Hira Lal Yadav Vs. State of Jharkhand - Court Judgment

Excerpt:
- constitution of india. articles 12 & 226: [m. karpaga vinayagam, c.j., narendra nath tiwari & d.p.singh, jj] writ petition - maintainability - whether state co-operative milk producers federation ltd., is a state within meaning of article 12 ? - held, from perusal of relevant rules of byelaws, it is clear that state government has no role to play either in policy decision for raising funds for federation or its expenditure and thus have no financial control. further there is nothing to indicate that government has any functional and administrative control over federation. state government has no role to play in matter of appointment of any of officials of federation including managing director. federation is totally independent in all respects and in no way subservient to state government in conduct of its business. federation in no way can be termed as agency of state government and does not come within meaning of article 12 of constitution. writ petitions against federation is not maintainable. - 9. now it is a settled law that :the section 164 is intended to take care of confessional as well as non-confessional statement. state of orissa, reported in 1999 (3) east cr c 264 (sc) :air 1999 sc 2565 :1999 cri lj 3976, while dealing with section 164, the supreme court while held that 'no person can straightaway 'go to a magistrate and require him to record a statement which he proposes to make',further held as follows :if a magistrate has power to recorded 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.orders.j. mukhopadhaya, j.1. this revision application has been preferred by the petitioner against the order dated 17th august, 2002 passed by the learned additional district and sessions judge, jamtara in sessions trial no. 270 of 2001, whereby and whereunder, the petition for discharge filed by the petitioner under section 227 of cr pc has been rejected.2. the case of prosecution as per fardbeyan of shiv chandra prasad (deceased) recorded by asi, of mihijam police station of 9th march, 1992 at 8 a.m. is that while he had gone to his sand ghat at 6 am for measuring and loading sand on truck, rejendra yadav, ganesh yadav along with unknown person, whom the informant can identify, came with weapons rajendra yadav came along with bltala and asked about the lease papers upon which the informant replied that the documents will be shown to the officers. thereafter, rajendra yadav assaulted the informant causing grievous injuries at various places ganesh yadav also assaulted the informant on his head by farsa causing bleeding injury.it was further stated that one unknown person also assaulted him by iron rod and rajendra yadav took rs. 500/- from his pocket. the occurrence is said to have been witnessed by the driver of truck no. 7869 who was present in the sand ghat.further case of the petitioner is that the fardbeyan was read over and understood by the informant (since deceased) in presence of petitioner, hira lal yadav and lti of informant was taken. the informant could not put his signature of fardbeyan because of pain.3. during the investigation, the statement of ram bali sah, father of deceased. shyam sunder prasad, brother-in-law of deceased, negeshwar prasad and hira lal yadav (petilioner), under section 164, cr pc was recorded on 8rh april, 1992.4. the grievance of the petitioner is that two strangers, namely, subhash das and ram narayan yadav approached the magistrate through private lawyer to record their statement under section 164. it was allowed by the magistrate and the statement of subhash das, ram narayan yadav two strangers were recorded on 24th april, 1992. in their statement, they tried to mislead the court by saying that hira lal yadav (petitioner herein) and his associates have assaulted the deceased.it was submitted that the .two strangers, namely, subhash das and ram narayan yadav had been set up by the accused persons to demolish the case by disturbing the main prosecution witness le. hira lal yadav (petitioner). both the father and brother of the deceased have full faith upon the petition, hira lal yadav and they have not stated anything against him.5. the police after investigation filed first charge-sheet against rajendra yadav and ganesh yadav, vide charge-sheet no. 27/92 dated 13th june, 2002. the investigation was, kept pending, wherein after the second charge-sheet was submitted vide charge-sheet no. 42/92 dated 25th august, 1992, whereby the charge-sheet against rajendra yadav and ganesh yadav was confirmed and a final form was submitted against suresh yadav and umesh yadav. charge-sheet was submitted against one unknown person under section 302 of ipc.6. learned acjm, jamtara took cognizance of,the offence against rajendra yadav and ganesh yadav on 15th june, 1992. cognizance of the offence was also taken against suresh yadav and umesh yadav on 16th september, 1992. subsequently, cognizance of offence was also taken against the petitioner (hira lal yadav) on 6th march, 1993.against the order of cognizance dated 6th march, 1993,- petitioner (hira lal yadav) and father of the deceased ram bali sah preferred applications for quashing vide criminal misc, nos. 3402 of 1993 and 5371 of 1995 before the patna high court, but they were dismissed.the petitioner filed a petition under section 227, cr pc before the court of learned sessions judge, jamtara for his discharge from the case, which was dismissed by the learned sessions judge, jamtara vide order dated 5th may, 2001. against the said order, the petitioner preferred criminal revision no. 213 of 2001 before the court. it was disposed of by this court vide order dated 17th october, 2001. the court observed and directed that at the state of framing of charge, the petitioner shall raise all the pleas available to him. the petitioner was given liberty to agitate in the trial court that in the facts and circumstances of the case and the materials available on record, it do not warrant framing of charge against him. the objection raised by the learned app that the second revision application is not maintainable, cannot be accepted as the petitioner was given liberty to agitate in the trial court that in the facts and circumstances of the case and materials available on record, it do not warrant framing of the charge against him. the trial court having rejected the petitioner's plea for discharge vide subsequent order dated 17th august, 2002, this revision application is maintainable against the said order.7. counsel for the petitioner made the following submissions to assail the impugned order dated 17th august, 2002 passed in sessions case no. 270 of 2001.(i) the statement given by two strangers, namely, subhash das and ram narayan yadav before the learned magistrate cannot be termed as a statement under section 164. cr pc. such statement cannot be looked into for framing the charge against the petitioner not being a part of fir, case diary or statement under section 161, cr pc.(ii) there is nothing on the record to make out a prima facie ground to frame charge. the petitioner has neither been named in the fir nor any person named the petitioner while made statement under section 161, cr pc.8. admittedly, the informant has not named subhash das or ram narayan yadav in his fardbeyan. none of them le. subhash da's or ram narayan yadav has given any statement under section 161, cr pc. their names do not find place in the case diary also.it is also not in dispute that subhash das and/or ram narayan yadav were not produced by police before the court of magistrate for taking their statement under section 164. they appear to have approached the court of learned magistrate through private lawyer for recording their statement under section 164, cr pc.from the records of the case, it is evident that subhash das and ram narayan yadav are two strangers to the case in question.9. now it is a settled law that : the section 164 is intended to take care of confessional as well as non-confessional statement. the confession could be made only by one who is either an accused or suspected to be an accused of a crime. sub-sections (2), (3} and (4) are intended to cover confessions alone, de hors non-functional statement, whereas sub-section (5) is intended to cover such statements.10. in the case of jogendra nahak v. state of orissa, reported in 1999 (3) east cr c 264 (sc) : air 1999 sc 2565 : 1999 cri lj 3976, while dealing with section 164, the supreme court while held that 'no person can straightaway 'go to a magistrate and require him to record a statement which he proposes to make', further held as follows :-'if a magistrate has power to recorded 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 the 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 under section 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 under section 311 of the code. when such remedies are available to witnesses (who may be sidelined by the investigating officer) 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.23. on the other hand, if door is opened to such persons to get in and if the magistrates are put under the obligation to record their statements, then too many persons sponsored by culprits might through before the portals of the magistrate courts for the purpose of creating record in advance for the purpose of helping the culprits. in the present case, one of the arguments advanced by accused for grant of bail to them was based on the statements of the four appellants recorded by the magistrate under section 164 of the code. it is not part of the investigation to open up such a vista nor can such step be deemed neccssaiy for the administration of justice.24. thus, on a consideration of1 various aspects, we are disinclined to interpret section 164(1) of the code as empowering a magistrate to record the statement of a person unsponsored by the investigating agency.......'11. the aforesaid view was reiterated by the supreme court in the case of mahabir singh v. state of haryana, reported in 2001 (3) east cr c 81 (sc) : air 2001 sc 2503, wherein the court held that the court of a magistrate is not a place into which all and sundry can get crash and demand the magistrate to record whatever he says as self incriminatory.12. in the light of the aforesaid decisions, statement of two strangers, namely, subhash das and ram narayan yadav, who .appeared through private lawyer before the learned magistrate cannot be stated to be a statement made under section 164, cr pc. it cannot be relied for framing charge or during trial.if subhash das and ram narayan yadav had any knowledge, they could have made statement under section 161, cr pc before the police or they could have lodge a separate.fardbeyan on the basis of their knowledge. the question no. (i) is thus answered, in negative, but in favour of the petitioner.13. so far as the second question is concerned, it is question of fact i.e. whether there is sufficient ground made out of the record of the ease and the documents submitted therewith for proceeding against the accused or not.it will be evident from the impugned order dated 17th august 2002, passed in sessions case no. 270 of 2001 that the court below noticed the so called statement of subhash das and ram narayan yadav recorded under section 164, cr pc, paragraphs 10 and 35 of the case diary and the contents of the interim charge-sheet.this court has already held that the so called statement of subhash das and ram narayan yadav cannot be treated to be a statement recorded under section 164, cr pc. the court below erred in taking such statement purported to have been recorded under section 164, cr pc to hold that there are sufficient materials on record to warrant further proceeding.14. the father of the deceased, namely, ram bali sah made no statement against the petitioner hira lal yadav under section 164, cr pc. on the other hand, he (ram bali sah) challenged the order dated 6th march, 2003 by filing criminal misc. no. 5371 of 1995 before this court.the deceased, shiv chandra rrasad, son of ram bali sah was the informant and in the fardbeyan, he has not named the petitioner. on the other hand, petitioner is the fardbeyan witness. the deceased (informant) made no statement against the petitioner under section 161, cr pc, nor any such statement made by his father ram bali sah under section 161. so far as paragraph no. 10 is concerned, it is merely an observation of the investigating officer that petitioner hira lal sah made uncalled for delay in taking the informant (deceased) to hospital for his political gain. so far as paragraph no. 35 is concerned, it cannot be stated to be a statement of ram bali sah under section 161, cr pc.15. from the aforesaid fact, it will be also evident that though the paragraphs 10 and 35 do not speak against the petitioner for the purpose of framing of charges, it may give some rise to suspicion but not grave suspicion against him, but the court below misread it and erred in holding that there are sufficient materials to warrant further proceeding against the petitioner.learned app could not lay hand on any other material or document or evidence to hold sufficient ground for proceeding against the petitioner.16. in the facts and circumstances and for the reasons as stated above, the order dated 17th august, 2002 passed by the learned additional district and sessions judge, jamtara in sessions case no. 270 of 2001 is set aside.17. this revision application is allowed.

Judgment:
ORDER

S.J. Mukhopadhaya, J.

1. This revision application has been preferred by the petitioner against the order dated 17th August, 2002 passed by the learned Additional District and Sessions Judge, Jamtara in Sessions Trial No. 270 of 2001, whereby and whereunder, the petition for discharge filed by the petitioner Under Section 227 of Cr PC has been rejected.

2. The case of prosecution as per fardbeyan of Shiv Chandra Prasad (deceased) recorded by ASI, of Mihijam Police Station of 9th March, 1992 at 8 a.m. is that while he had gone to his Sand ghat at 6 am for measuring and loading sand on truck, Rejendra Yadav, Ganesh Yadav along with unknown person, whom the informant can identify, came with weapons Rajendra Yadav came along with bltala and asked about the lease papers upon which the informant replied that the documents will be shown to the Officers. Thereafter, Rajendra Yadav assaulted the informant causing grievous injuries at various places Ganesh Yadav also assaulted the informant on his head by farsa causing bleeding injury.

It was further stated that one unknown person also assaulted him by iron rod and Rajendra Yadav took Rs. 500/- from his pocket. The occurrence is said to have been witnessed by the Driver of truck No. 7869 who was present in the Sand Ghat.

Further case of the petitioner is that the fardbeyan was read over and understood by the Informant (since deceased) in presence of petitioner, Hira Lal Yadav and LTI of informant was taken. The informant could not put his signature of fardbeyan because of pain.

3. During the investigation, the statement of Ram Bali Sah, father of deceased. Shyam Sunder Prasad, brother-in-law of deceased, Negeshwar Prasad and Hira Lal Yadav (petilioner), Under Section 164, Cr PC was recorded on 8rh April, 1992.

4. The grievance of the petitioner is that two strangers, namely, Subhash Das and Ram Narayan Yadav approached the Magistrate through private lawyer to record their statement Under Section 164. It was allowed by the Magistrate and the statement of Subhash Das, Ram Narayan Yadav two strangers were recorded on 24th April, 1992. In their statement, they tried to mislead the Court by saying that Hira Lal Yadav (petitioner herein) and his associates have assaulted the deceased.

It was submitted that the .two strangers, namely, Subhash Das and Ram Narayan Yadav had been set up by the accused persons to demolish the case by disturbing the main prosecution witness Le. Hira Lal Yadav (petitioner). Both the father and brother of the deceased have full faith upon the petition, Hira Lal Yadav and they have not stated anything against him.

5. The police after investigation filed first charge-sheet against Rajendra Yadav and Ganesh Yadav, vide charge-sheet No. 27/92 dated 13th June, 2002. The investigation was, kept pending, wherein after the second charge-sheet was submitted vide charge-sheet No. 42/92 dated 25th August, 1992, whereby the charge-sheet against Rajendra Yadav and Ganesh Yadav was confirmed and a final form was submitted against Suresh Yadav and Umesh Yadav. Charge-sheet was submitted against one unknown person Under Section 302 of IPC.

6. Learned ACJM, Jamtara took cognizance of,the offence against Rajendra Yadav and Ganesh Yadav on 15th June, 1992. Cognizance of the offence was also taken against Suresh Yadav and Umesh Yadav on 16th September, 1992. Subsequently, cognizance of offence was also taken against the petitioner (Hira Lal Yadav) on 6th March, 1993.

Against the order of cognizance dated 6th March, 1993,- petitioner (Hira Lal Yadav) and father of the deceased Ram Bali Sah preferred applications for quashing vide Criminal Misc, Nos. 3402 of 1993 and 5371 of 1995 before the Patna High Court, but they were dismissed.

The petitioner filed a petition Under Section 227, Cr PC before the Court of learned Sessions Judge, Jamtara for his discharge from the case, which was dismissed by the learned Sessions Judge, Jamtara vide order dated 5th May, 2001. Against the said order, the petitioner preferred Criminal Revision No. 213 of 2001 before the Court. It was disposed of by this Court vide order dated 17th October, 2001. The Court observed and directed that at the state of framing of charge, the petitioner shall raise all the pleas available to him. The petitioner was given liberty to agitate in the trial Court that in the facts and circumstances of the case and the materials available on record, it do not warrant framing of charge against him. The objection raised by the learned APP that the second revision application is not maintainable, cannot be accepted as the petitioner was given liberty to agitate in the trial Court that in the facts and circumstances of the case and materials available on record, it do not warrant framing of the charge against him. The trial Court having rejected the petitioner's plea for discharge vide subsequent order dated 17th August, 2002, this revision application is maintainable against the said order.

7. Counsel for the petitioner made the following submissions to assail the impugned order dated 17th August, 2002 passed in Sessions Case No. 270 of 2001.

(i) The statement given by two strangers, namely, Subhash Das and Ram Narayan Yadav before the learned Magistrate cannot be termed as a statement Under Section 164. Cr PC. Such statement cannot be looked into for framing the charge against the petitioner not being a part of FIR, case diary or statement Under Section 161, Cr PC.

(ii) There is nothing on the record to make out a prima facie ground to frame charge. The petitioner has neither been named in the FIR nor any person named the petitioner while made statement Under Section 161, Cr PC.

8. Admittedly, the informant has not named Subhash Das or Ram Narayan Yadav in his fardbeyan. None of them Le. Subhash Da's or Ram Narayan Yadav has given any statement Under Section 161, Cr PC. Their names do not find place in the case diary also.

It is also not in dispute that Subhash Das and/or Ram Narayan Yadav were not produced by police before the Court of Magistrate for taking their statement Under Section 164. They appear to have approached the Court of learned Magistrate through private lawyer for recording their statement Under Section 164, Cr PC.

From the records of the case, it is evident that Subhash Das and Ram Narayan Yadav are two strangers to the case in question.

9. Now it is a settled law that : The Section 164 is intended to take care of confessional as well as non-confessional statement. The confession could be made only by one who is either an accused or suspected to be an accused of a crime. Sub-sections (2), (3} and (4) are intended to cover confessions alone, de hors non-functional statement, whereas Sub-section (5) is intended to cover such statements.

10. In the case of Jogendra Nahak v. State of Orissa, reported in 1999 (3) East Cr C 264 (SC) : AIR 1999 SC 2565 : 1999 Cri LJ 3976, while dealing with Section 164, the Supreme Court while held that 'No person can straightaway 'go to a Magistrate and require him to record a statement which he proposes to make', further held as follows :-

'If a Magistrate has power to recorded 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 the 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 Under Section 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 Under Section 311 of the Code. When such remedies are available to witnesses (who may be sidelined by the Investigating Officer) 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.

23. On the other hand, if door is opened to such persons to get in and if the Magistrates are put under the obligation to record their statements, then too many persons sponsored by culprits might through before the portals of the Magistrate Courts for the purpose of creating record in advance for the purpose of helping the culprits. In the present case, one of the arguments advanced by accused for grant of bail to them was based on the statements of the four appellants recorded by the Magistrate Under Section 164 of the Code. It is not part of the investigation to open up such a vista nor can such step be deemed neccssaiy for the administration of justice.

24. Thus, on a consideration of1 various aspects, we are disinclined to interpret Section 164(1) of the Code as empowering a Magistrate to record the statement of a person unsponsored by the investigating agency.......'

11. The aforesaid view was reiterated by the Supreme Court in the case of Mahabir Singh v. State of Haryana, reported in 2001 (3) East Cr C 81 (SC) : AIR 2001 SC 2503, wherein the Court held that the Court of a Magistrate is not a place into which all and sundry can get crash and demand the Magistrate to record whatever he says as self incriminatory.

12. In the light of the aforesaid decisions, statement of two strangers, namely, Subhash Das and Ram Narayan Yadav, who .appeared through private lawyer before the learned Magistrate cannot be stated to be a statement made Under Section 164, Cr PC. It cannot be relied for framing charge or during trial.

If Subhash Das and Ram Narayan Yadav had any knowledge, they could have made statement Under Section 161, Cr PC before the police or they could have lodge a separate.fardbeyan on the basis of their knowledge. The question No. (i) is thus answered, in negative, but in favour of the petitioner.

13. So far as the second question is concerned, it is question of fact i.e. whether there is sufficient ground made out of the record of the ease and the documents submitted therewith for proceeding against the accused or not.

It will be evident from the impugned order dated 17th August 2002, passed in Sessions Case No. 270 of 2001 that the Court below noticed the so called statement of Subhash Das and Ram Narayan Yadav recorded Under Section 164, Cr PC, paragraphs 10 and 35 of the case diary and the contents of the interim charge-sheet.

This Court has already held that the so called statement of Subhash Das and Ram Narayan Yadav cannot be treated to be a statement recorded Under Section 164, Cr PC. The Court below erred in taking such statement purported to have been recorded Under Section 164, Cr PC to hold that there are sufficient materials on record to warrant further proceeding.

14. The father of the deceased, namely, Ram Bali Sah made no statement against the petitioner Hira Lal Yadav Under Section 164, Cr PC. On the other hand, he (Ram Bali Sah) challenged the order dated 6th March, 2003 by filing Criminal Misc. No. 5371 of 1995 before this Court.

The deceased, Shiv Chandra Rrasad, son of Ram Bali Sah was the informant and in the fardbeyan, he has not named the petitioner. On the other hand, petitioner is the fardbeyan witness. The deceased (informant) made no statement against the petitioner Under Section 161, Cr PC, nor any such statement made by his father Ram Bali Sah Under Section 161. So far as paragraph No. 10 is concerned, it is merely an observation of the Investigating Officer that petitioner Hira Lal Sah made uncalled for delay in taking the informant (deceased) to Hospital for his political gain. So far as paragraph No. 35 is concerned, it cannot be stated to be a statement of Ram Bali Sah Under Section 161, Cr PC.

15. From the aforesaid fact, it will be also evident that though the paragraphs 10 and 35 do not speak against the petitioner for the purpose of framing of charges, it may give some rise to suspicion but not grave suspicion against him, but the Court below misread it and erred in holding that there are sufficient materials to warrant further proceeding against the petitioner.

Learned APP could not lay hand on any other material or document or evidence to hold sufficient ground for proceeding against the petitioner.

16. In the facts and circumstances and for the reasons as stated above, the order dated 17th August, 2002 passed by the learned Additional District and Sessions Judge, Jamtara in Sessions Case No. 270 of 2001 is set aside.

17. This revision application is allowed.