IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Revision No.319 of 2002 (Against Judgment and order dated 28.01.2002 passed by Sri Deewan Abdul Azeej Khan, Judicial Magistrate, Ist Class, Darbhanga in G.R. Case No.1711/93, Trial No.277/2002) ================================================== Suresh Kumar Sharma, son of Sri Mahabir Prasad Sharma, resident of Mohalla- Lal Bag, P.S.- Town Darbhanga, District- Darbhanga. .... .... Petitioner Versus 1. The State Of Bihar. 2. Rajendra Prasad Agarwal, son of Vishwambhar Dayal Agarwal. 3. Gangadhar Agarwal, son of Vishwambhar Dayal Agarwal. 4. Leeladhar Agarwal, son of Vishwambhar Dayal Agarwal. (All are residents of Mohalla-Khalpara, P.S.-Siliguri, District- Siliguri (West Bengal) .... .... Opposite Parties ================================================== Appearance : For the Petitioner : Mr. Prabhash Ranjan Thakur, Advocate : Mr. Rajesh Kumar, Advocate For the Opposite Party: :Mr. B.P.Pandey, Senior Advocate : Mr. Jai Prakash Verma, Advocate For the State : Mrs. Indu Bala Pandey, A.P.P. ================================================== CORAM: HONOURABLE MR. JUSTICE AMARESH KUMAR LAL ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE AMARESH KUMAR LAL) Amaresh Kumar Lal, J. The informant-petitioner has preferred this revision application to set aside the order dated 28.01.2002 passed by the learned Judicial Magistrate, Ist Class, Darbhanga in G.R.No.1711/93, Trial No.277/02 by which the accused opposite party nos. 2 to 4 have been acquitted from the charges under Sections 365, 382, 388 and 389 of the I.P.C. Patna High Court CR. REV. No.319 of 2002 dt.28-09-2011 2 and also for direction for giving proper opportunity to the prosecution for leading evidence. The prosecution case, in brief, is that the petitioner deals in sale and purchase of Tea Leaves in his own shop named as S.K. Enterprises at Prince Market, Subhash Chowk, Darbhanga and he used to go to Siliguri for purchasing of Tea Leaf. On 6.09.1993, he boarded in the bus at Darbhanga at about 3.30 P.M. keeping Rs.40,000/- in the empty bag and put in the dickey of the bus. 3-4 persons sat near him and on their query he stated that he was going to Siliguri to purchase Tea Leaf. In the way, one of them asked him to pay the money failing which he would kill him. On 7.09.1993, the bus reached Siliguri bus stand at about 8-9 A.M. During journey the accused used to serve him tea, water etc. and were threatening to keep quite. Later on in the bus stand, the informant and other four accused persons came down from the bus, the accused searched his pocket and took Rs.60-70/-. Thereafter, they asked to him to purchase the goods. The petitioner took the empty bag containing Rs.40,000/- from the dickey of the bus and purchased tea worth Rs.35,000/- from the Modi Tea Company and Paras Lal Hardwari Lal Shop and when he was coming to the bus stand in the way the aforesaid Patna High Court CR. REV. No.319 of 2002 dt.28-09-2011 3 four persons and two other persons surrounded him with the goods and took him in a building got the goods unloaded and took him in a room and they assaulted him and took Rs.5000/- from him. They also asked him to call his father with Rs.1,00,000/-, thereafter, he would be released. After tying him, he was closed in a room and also took away the packets of tea. During ill-treatment with the informant, he could gather the name of those accused as Leeladhar, Rajendra, Gangadhar and Sanjay and two other persons were Bangali and he could not understand his name. On 8.09.1993, al the six persons boarded him in the bus and asked to give Rs. 1,00,000/- failing which the members of his family would be killed. On 9.09.1993, he reached at his house in the night and came to know that his grandfather went to Siliguri in search of him. On telephone, he informed his grandfather about the occurrence. His grandfather could identify that he was kidnapped by the associate of Nakipuriya. On 12.09.1993 at about 10.00 A.M., the grandfather of the informant returned to Darbhanga and thereafter, the informant went to the police station and gave his written information to the police. It has been further alleged that the accused has taken his signature on the blank paper. On this information, Darbhanga (town) Patna High Court CR. REV. No.319 of 2002 dt.28-09-2011 4 P.S. Case No.139/93 was instituted. After investigation, the charge-sheet was submitted and cognizance was taken against the four accused. Out of them, Sanjay Agrawal was declared absconder and later on his case was separated. As such, the case proceeded against the accused opposite party Rajendra, Gangadhar and Liladhar. After the trial, the accused have been acquitted by the impugned order. The main contention of the learned counsel for the petitioner is that no notice was served upon the petitioner for giving evidence. The case was fixed for appearance for the accused Sanjay Agrawal, who was neither arrested nor turned up for trial. During that period, the petitioner had gone to Delhi to look after his business. In the meantime, the accused managed everything and the case of the aforesaid Sanjay Agrawal was separated on 18.07.2000 and the charges were framed against the remaining accused on 20.09.2000. Without any summon or notice, P.W.I appeared in the court, who was examined and declared hostile. Thereafter, a petition was filed by the prosecution to issue summon against the prosecution witnesses who were named in the charge-sheet and the application was allowed and order was passed for issuing summon to the witnesses. On 20.01.2001, no witness was Patna High Court CR. REV. No.319 of 2002 dt.28-09-2011 5 present and the case was adjourned to 5.02.2001. In the margin column of the order-sheet, it is not clear as to whom the summons were issued. Thereafter, the other three witnesses were examined. P.W.2 was examined on 17.02.2001 and P.W.3 and P.W.4 were examined on 28.02.2001 and they were declared hostile. Thereafter, no step was taken by the Assistant Public Prosecutor to procure the attendance of the prosecution witnesses including the informant and the I.O. It has further been mentioned in the order-sheet of the court that on 2.01.2002, the prosecution was given last chance and the case was fixed for evidence on 29.01.2002, but the date has been altered and interpolated and 29.01.2002 has been interpolated as 19.01.2002 and the case was finally disposed of on 28.01.2002. It further appears from the order-sheet that on 19.01.2002; the case of the prosecution was closed and the next date 28.01.2002 was fixed for statement of the accused, but on 28.01.2002 the order was also passed and the accused were acquitted. It has further been submitted that at no point of time, the Assistant Public Prosecutor I/c of the prosecution did take any initiation for appearance of any of the witnesses including the informant and the I.O. of the case. No non-bailable Patna High Court CR. REV. No.319 of 2002 dt.28-09-2011 6 warrant has been issued against the prosecution witnesses to procure their presence. The informant had no information or knowledge that the case is pending for evidence of prosecution witnesses. The learned Magistrate has passed the impugned order in great haste without giving proper opportunity for the examination of the prosecution witnesses. The learned counsel for the opposite parties has submitted that the accused opposite parties have been appearing in this case for a long time. The co-accused Sanjay Agarwal was not appearing and after finding no way out the case of the absconding accused was separated vide order dated 18.07.2000. The charges were framed against the accused opposite party on 20.09.2000 and the order was passed for issuance of summons against the witnesses and the summons were issued on 22.01.2001 against the witnesses mentioned in the main case. He has further submitted that on 2.01.2002, the case was adjourned to 19.01.2002, but due to mistake, it was mentioned as 29.01.2002 which has been corrected by making overwriting; and the accused had also filed petition under Section 317 Cr.P.C. before the learned Magistrate on 19.01.2002, which is available on the record. Even after Patna High Court CR. REV. No.319 of 2002 dt.28-09-2011 7 direction of the learned Magistrate, no prosecution witness was produced on 19.01.2002, as such, the prosecution evidence was closed on 19.01.2002 and the case was adjourned to 28.01.2002 for the statement of the accused under Section 313 Cr.P.C. The statement of the accused was recorded under Section 313 Cr.P.C. on 28.01.2002 and the hearing of the parties was made and after the launch, the judgment in the case was delivered. The prosecution witness had not supported the case, as such, the accused were acquitted. This petition has got no merit and it should be dismissed. After hearing the learned counsel for both the parties and on perusal of the record, it appears that the contention of the learned counsel for the petitioner is correct. The case was pending for appearance of the co-accused Sanjay Agarwal, but he was not arrested nor did he appear in the case, as such, his case was separated vide order dated 18.07.2000. The case was adjourned to 2.08.2000 for supply of police paper, but it was not supplied on 2.08.2000 and 22.08.2000 and it was supplied on 20.09.2000 and on the same date, the charges were framed against them and the order was passed for issuance of notice to witnesses. P.W.I Govind Das Takriwal Patna High Court CR. REV. No.319 of 2002 dt.28-09-2011 8 was examined on 16.12.2000 and the summons has been issued on the witnesses on 22.01.2001. There is no service report on the record and the bailable warrant of arrest has been issued, but there is no report regarding the service of the bailable warrant and no non-bailable warrant has been issued. It further appears that on 2.01.2002, last chance was given to the prosecution for evidence and the case was adjourned to 29.01.2002, but it appears that after interpolation, it has been made 19.01.2002. On 19.01.2002, there is petition under Section 317 Cr.P.C. filed on behalf of the accused. No witness was present and the prosecution evidence was closed on 19.01.2002 and it was adjourned to 28.01.2002 for statement of the accused. On 28.01.2002, the statement of the accused has been recorded, thereafter, both the parties have been heard and the case was fixed for judgment after lunch on the same date the judgment was delivered and the accused have been acquitted on the same day. It further appears that there is glaring defect in the procedure under Section 230 Cr.P.C. and also interpolation in the date fixed for evidence. There is also nothing on the record to show that the procedure laid down under Section 230 Cr.P.C. was fully complied with. Patna High Court CR. REV. No.319 of 2002 dt.28-09-2011 9 In this connection, reference may be made to a decision in the case of Brajesh Kumar Vs. Bhupendra Singh @ Upendra Singh and Ors. reported in 1999(3) PLJR 407. For the reasons and discussions aforesaid, it is held in this case that there is glaring defect in the procedure and there is manifest error on the point of law as well, which will lead to flagrant miscarriage of justice as the learned trial court has failed to exercise the power as vested in him, inasmuch as, the judgment of acquittal has been passed without fully complying the provision of Section 230 Cr.P.C. The impugned judgment of acquittal is not fit to be sustained. It must be held to be without jurisdiction. The impugned judgment is set aside and the matter is remanded back to the learned trial court for retrial in accordance with law. In the result, this application is allowed. Patna High Court, Patna Dated the 28th September, 2011 NAFR/V.K. Pandey ( Amaresh Kumar Lal, J.)