Allowed

Sri Ram Twiary v. the State of Jharkhand

Jharkhand HC21 Jul 2023Cr.Rev./374/2018

Case brief

AI extract

What is this about?

The High Court allowed a criminal revision application, quashing premature charges framed against petitioners who were not named in the FIR or identified by witnesses. The court held that reliance on supervision notes without investigation or identification was legally unsustainable, granting discharge.

What did the court decide?

Impugned orders dated 05.12.2017 and 02.12.2019 quashed; petitioners, Sri Ram Twiary and Shashi Shekhar Jha, discharged.

Sri Ram Twiary Vs the State of Jharkhand — Criminal Trial and Appeal | Jharkhand HC (2023)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI Criminal Revision No. 374 of 2018

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1.Sri Ram Twiary @ Sri Ram Tiwary

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2.Shashi Shekhar Jha @ Shashi Shekhar Jha

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..… Petitioners

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Versus

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1.State of Jharkhand

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2.Sushil Kumar Mohanty

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….. Opp. Party

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CORAM: HON'BLE MR. JUSTICE SANJAY PRASAD

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For the Petitioners : Mr. Amit Kumar Das, Advocate

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Mr. Sahay Gaurav Piyush, Advocate For the State : Mr. Ravi Prakash, A.P.P. For the O.P.No.2 : None

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ORAL ORDER IN COURT

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15/21.07.2023 Initially, this criminal revision application has been preferred on behalf of the petitioners challenging the order dated 05.12.2017 passed by the learned Judicial Magistrate, 1^st Class, Jamshedpur in G.R. Case No.1572 of 2012, (Golmuri P.S. Case No. 119 of 2012), by which the discharge petition filed under Section 239 Cr.P.C. on behalf of the petitioners has been rejected.

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2. However, the learned counsel for the petitioners has amended earlier prayer and prayed for quashing/setting aside the order dated 02.12.2019 passed by the learned Judicial Magistrate, Jamshedpur in Golmori P.S. Case No. 119 of 2012, dated 08.06.2012, corresponding to G.R. Case No. 1572 of 2012, by which charges have been framed against the petitioners for the offences punishable

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under Section 323, 324, 427, 341 of the I.P.C. and 30 of the Arms Act, now pending in the court of Sri Aditya, learned Judicial Magistrate, Ist Class, Jamshedpur.

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3. The prosecution case, in brief, is that on 08.6.2012 while the informant was taking tea at the gate of TISCO at Kalimati, then around 10-12 security guards of Tisco came there and turtled down the Thela (Wooden Cart) of the shop keepers, namely Mithilesh Sao, Amit Prasad, Bharat Sharma and Pappu Sao and when the informant and one Sanjay Paswan and another person objected, then the Security Guards of Tisco started assaulting them with Lathi and Dunda (sticks) and started firing due to which the informant sustained injury by the splinters of bullet. Thereafter, written report was submitted.

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4. Heard Mr. Amit Kumar Das, learned counsel appearing on behalf of the petitioners, assisted by Mr. Sahay Gaurav Piyush, learned counsel and Mr. Ravi Prakash, learned A.P.P., however, none appears on behalf of the O.P. No. 2 even today.

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5. It appears that although the Notice was issued upon O.P. No. 2, i.e. the informant, vide order dated 08.9.2022 passed by this Court, but the O.P. No. 2 did not appear on 21.10.2022, 24.11.2022, 16.01.2023, 24.02.2023 and 15.03.2023 also and as such this case is being heard and disposed of today. 6. The learned counsel for the petitioners has amended the prayer and the present case was fixed for argument and final disposal.

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7. Learned counsel for the petitioners has submitted that the impugned order dated 05.12.2017 passed by the learned court below is arbitrary and not sustainable in the eye of law. It is further submitted that the impugned order dated 02.12.2019 passed by the learned Judicial Magistrate, Jamshedpur in Golmori P.S. Case No. 119 of 2012, corresponding to G.R. Case No. 1572 of 2012, by which charges were framed against the petitioners under Section 323, 324, 427, 341 of the I.P.C. and 30 of the Arms Act is illegal and not sustainable in the eye of law. It is submitted that the petitioners are not named in the F.I.R., however, police under the influence of the Superintendent of Police and Dy. Superintendent of Police has submitted chargesheet against the petitioners for the offence under Sections 147, 148, 149, 341, 427 I.P.C. and Section 30 of the Arms Act. 8. It is submitted that on one hand there is allegation of firing as per the F.I.R., whereas the Para 18 of the case diary reveals that simple injuries were found on the person of the informant and injured Sanjay Paswan and no injury of bullets or splinters were found on the person of the informant and the injured Sanjay Paswan. It is further submitted that Para 24 of the case diary reveals that the informant has not identified any Security Guard of the TISCO. It is further submitted that the names of the petitioners, surprisingly, for the first time, appeared in Para 40 of the Supervision Note of the Dy.S.P. It is further submitted that the as per Para 45 of the case diary,

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the informant and injured Sanjay Paswan and other eye witnesses have stated that they could not identify the Security Guards of the TISCO. However, police has submitted chargesheet against the petitioners for the offence under Section 147, 148, 149, 341, 427 I.P.C. and Section 30 of the Arms Act on the basis of supervision note of the Superintendent of Police and and Dy. Superintendent of Police and therefore, the impugned order suffers from infirmity and may not be sustained in the eye of law on the basis of the statement of informant-Sumol Kumar Mohanty, prosecution witness Mithilesh Sao and the injured Sanjay Paswan and hence the same may be set aside and this Criminal Revision may be allowed.

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9. On the other hand, learned Special P.P. has submitted that the impugned order passed by the court below are fit and proper and no interference is required from this Court. It is submitted that though the petitioners are not named in the F.I.R. but the informant has named them in his subsequent statement, which is mentioned at para 2 of the case diary. The Deputy Superintendent of Police and the Superintended of Police had also named the petitioners in supervision note, hence no illegality has been committed by the police in filing chargesheet against these petitioners. It is further submitted that the injury was found on the person of the injured eyewitnesses and hence the impugned order requires no interference.

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10. Perused the record and have heard learned counsel for both sides.

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11. It transpires that both the petitioners are not named in the F.I.R, however, police has submitted chargesheet against them for the offence under Section 147, 148, 149, 341, 427 of the I.P.C. and Section 30 of the Arms Act.

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12. It appears that earlier the petitioners had preferred Criminal Revision application No. 242 of 2014 before this court challenging the order dated 11.02.2014 passed by Sri Nirupam Kumar, then Judicial Magistrate, 1^st Class, Jamshedpur in G.R. No. 1572 of 2012 by which discharge petition filed by the petitioners was rejected and the then Co-ordinate Bench of this Court (Mr. Justice H.C. Mishra), vide order dated 02.5.2014, passed in Criminal Revision No. 242/2014 has set aside the order rejecting the discharge petition and directed the court below to pass an order afresh, discussing the materials available in the case diary against the petitioners.

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13. It further appears that after the order of remand was passed by the Co-ordinate Bench of this Court, the petitioners had again filed discharge petition before the learned court below, which was rejected vide order dated 22.9.2014 by Sri Nirupam Kumar, Judicial Magistrate, Ist Class, Jamshedpur. However, the petitioners had filed Cr.Rev.No. 223 of 2014 before the learned Additional Sessions Judge-V, Jamshedpur and the said Cr. Revision No. 233 of 2014

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was allowed by the then learned Additional District & Sessions Judge - V, East Singhbhum, Jamshedpur by setting aside the order dated 22.09.2014 and the learned Additional Sessions Judge-V, East Singhbhum, Jamshedpur had remitted the case again back to the trial court to pass a fresh order on discussing the entire materials available in the case diary. 14. However, after remand of the case by learned Additional Sessions Judge-V, East Singhbhum, Jamshedpur, the impugned order dated 05.12.2017 and 02.12.2019 has been passed by the learned Judicial Magistrate, Ist Class, Jamshedpur by rejecting the discharge petition and later on framing charge against the petitioners.

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15. It transpires that the Judicial Magistrate, 1^st Class, at Jamshedpur has considered the contents of Paragraph 14, 15 and 16 and 33 of the case diary and has observed that as per Paragraph 14 the chargesheeted witness as well as the eye witness, namely Subhash Chandra Pandey had stated that security guard turtled down the wooden cart and when crowd gathered then they fired to remove the crowd. The Judicial Magistrate further observed that as per Para 15 of the case diary, the prosecution witness Saheb Mahto stated in his statement recorded u/s 161 Cr.P.C. that security guards started breaking shops and number of security guards were 10 to 12. The Judicial Magistrate further observed that as per Paragraph 16 of the case diary, the prosecution

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witness Mithilesh Sao stated in his statement recorded u/s 161 Cr.P.C. that he was standing there and saw the occurrence and 40 to 50 persons came from the Basti of Sidho Kanho and started pelting stones then security guards came from inside and started firing in the air and the crowd moved. The learned Judicial Magistrate has observed that except for the informant, who had taken the name of Petitioner No. 1, no other chargesheeted witness has taken the name of the petitioners. The learned Judicial Magistrate has further observed that all the witnesses consistently supported the said occurrence and stated that the security guards turtled down the wooden cart and breaking the shop. The learned Magistrate has also observed that admittedly Petitioner No. 2-Shashi Shekhar Jha is the Security Inspector of TATA Steel and as per paragraph 33 of the case diary, all the witnesses supported that there were 10 to 12 Security guards.

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However, from the observations of the learned Judicial Magistrate, it appears that except for the informant, no other witness had stated that the petitioners were amongst the persons involved in the occurrence.

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16. It is well settled from the judgment reported in the case of M.E. Shivalingamurthy Vs. C.B.I., Bengaluru reported in 2020 (2) SCC 768 that at the time of passing of the order on discharge petition, the court below is bound to look into the documents provided by the prosecution.

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17. It appears from the Para 2 of the case diary that in subsequent statement of the informant and as per Para 45 of the case diary, supervision note of Dy.S.P. and Sr.S.P. have not stated anything about committing any overt act against the petitioners.

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18. It is well settled that supervision note cannot be considered for making any person in the column of accused without any investigation.

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19. From perusal of Paragraph 24 of the case diary, it would appear that the informant Sumol Kr. Mohanti has informed the police about the petitioners but he has stated that he could not identify any person and even the people of that locality could not disclose the name of any person involved in the occurrence.

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20. Paragraph 14, 15 and 16 contain the statements of the witnesses, namely Subhash Chandra Pandey, Saheb Mahato and Mithilesh Sao respectively, who have also stated that around 10 to 12 security personnel were involved in the occurrence and they have tried to turtle down the wooden carts and damage the shops of some persons near Tisco Gate, but they have not named the petitioners.

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21. Paragraph 18 of the Case diary reveals that the injury sustained by the informant Sumol Kumar Mohanty and injured Sanjay Paswan were simple in nature and no injury of gun-shot was found by the Doctor.

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22. Even Paragraph 40, which is the supervision note of the Dy.S.P. shows that he has merely stated that the allegation against the petitioners and 10 to 12 other persons appears to be true, but also observed that as per the doctor attending the informant and the injured witness Sanjay Paswan, the injury has not been caused by the splinters of bullet, rather it was caused by a blunt substance.

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Paragraph 45 of the Case Diary reveals that apart from the informant and the injured witness, two other persons, namely Subhash Chandra Pandeya and Mithilesh Sao have also stated that they could not identify the security guards who have committed these offences.

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23. Thus, in absence of any specific overt act by the petitioners and in absence of identification of these petitioners, it would appear that the police has committed error by submitting chargesheet against the petitioners for the offence under Section 147, 148, 149, 341, 427 I.P.C. and Section 30 of the Arms Act though neither the live cartridge or anything like bullet was found.

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24. Considering the substance of allegation, order dated 05.12.2017 passed by the learned

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Judicial Magistrate, 1^st Class, Jamshedpur in G.R. Case No.1572 of 2012,(Golmuri P.S.Case No.119 of 2012) and consequent order, i.e. order dated 02.12.2019 passed by the learned Judicial Magistrate, Jamshedpur in Golmori P.S. Case No. 119 of 2012 are quashed and the petitioners, namely Sri Ram Twiary @ Sri Ram Tiwary and Shashi Shekhar Jha @ Shashi Shekhar are discharged. 25. Thus, this Criminal Revision is allowed.

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(Sanjay Prasad, J.)

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s.m.

Sri Ram Twiary v. the State of Jharkhand

Case brief

What is this about?

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Sri Ram Twiary v. the State of Jharkhand

Case brief

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What did the court decide?

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