during inquiry or trial
sufficient evidence indicating his involvement in the offence as an accused and
not otherwise. This power is not to be exercised in a routine manner. A mere
doubt about involvement of the other person on the basis of evidence is not
enough. The court must also be satisfied that circumstances justify and warrant
that that he must be proceeded against .Considering the overall facts and
circumstance of the case this Court is of the view that it will not be in the
interest of justice to proceed against the petitioner at the belated stage of trial
when there are contradictory evidence appearing against him regarding
complicity in the offence.
The impugned order is set aside. Criminal miscellaneous petition is
allowed.
(Gautam Kumar Choudhary, J.)
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