Ashok Kumar vs State Of Uttarakhand & Another
2021 Latest Caselaw 124 UK

      IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

              Criminal Revision No.173 of 2019


Ashok Kumar                                     ...........Revisionist

                                Versus


State of Uttarakhand & Another                  .........Respondents

Mr. Ram Prasad, Advocate for the revisionist.
Mr. S.T. Bhardwaj, Deputy Advocate General for the State.


Hon'ble Lok Pal Singh, J.

The present Criminal Revision under Section 397 read with Section 401 of Cr.P.C. is directed against the judgment and order dated 02.03.2019 passed by the learned First Additional Sessions Judge, Dehradun in Session Trial No.124 of 2018 titled as State vs. Ashok Kumar, whereby, the learned Trial Court has rejected the application for discharge.

2. Facts leading to the present case are that the First Information Report was lodged against Ajay Malik, Mohar Ram, Subhash & Shambhu Nath Prasad on 30.03.2017 in Case Crime No.94/17, State vs. Sambhu Prasad and three others, under Sections 343 & 370 IPC at Thana Raipur, District Dehradun, with the assertion that the complainant is the resident of Village Turialga, Thana Pharsavahar, District Jaspur, Chhattisgarh. Her neighbourer Subhash and Mohar Ram brought to her in Delhi in the year 2009 for providing employment to her. Thereafter, they handed over the complainant to one

Sambhu Prasad whose office was situated at Shakurpur (Delhi) near Britania Chawk, who forcibly sent her for household works in different places, but did not pay single penny to her. On demand of money, he committed mar-peet with her. On 16.10.2016, he handed over her to one Ajay Malik. She was dropped in the house of Ajay Malik by two persons belonging to Shambhu. In the house of Ajay Malik, his wife and two children used to reside. They took forcibly household works from her. When she requests that she may be permitted to go her house then Ajay Malik did mar-peet with her and states that she has been purchased from Shambhu. On last Sunday, about one week ago, Ajay Malik locked her in the house. A key of the house is with the friend of Ashok Kumar. He everyday had come to give water but again he kept lock her. Ajay Malik had given a mobile to her and called her on the mobile. When she was inside the house then she made a call to the police by dialing 100 number then police reached there and the lock was open and she was brought to the Police Station. The statement of the complainant was recorded by the Judicial Magistrate, Ist Class, Dehradun on 30.03.2017. In her statement recorded under Section 164 of Cr.P.C., she did not make any allegations against the present applicant. The Investigating Officer submitted the charge-sheet against one Shambhu Nath Prasad. The Special Judge took cognizance in the matter on 12.07.2016. The supplementary charge-sheet was submitted on 31.10.2017 against Ajay Malik, Mohar Ram & Subhash Kumar.

3. The learned Chief Judicial Magistrate took cognizance against the accused persons for the offences punishable under Sections 343, 370, 376 & 120B of IPC. The Investigating Officer submitted the supplementary charge-sheet against the revisionist for the offences punishable under Sections 343 and 120(B) of IPC. The revisionist moved an application saying that he was working as Scientist in the Department of Defence, Dehradun. He was on his duty on 26.03.2017. At about 8:00 A.M., his neighbour Ajay Malik called him that he is out of the station for some personal work and the key of his house is with the security guard Anil Kumar who will hand over the key to him. On 26.03.2017, the key was handed over by Anil Kumar to him. On 29.03.2017 at about 3:00 P.M. when he was on his duty, Ajay Malik called him that the police has reached to his house. Therefore, he may open the lock then he went to his house and open the lock of his house as per the direction of Ajay Malik. The maid servant of Ajay Malik was in the house. In the presence of police, police asked her where she resides and slips then the maid servant took the police with her to the servant quarter which have two rooms, one room opened from one entry from the outside and another entry from the gallery of Ajay Malik's house. Thereafter, the maid servant of Ajay Malik was taken by the police and also taken the key of Ajay Malik's house.

4. A First Information Report was lodged against the named persons, namely, Ajay Malik, Mohar Ram, Shambhu Nath Prasad & Subhash and

thereafter the statement of the complainant was also recorded under Sections 161 and 164 of Cr.P.C. but nowhere, she made any allegations against the revisionist.

5. On perusal of the record, it would depict that nowhere the complainant made allegations against the applicant. There was no occasion for the Investigating Officer not to investigate the matter against the applicant when the first and the supplementary charge-sheet were filed. It has not come on record that the revisionist wrongfully confined the complainant for three days and more, nowhere, in the charge-sheet has come that revisionist had any conspiracy in other offence. There is no whisper in the FIR or in the charge-sheet that the revisionist has trafficated the applicant. Sections 343 & 120(B) of IPC are extracted as under:-

"343. Wrongful confinement for three or more days:- Whoever wrongfully confines any person for three days, or more, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

120B. Punishment of criminal conspiracy:-(1) Whoever is a party to a criminal conspiracy to commit an offence punishable with dealt, [imprisonment for life] or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.

(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description

for a term not exceeding six months, or with fine or with both."

6. On perusal of the material brought on record, it would depict that there is no whisper on record that the revisionist has wrongfully confined the applicant. Neither in the FIR nor in the statement under Section 161 and 164 Cr.P.C., but best reason known to the Investigating Officer who submitted the charge-sheet under Sections 343 and 120 (B) of IPC, wherefore, no allegations of conspiracy have been levelled against the revisionist. Since no material is available on record to frame the charges against the revisionist under Sections 343 and 120 (B) of IPC.

7. The learned Magistrate did not consider the aspect of the matter that where the complainant was resided in the house of Ajay Malik which has two entries, one entry the lock was put and another entry was free. Upon consideration of the record of the case and the document submitted therewith as there is no sufficient ground for proceeding against the accused. The revisionist was liable to be discharged under Section 227 of Cr.P.C. which is quoted hereunder:-

"227. Discharge- If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing."

8. The purpose of enactment of Section 227 of Cr.P.C. is to ensure that if the Court is satisfied that

there is no material available on record which suggests that the accused has not committed the offence. The Court shall discharge the accused and record its reasons for so doing.

9. On perusal of the impugned order, it would reveal that the learned Additional Sessions Judge has rejected the application filed by the application of discharge under Section 227 of the Cr.P.C. On perusal of the order impugned would reveal that the learned Sessions Judge, merely on the ground that the charge-sheet has been submitted against the revisionist under Sections 343 and 120(B) of IPC and without looking to the material evidence available on record in a cryptic manner has rejected the application under Section 227 of the Cr.P.C. No reason has been assigned by the learned Revisional Court as to whether any prima facie evidence is available on record to frame the charges against the accused.

10. It is apt to note here that the first charge- sheet was submitted by the Investigating Officer against Shambhu Nath Prasad on 09.07.2017 and cognizance was taken on 12.07.2017. Another charge-sheet was submitted on 31.10.2017 against Ajay Malik, Mohar Ram and Subhash and the cognizance was taken on 02.11.2017. Third charge- sheet was submitted against the revisionist on 22.12.2017 and the cognizance was taken on 31.01.2018. The revisionist is a Scientist posted in Ministry of Defence at Dehradun and has no criminal incident. Since, no allegations have been made

against the revisionist in the First Information Report, in the statement recorded under Sections 161 and 164 of Cr.P.C., the learned Sessions Judge did not consider the material available on record and committed illegality in rejecting the application.

11. The learned Sessions Judge failed to discharge its legal obligation that when no evidence is available and mere submission of charge-sheet is not sufficient to prosecute a person. The parliament in its wisdom has enacted the Section 227 of the Cr.P.C. to avoid the frivolous litigation/prosecution against an innocent person. Keeping in view, the object and purpose of enactment of Section 227 of Cr.P.C. and having considered the fact that nothing has been brought on record which suggests that prima facie case for the offences punishable under Sections 343 and 129(B) of IPC is made out against the applicant. The non discharge of the accused for the offences punishable under Sections 343 and 120(B) of IPC and, continuation of the trial on the basis of no evidence would be a futile exercise.

12. Having considered the material brought on record, this Court is of the firm view that no prima facie evidence is available on record to frame the charge under Sections 343 and 120(B) of IPC against the revisionist and also having considered the submissions of learned counsel for the parties and on perusal of the material available on record, this Court finds that prima facie no evidence is available on record to frame the charge under Sections 343 and 120 (B) of IPC against the revisionist. Since no

evidence is available against the revisionist and the case as projected against the accused, the impugned order dated 02.03.2019 is liable to be quashed. The application filed under Section 227 of the Cr.P.C. is allowed. The further proceedings of S.T. No.124 of 2018, State vs. Ashok and others, pending in the Court of First Additional Sessions Judge, Dehradun, qua the revisionist are hereby quashed.

13. However, it is made clear that the Sessions Trial against the named persons, namely, Ajay Malik, Mohar Ram, Shambhu Nath Prasad & Subhash shall continue.

14. Accordingly, the present Criminal Revision is allowed.

(Lok Pal Singh, J.) 12.01.2021 Ravi