Full Judgment
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Rev. No. 1025 of 2015 -- Sanjay Singh .... Petitioner Versus 1. The State of Jharkhand 2. Kameshwar Prasad Singh … Opposite Parties --- CORAM: HON’BLE MR. JUSTICE RONGON MUKHOPADHYAY --- For the Petitioner : Mr. Mahesh Tewari, Advocate For the State : Mr. Abhay Kumar Tiwari, Advocate For the O.P. No. 2 : Mr. Niranjan Singh, Advocate & Mr. Om Prakash Singh, Advocate --- Order No. 14 Dated 05th December, 2017 Heard Mr. Mahesh Tewari, learned counsel for the petitioner, Mr. Abhay Kumar Tiwari, learned APP for the State and Mr. Niranjan Singh, learned counsel for the opposite party No.
2. This application is directed against the order dated 05.08.2015 passed by learned Additional Sessions Judge-II, F.T.C., Bermo at Tenughat in Session Trial Case No. 100 of 2015, whereby and whereunder, the discharge application preferred by the petitioner, has been rejected. It has been stated by Mr. Mahesh Tewari, learned counsel for the petitioner that the victim had accidentally fallen down from the terrace of the third floor which resulted in multiple fracture injury on her hand, leg and waist. It has also been stated that the petitioner had got her admitted in K.M. Memorial Hospital, Chas and seeing her condition an air ambulance was arranged for carrying her from Bokaro to Kolkata and she was admitted to Apollo Hospital, Kolkata , where she was medically treated and the entire expenses were borne by the petitioner. Learned counsel further submits that after investigation charge-sheet u/ s 498A I.P.C. and 3/4 of the D.P. Act was submitted but cognizance was taken u/s 498A/307 I.P.C. and 3/4 of the D.P. Act without there being any protest petition filed by the informant. It has also been submitted that no application was filed by the Investigating Officer for recording the statement of the victim u/s 164 Cr.P.C. and she had herself approached the Court to record her statement u/s 164 Cr.P.C. It has further been submitted that for the incident of 28.08.2013, F.I.R. was lodged on 13.08.2014 by the opposite party No. 2 in which aspersions were made against the petitioner of pushing the victim from 2. the terrace of the third floor. It has come to light that the expenses were borne by the petitioner as several witnesses have stated to that effect apart from documentary evidence produced on behalf of the petitioner. Learned counsel has further submitted that throughout her treatment at various hospitals and then Apollo Hospital at Kolkata, the victim had never stated either before her parents or before the police with respect to the act of the petitioner which resulted in her suffering multiple injuries. It has also been submitted that the statement of victim recorded u/s 164 Cr.P.C. being an afterthought cannot be looked into and therefore the no case u/s 307 I.P.C. having been made out, the petitioner should have been discharged by the learned trial court. Mr. Niranjan Singh, learned counsel appearing for opposite party No. 2 has referred to para-97 of the case diary and has stated that the requisition was submitted by the Investigating Officer for getting the victim examined u/s 164 Cr.P.C. and pursuant to the same the victim was examined u/s 164 Cr.P.C. It has further been submitted that since the police were favouring the petitioner, application was made before the Director General of Police, Jharkhand. It has also been stated that the purported statement of the victim recorded by the police was never attested. However it was also not stated as to whether the victim was in a stable condition so as to give her statement or not. Learned counsel submits that at the behest of the police, the victim was examined u/s 164 Cr.P.C. in which she has made categoric statement that the petitioner wanted to do away with her life, as he wanted to marry some alien lady, as a result she was pushed from terrace. It has also been submitted that the impugned orders does contain justifiable reasons so as to frame charge u/s 307 I.P.C. apart from Section 498A of the I.P.C. It has thus been submitted that the present application is liable to be dismissed. Mr. Abhay Kumar Tiwari, learned APP has also supported the impugned order based on the materials collected in course of investigation. Mr. Mahesh Tewari, learned counsel for the petitioner in course of his argument referred to a judgment passed in the case of Jogendra Nahak & others v. State Orissa & others reported in AIR 1999 SC2565in support of his contention that the victim could not be straightaway examined u/s 164 Cr.P.C. without there being any requisition by the Investigating Officer to get her examined u/s 164 Cr.P.C. Even if it is 3. assumed that the victim has been examined u/s 164 Cr.P.C. without there being any requisition made by the Investigating Officer, the said statement recorded u/s 164 Cr.P.C. cannot be brushed aside only on that count. In the case under reference the facts are totally different which led the Hon'ble Supreme Curt to hold thus:-
"23. If a Magistrate has power to record statement of any person under Section 164 of the Code, even without the investigating officer moving for it, then there is no good reason to limit the power to exceptional cases. We are unable to draw up a dividing line between witnesses whose statements are liable to be recorded by the Magistrate on being approached for that purpose and those not to be recorded. The contention that there may be instances, when the investigating officer would be disinclined to record statements of willing witnesses and therefore such witnesses must have a remedy to have their version regarding a case put on record, is no answer to the question whether any intending witness can straightaway approach a Magistrate for recording his statement u/s 164 of the Code. Even for such witnesses provisions are available in law, e.g. the accused can cite them as defence witnesses during trial or the court can be requested to summon them u/s 311 of the Code. When such remedies are available to witnesses (who may be sidelined by the investigating officers) we do not find any special reason why the Magistrate should be burdened with the additional task of recording the statements of all and sundry who may knock at the door of the court with a request to record their statements under Section 164 of the Code." It has been specifically noted in the aforementioned paragraph in the case under reference that the Court should not be burdened with the additional task of recording the statements of all and sundry who may knock at the door of the court with a request to record their statements under Section 164 of the Code. The author of the statement u/s 164 Cr.P.C. is the victim who was purportedly at the receiving end of the torture and assault. Her position obviously is of a paramount importance in the context of the allegation made in the present case and therefore the judgment cited by the learned counsel for the petitioner is easily distinguishable.
4. Coming back to the factual aspects of the case, it appears that the allegation although at the initial stage was with respect to commission of torture upon the victim on 03.08.2014 and her subsequent ouster from the matrimonial home on 12.08.2014, but in view of the statement of the victim recorded u/s 164 Cr.P.C. the initial narration made by the opposite party No. 2 in the F.I.R. somehow got more complex. The victim had stated about an occurrence which had taken place on 28.04.2013 in which she was pushed from the terrace and as a result of which she had suffered multiple injuries and she was treated at various hospitals including Apollo Hospital at Kolkata. The 164 Cr.P.C. statement therefore seems to have assumed considerable significance as it appears that consideration has been made by the learned court below with respect to the said statement while refusing the petitioner to discharge him u/s 307 I.P.C. It has been noted by the learned trial court about the statement of some of the witnesses who have narrated about the medical expenses incurred by the petitioner as also with respect to certain documents produced by the petitioner at the time of hearing of the discharge application to substantiate the said contention but merely by stating that the subsequent conduct of the accused at time of framing of charge does not matter, the court has proceeded to reject the discharge application with an observation that there is sufficient material to frame the charge u/ s 307 I.P.C. So far as the Section 498A is concerned, there does not appear to be any doubt with respect to participation of the petitioner in committing assault upon the victim but as regards Section 307 I.P.C. is concerned, as has been rightly noted above, Section 164 Cr.P.C. statement of the victim was the main reason which resulted in the court below taking cognizance u/s 307 I.P.C. and also rejecting the discharge application preferred by the petitioner. At this juncture, learned counsel for the opposite party No. 2 has referred to certain judgments to substantiate his contention that the scope and inference by the revisional court is very limited and the only object of the revision is set at right a patent defect or an error of jurisdiction of law or propriety, but the judgments so referred are easily distinguishable considering the peculiar facts and circumstances of the case. It is no doubt true that strong prima facie evidence against an accused can preempt the court not to interfere in an order by which the 5. discharge application has been rejected. However, it is also to be stated that if there is a manifest error or illegality in the impugned order, the Court does have power to exercise its jurisdiction to interfere in the order refusing discharge. The impugned order dated 05.08.2015 has although given sufficient reasons with respect to existence of an offence u/s 498A of the I.P.C. but so far as refusal to discharge the petitioner for the offence u/s 307 I.P.C. is concerned, the finding which has been recorded seems to be contradictory inasmuch as although it has been noted by the learned trial court that certain paragraphs of the case diary shows the evidence with respect to the medical treatment meted out to the informant by the petitioner, which fact has been supported by documentary evidence also, but the subsequent conduct of the petitioner as stated does point to the fact that proper consideration has not been made to the factual aspect of the case. Learned trial court seems to have been weighed down by the evidence of the prosecution with respect to the statement recorded u/s 164 Cr.P.C. while brushing aside the materials collected by the Investigating Officer in course of investigation. Thus in view of what has been stated above, while affirming the order dated 05.08.2015 so far as rejecting the discharge application for the offence u/s 498A I.P.C. is concerned, the impugned order as regards the refusal of the learned trial court to discharge the petitioner u/s 307 I.P.C. is concerned, is hereby set aside and the matter is remanded back to the learned Additional Sessions Judge-II, F.T.C., Bermo at Tenughat to pass a fresh order in accordance with law after hearing the respective parties and making proper consideration of the submissions advanced by the respective parties. The aforesaid exercise should be concluded within a period of four weeks from the date of receipt/ production of a copy of this order. This application stands disposed of. (Rongon Mukhopadhyay, J) MK