Patna High Court
Rabindra Yadav vs The State Of Bihar on 6 August, 2024
Author: Rajeev Ranjan Prasad
Bench: Rajeev Ranjan Prasad, Shailendra Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.582 of 2021
Arising Out of PS. Case No.-32 Year-2015 Thana- SIWAN CITY District- Siwan
======================================================
Rabindra Yadav, Son of Jay Ram Yadav, Resident of Village - Siswan Kodar,
P.S.- G.B Nagar, District- Siwan, Bihar
... ... Appellant
Versus
1. The State of Bihar
2. Mohan Yadav, Son of Late Vishwnath Yadav, Resident of Village - Siswan
Kodar, P.S.- G.B Nagar, District- Siwan, Bihar
3. Balindra Yadav, Son of Late Vishwanath Yadav Resident of Village - Siswan
Kodar, P.S.- G.B Nagar, District- Siwan, Bihar
4. Mahesh Yadav, Son of Late Vishwanath Yadav Resident of Village - Siswan
Kodar, P.S.- G.B Nagar, District- Siwan, Bihar
... ... Respondents
======================================================
Appearance :
For the Appellant : Mr. Prashant Kumar, Advocate
Mr. Netan Chouhan, Advocate
For the State : Ms. Shashi Bala Verma, Addl PP
For the Resp Nos 2 to 4 : Mr. Yogesh Chandra Verma, Senior Advocate
Mr. Ajay Kumar Pandey, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
and
HONOURABLE MR. JUSTICE SHAILENDRA SINGH
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD)
Date : 06-08-2024
Heard Mr. Prashant Kumar, learned counsel for the
appellant, Mr. Y. C. Verma, learned Senior Counsel assisted by Mr.
Ajay Kumar Pandey, learned counsel for the Respondent Nos. 2 to
4 and Ms. Shashi Bala Verma, learned Additional Public
Prosecutor for the State.
2. The present appeal has been preferred by the
informant who is aggrieved by and dissatisfied with the judgment
Patna High Court CR. APP (DB) No.582 of 2021 dt.06-08-2024
2/11
dated 16.09.2019 (in short 'impugned judgment') passed by
learned Additional Sessions Judge-IV, Siwan (hereinafter referred
to as the 'learned trial court') in Sessions Trial No. 516 of 2017
arising out of Siwan G.B. Nagar P.S. Case No. 32 of 2015. By the
impugned judgment, the learned trial court has been pleased to
acquit the accused persons of the charges under Section 341, 323,
324, 307, 379, 504 and 506/34 of the Indian Penal Code (in short
'IPC').
Brief Facts of the Case
3. The prosecution case is based on the written report
dated 01.12.2015 submitted by Ravindra Yadav wherein he has
alleged as under:-
The informant has alleged that on 01.12.2015 at about 03:00
pm in the evening, he was at his chimney when (1) Mohan Yadav,
(2) Balindra Yadav, (3) Mahesh Yadav (Respondent Nos. 2 to 4
respectively) came and started abusing him. Mohan Yadav
(Respondent No. 2) told the co-accused persons to kill the
appellant as he has been trying to capture his land. Balindra Yadav
(Respondent No. 3) and Mahesh Yadav (Respondent No. 4)
assaulted the informant with knife on his neck but when he tried to
save himself, it hit near his left ear and the informant got injured
and fell down. Mohan Yadav snatched Rs.20-25 thousand from the
Patna High Court CR. APP (DB) No.582 of 2021 dt.06-08-2024
3/11
informant's pocket which he had earned by selling bricks. The
accused persons also threatened the informant that if he goes to the
police station, they will kill him. One Rajesh Yadav and Sukhlal
Prasad got the informant treated in the hospital.
4. On the basis of the said written report, Siwan J.B.
Nagar P.S. Case No. 32 of 2015 dated 01.12.2015 was registered
for the offences punishable under Sections 341, 323, 324, 307,
379, 504, 506 and 34 IPC.
5. After investigation, police submitted a chargesheet.
The learned Chief Judicial Magistrate, Siwan having found the
prima-facie case on the basis of the said chargesheet, took
cognizance of the offences. Finding that the offences alleged are
triable by the Court of Sessions, the learned Chief Judicial
Magistrate committed the records to the Court of Sessions for trial.
6. In the trial court, charges were explained to the
accused who denied the charges and claimed to be tried
whereupon charges were framed against them vide order dated
28.03.2018
.
Submissions on behalf of the Appellant
7. Learned counsel for the appellant submits that after
framing of charge as the trial began, the learned trial court was
requested to issue summons to the witnesses. Learned counsel
Patna High Court CR. APP (DB) No.582 of 2021 dt.06-08-2024
submits that on 30.01.2019, an application was filed on behalf of
the prosecution for issuance of summons to the witnesses. It is
stated that in the margin portion of the order dated 28.03.2018, the
Office Clerk has recorded "lEeu fuxZr ¼4½" which means summons
were issued to four witnesses only. Learned counsel submits that
in the margin portion of the order dated 05.06.2018, it is recorded
that service reports of summons are attached, therefore, it may be
taken that the summons were served upon the four witnesses. In
the chargesheet, however, there are altogether nine witnesses
including the official witnesses, therefore, on the face of it, it is
evident that summons were not issued to all the prosecution
witnesses.
8. Learned counsel submits that when no witness
appeared to depose, the prosecution filed an application on
30.01.2019 requesting the learned trial court to issue warrant
against the witnesses. The learned trial court directed for issuance
of bailable warrant against the prosecution witnesses but from the
records, this Court will not find any endorsement of the Office that
bailable warrants were issued to the prosecution witnesses.
Learned counsel submits that even in the trial court's records
which are available to this Court, there is nothing to show that
bailable warrants were issued to the prosecution witnesses.
Patna High Court CR. APP (DB) No.582 of 2021 dt.06-08-2024
9. Learned counsel has then taken us to the order dated
29.05.2019 wherein the learned trial court directed for issuance of
non-bailable warrants against the non-official prosecution
witnesses. In the margin portion of the ordersheet, it is recorded
that Office Clerk should issue non-bailable warrant against the
witnesses. It is submitted that those non-bailable warrants were
returned by the police station saying that the persons against whom
non-bailable warrants have been issued are absconding being
afraid of the warrants. It is submitted that once the non-bailable
warrants against non-official witnesses were returned by the police
station, no further step was taken by the learned trial court to
compel the appearance of non-official witnesses. The fact remains
that neither any summons nor any bailable or non-bailable
warrants were issued to some of the non-official witnesses and
then to the official witnesses.
10. Learned counsel submits that from the materials on
the record, it is evident that the learned trial court has not followed
the mandate of Section 230 of the Code of Criminal Procedure (in
short 'Cr.P.C') wherein it is provided that on the application of the
prosecution, the trial Judge shall issue any process for compelling
the attendance of any witness or the production of any document
or other things.
Patna High Court CR. APP (DB) No.582 of 2021 dt.06-08-2024
11. Learned counsel has relied upon the judgment of the
Hon'ble Supreme Court in the case of Bablu Kumar and Ors. Vs.
State of Bihar and Ors. reported in (2015) 8 SCC 787. It is
submitted that the case of Bablu Kumar (supra) had travelled to
the Hon'ble Supreme Court from a judgment of this very Court
and the Hon'ble Supreme Court has in its judgment deliberated
upon the role of the prosecution and the duty of the Court within
the requisite paradigm of fair trial.
12. Learned counsel submits that the Hon'ble Supreme
Court has referred to series of judgments in which emphasis has
been given on a fair and impartial trial. Some of the judgments
which have been referred to by the Hon'ble Supreme Court in the
case of Bablu Kumar (supra) are the judgments in the case of
Manu Sharma Vs. State (NCT of Delhi) reported in (2010) 6
SCC 1 and Rattiram Vs. State of M.P. reported in (2012) 4 SCC
516. It is submitted that in this case, the informant has been denied
an opportunity of fair trial and grave injustice has been caused to
him and the learned trial court has not taken pain to even verify
from the records as to whether summons have really been issued to
all the witnesses or not.
Patna High Court CR. APP (DB) No.582 of 2021 dt.06-08-2024
Submissions on behalf of the Respondent Nos. 2 to 4
13. On the other hand, Mr. Y. C. Verma, learned Senior
Counsel for the Respondent Nos. 2 to 4 submits that normally
Right to Appeal is provided to the State, therefore, the informant
should not be allowed to usurp the said right of the State. Learned
Senior Counsel has gone on to the extent of submitting that once
the non-bailable warrants were returned unexecuted against some
of the witnesses who were absconding, there was no reason for the
learned trial court to issue process under Sections 82 and 83
Cr.P.C. against them.
Submission on behalf of the State
14. Ms. Shashi Bala Verma, learned Additional PP for
the State having gone through the trial court's records does not
controvert that the records would show issuance of summons at
initial stage to only four witnesses and then non-bailable warrants
to the non-official witnesses. Learned Additional PP, in fact,
admits that so far as the other witnesses are concerned, they were
never summoned.
Consideration
15. Having heard learned counsel for the parties and
learned Additional PP for the State as also upon perusal of the
records of the learned trial court, we find that what have been
Patna High Court CR. APP (DB) No.582 of 2021 dt.06-08-2024
placed before us by the learned counsel for the appellant are
correct. On record, we found one copy of the summons issued to
Ravindra Yadav, Sukhlal Prasad, Gautam Prasad and Manoj
Prasad. Thus, it shows issuance of summons to only four
prosecution witnesses. The office of the learned Judge has,
therefore, rightly recorded in the margin portion that summons
have been issued to four.
16. We have also noticed that despite order of the
learned trial court to issue bailable warrant of arrest against the
prosecution witnesses, no bailable warrant of arrest was issued.
Lastly, the learned court directed for issuance of non-bailable
warrant against the non-official witnesses only. This is evident
from the order dated 29.05.2019.
17. In the kind of materials noticed by us, we have no
iota of doubt that in this case, the learned trial court has not taken
pain to verify from the records as to whether all the prosecution
witnesses have been duly served with the summons. Though, the
learned trial court issued non-bailable warrants against non-official
witnesses but on return of those non-bailable warrants, no further
action was taken in accordance with law to procure the attendance
of the witnesses. The submission of learned Senior Counsel for the
Respondent Nos. 2 to 4 that the power under Sections 82 and 83
Patna High Court CR. APP (DB) No.582 of 2021 dt.06-08-2024
Cr.P.C. are to be exercised only against the accused persons and
not against the witnesses are devoid of merit and the same is liable
to be rejected.
18. Although learned Senior Counsel for the Respondent
Nos. 2 to 4 has placed before us the judgment of the Hon'ble
Supreme Court in the case of Babu Sahebagouda Rudragoudar
and Others Vs. State of Karnataka reported in 2024 SCC
OnLine SC 561 but on the face of it, we find that this judgment
would not be applicable in the present case as the issues involved
in this case are quite different and distinct from those which were
before the Hon'ble Supreme Court in the case of Babu
Sahebagouda Rudragoudar (supra). We, rather, find that the
judgment in the case of Bablu Kumar (supra) is directly on the
point which has been argued before us.
19. This Court is of the opinion that what have been held
by the Hon'ble Supreme Court in the case of Bablu Kumar
(supra) in paragraphs '13', '14', '15' and '18' would be covering
the issues involved in this case, hence, those are being quoted
hereunder for a ready reference:-
"13. In Sunil Kumar Pal v. Phota Sheikh7, the Court
while commenting on the unusual procedure adopted
by the trial court, opined that: (SCC p. 538, para 9)
"9. ... We have no doubt that under these
circumstances the trial could not be regarded as fair
7. (1984) 4 SCC 533 : 1985 SCC (Cri) 18
Patna High Court CR. APP (DB) No.582 of 2021 dt.06-08-2024
and just so far as the prosecution was concerned. The
entire course of events shows that the conduct of the
trial was heavily loaded in favour of Respondents 1 to
9. The trial must in the circumstances be held to be
vitiated and the acquittal of Respondents 1 to 9 as a
result of such trial must be set aside. It is imperative
that in order that people may not lose faith in the
administration of criminal justice, no one should be
allowed to subvert the legal process. No citizen
should go away with the feeling that he could not get
justice from the court because the other side was
socially, economically or politically powerful and
could manipulate the legal process. That would be
subversive of the rule of law."
14. In Bansi Lal v. Laxman Singh8, on the question of
limited revisional jurisdiction under Section 401
CrPC and the duty of the Court, a two-Judge Bench
opined that such a power has to be exercised only in
exceptional cases when there is a glaring defect in the
procedure or there is a manifest error on point of law
and there has consequently been flagrant miscarriage
of justice. A mere circumstance that finding of fact
recorded by the trial court which may be in the
opinion of the High Court is erroneous or incorrect,
would not justify setting aside the order of acquittal
and directing a retrial of the accused.
15. In Satyajit Banerjee v. State of W.B.9, it has been
opined that (SCC p. 121, para 26) direction for retrial
should not be made in all or every case where
acquittal of the accused is for want of adequate or
reliable evidence. It is only when an extraordinary
situation with regard to the first trial is found so as to
treat it as a farce or a "mock trial", direction for retrial
would be justified. The same principle has been
reiterated in Mary Pappa Jebamani v. Ganesan10 .
18. In Rattiram v. State of M.P.13 a three-Judge Bench
has ruled thus : (SCC p. 534, para 39)
"39. ... Fundamentally, a fair and impartial trial has a
sacrosanct purpose. It has a demonstrable object that
the accused should not be prejudiced. A fair trial is
8. (1986) 3 SCC 444 : 1986 SCC (Cri) 342
9. (2005) 1 SCC 115 : 2005 SCC (Cri) 276
10. (2014) 14 SCC 477 : (2015) 1 SCC (Cri) 414 : (2013) 15 Scale 154
13. (2012) 4 SCC 516 : (2012) 2 SCC (Cri) 481
Patna High Court CR. APP (DB) No.582 of 2021 dt.06-08-2024
required to be conducted in such a manner which
would totally ostracise injustice, prejudice, dishonesty
and favouritism."
And again : (SCC p. 542, para 62)
"62. ... Decidedly, there has to be a fair trial and no
miscarriage of justice and under no circumstances,
prejudice should be caused to the accused but, a
pregnant one, every procedural lapse or every
interdict that has been acceded to and not objected at
the appropriate stage would not get the trial dented or
make it unfair. Treating it to be unfair would amount
to an undesirable state of pink of perfection in
procedure. An absolute apple-pie order in carrying out
the adjective law, would only be sound and fury
signifying nothing."
20. In ultimate analysis, we find that the impugned
judgment of acquittal recorded by the learned trial court is
perverse and is liable to be set aside. We, accordingly, set aside the
impugned judgment and direct the learned trial court to proceed
with the trial afresh in accordance with law from the stage of
prosecution evidence.
21. This appeal is allowed.
(Rajeev Ranjan Prasad, J)
( Shailendra Singh, J)
lekhi/-
AFR/NAFR
CAV DATE
Uploading Date 08.08.2024
Transmission Date 08.08.2024
