Heard learned counsel for the applicant and the learned AGA.
This 482 Cr.P.C. Application was filed in this Court in the year 1991. On 23.2.2001 nobody appeared to argue this application, therefore, this application was dismissed in default. Thereafter a restoration application was filed. Finding sufficient ground, order of dismissal in default dated 23.2.2001 was recalled and 482 Cr.P.C. Application was restored to its original number. For various reasons since thereafter, this application could not be heard although it was listed many times and most of the time was got passed over. Today also there was an illness slip of applicant's counsel and her illness slip was noted in the cause list as well but since she is present in Court and, therefore, illness slip tendered is taken on record but ignored and she is heard in support of this application and learned AGA has been heard representing respondent-State.
Challenge in this 482 Cr.P.C. Application is to the order dated 16.3.1999 passed by Special Judge, Prevention of Corruption Act, Gorakhpur in criminal revision no. 252 of 1994 preferred by State through public prosecutor against the accused persons, Sub Inspector Parashuram, SI Ajay Kumar Singh, constable Thanedar Singh and constable Radhey Shyam Yadav. By the impugned order, lower revisional court, Special Judge, Anti Corruption, has allowed the revision filed by the State against accused persons and had set aside the order dated 3.8.1994 passed by C.J.M., Gorakhpur in case no. 4830 of 1992, State Vs. Parashuram and others, by which C.J.M., Gorakhpur had refused to take cognizance on the basis of a charge sheet submitted against the accused for the reason that the same (cognizance) was time barred.
Recollected here is the fact that case was instituted against the accused persons on the basis of a charge sheet filed against them on 10.5.1992 in relation to crime no. 96 of 1991 for offences under Sections 147, 323, 342 I.P.C. Aforesaid charge sheet was submitted by CO S.K. Singh, which is annexure no. 7 to this Application. Order passed by C.J.M., Gorakhpur dated 3.8.1994 is annexure no. 9, by which he has recorded following findings:-
"(1) That in the FIR only four accused were named and two were unnamed and the prosecution has escalated the offence by making such an allegation.
(2) He has recorded a finding that if the informant Ram Murti Dhar Dwivedi was in the knowledge of name of four of the accused, he should have known the name of rest of the two accused persons.
(3) No independent witness has been cited in the charge sheet although it was alleged that many villagers have scene the incident.
(4) Informant should have mentioned in the name of the independent witnesses in the FIR lodged by him.
(5) For charge under Section 323, 342 I.P.C., sentence prescribed under the statute is one year RI and in consonance with Section 462-B Cr.P.C., where the maximum punishment is one year RI, charge sheet has to be submitted within the stipulated period of one year.
(6)Incident is alleged to have occurred on 23.7.1991 but the charge sheet was submitted on 4.1.1992 after a gap of one year and, therefore, the said charge sheet for offence under Section 323, 342 I.P.C. is barred by limitation."
Prosecutor State was aggrieved by the aforesaid order passed by C.J.M., Gorakhpur and, therefore, had challenged it in criminal revision no. 252 of 1994, through public prosecutor, before Sessions Judge, Gorakhpur.
Aforesaid revision was transferred to the Court of Special Judge, Anti Corruption, Gorakhpur. Lower revision court, after perusing the record, hearing the revisionist and other counsels came to the conclusion that all the findings recorded by C.J.M. were not tenable, puerile and were unsustainable. While referring to the factual matrix involved in the case, lower revisional court had mentioned the incident, as follows:-
"On 23.7.1991 at 2 P.M. SO/ SHO, Siktiganj namely Parashuram, SI A.K. Singh, constable Radhey Shyam Yadav, constable Thanedar Singh and two other persons came to the house of the informant Ram Murti Dhar Dwivedi and asked him to accompany them to the police station. Informant thereafter accompanied them to the police station where two accused persons were produced before him and it was asked from them as to whether informant had sent for them or not. Two accused persons thereafter stated that informant had called them. On this informant enquired as to what was the matter. Thereafter SHO informed the informant that he had called those two accused persons for committing theft of a motorcycle. Informant thereafter protested by saying that he had never seen them nor he had indulged in any illegal or wrongful act in his life to implant a temerity on him. He vouched before the police personnels also in that respect and requested that the owner of the motorcycle be sent for and only after hearing the owner that action be taken against him. On the said protest, SHO rebuffed the informant and thereafter started beating him with blunt object. Whenever the informant fell down on the ground, Radhey Shyam Yadav constable used to pick him up and then used to assault him further. Sub Inspector A.K. Singh aggravated the assault by saying that the informant was a debauch and must be assaulted severely. He further uttered that it is SHO who is assaulting the informant with compassion and had he been there, he would have belabored the informant more severely to ruin his life. SO hit the informant with more than 25 club beatings. When the informant became fainted then constable Radhey Shyam Yadav lifted him by his arm and wanted him to stroll. Informant was unable to stroll and, therefore, he was brought to the office of the police station and was made to sit there. Thereafter four constables out of whom two were recognized by the informant as Radhey Shyam Yadav and Thanedar Singh slapped and boxed him and made him to lie down supinely. Half an hour later Rama Yadav who was the owner of the motorcycle came to the police station and inform the SO that he has done something very wrong as the informant was his priest (purohit) and he has been falsely implicated by him. He further told the SO that if he (I.O.) will implicate the informant then he (Rama Yadav) will not give any evidence in court against the informant nor will contest the case and the informant be released forthwith. Thereafter SO demanded Rs. 25,000/- from Umesh son of informant to release him. Umesh was unable to pay such a huge sum and, therefore, SO took bribe of Rs. 5,000/- and then informant was released on 26.7.1991 at 4 P.M. Thereafter another son of informant came from Delhi and on 28.7.1991 got his father medically examined in district hospital, Gorakhpur. This incident was witnessed by many people."
After narrating the aforesaid prosecution allegations levelled by the informant, lower revisional court came to the conclusion that informant was assaulted by more than five persons out of whom four were named and, therefore, charge sheet under Section 147 I.P.C. was rightly submitted. Lower revisional court further found that 147 I.P.C. is punishable with two years RI and under Section 468 (C) Cr.P.C. time for taking cognizance for the aforesaid offence is three years and since charge sheet was submitted within one year and twelve days on 5.8.1992, the date of the incident being 21.7.1991, that it conclude it that the charge sheet was well within limitation period and not time barred. Lower revisional court also expressed surprise over certain observations, referred hereinafter, made by C.J.M., Gorakhpur that if informant knew names of four accused assailants, he should have known the names of rest of the two constables also and, therefore, prosecution has escalated the charges levelled by it by adding two unknown persons. Lower revisional court also concluded that at the stage of summoning, it was not excepted of C.J.M. to record a finding that there is no independent witness and, therefore, no charge is proved against the accused. It further observed that C.J.M. had transgressed scope of analysis conferred on it at the stage of summoning under Section 204 Cr.P.C., which is limited only to the extent to scan as to whether prima facie any offence is disclosed or not? Lower revisional court further came to the conclusion that ruling Gulzan Singh Vs. State of U.P. 1992 ACR-R94 does not help the case of the applicants at all as that decision relates to a complaint case before the Magistrate, where statements under Sections 200 and 202 Cr.P.C. were available and it was after the perusal of such statements that the judgment was delivered. Lower revisional court also recorded a finding that opinion of C.J.M. that no offence under Section 147 I.P.C. is made out is beyond comprehension and cannot be approved at all. Recording such findings, lower revisional court, allowed the revision filed by the State through public prosecutor vide impugned judgment and order dated 16.3.1999, which has now been assailed in the instant 482 Cr.P.C. Application.
After hearing Mrs. Kamla Mishra, learned counsel for the applicant, I do not find any merit in this 482 Cr.P.C. Application. Smt. Mishra repeated the same argument that charge sheet has been submitted only against the four accused persons and, therefore, Section 147 I.PC. will not apply. The argument so advanced is palpably wrong and absurd. If participation of five or more persons stands proved in an offence then rioting under Section 147 I.P.C. will definitely apply. In the present case, five persons had brought the informant from his house to the police station where he was belabored ruthlessly and, therefore, according to the prosecution version, participation of five or more persons in the crime stands established. In such a view, Section 147 I.P.C. definitely comes into effect as Section 141 I.P.C., which is the definition clause for the offence "unlawful assembly" is satisfied. On the facts alleged, submission of charge sheet under Section 147 I.P.C. by the I.O. against the culprits was justified and cannot be castigated. Section 147 I.P.C. is punishable with two years imprisonment and, therefore, opinion of the lower revisional court that Section 468(C) will not come to the rescue of the accused persons is legal and has to be affirmed. In a case where the offence is punishable with two years of imprisonment, cognizance can be taken within the period of three years as is provided under sub clause (C) of Section 468 Cr.P.C.
Another opinion by the C.J.M. that no independent witness was cited in the charge sheet and therefore, informant's version is not credible, to say the least, is codswallop. C.J.M. had no power to scan prosecution evidences at the stage of summoning, critically appreciating and marshaling it only to surface pitfalls in it. Lower revisional court is right in its opinion that C.J.M. has transgressed its power conferred on it under Section 204 Cr.P.C.
Learned counsel relied upon some decisions of the Apex Court, the first being Subran Vs. State of Kerala: 1993 (30) ACC 350. Said decision was rendered by the Apex Court after a full fledged trial. During trial, prosecution was unsuccessful to establish, beyond any reasonable doubt to the hilt, that five or more accused participated in the incident. What it had established was only the fact that in the crime in question, only four miscreants were involved. In such a view, Apex Court opined that Section 147 I.P.C. does not apply as the definition clause under Section 141 I.P.C. was not satisfied. Herein trial is still to commence. The aforesaid decision, therefore, cannot be of any help to the applicants.
Another decision cited by applicant's counsel is K. Hanumanta Rao Vs. K. Narsimha Rao: 1992 Crl.L.J. 734. The aforesaid decision has been taken recourse to for the proposition that Section 468 Cr.P.C. will come to the defence of the applicants. However, aforesaid judgment was entirely on different facts and circumstances. Question of limitation in that decision was considered in paragraph 20, which is reproduced herein below:-
"To sum up, a statutory obligation is placed upon the Court under Section 468, Cr.P.C. not to take cognizance of the offences of the categories specified in sub-sec. (2) thereof after lapse of the period of limitation. The code does not provide an opportunity to the accused of being heard on the bar of limitation enacted under S. 468 of the Code before taking cognizance of offences of the categories specified in sub-sec. (2) thereof. The Code does not also envisage issue of any process against the accused before taking cognizance of the offence. Any cognizance of the offence taken by the Court is subject to defeasance of the cognizance on the ground of limitation and it is open to the accused to plead before the Court in response to the process issued to him that the complaint or the challan filed against him and taken cognizance of by the Court is barred by limitation. Such a plea can be raised by the accused at any time during the trial. Section 473 confers a discretion upon the Court to take cognizance of the offences of the categories specified in sub-sec. (2) of Section 468 after expiry of the period of limitation if the Court is satisfied, on the facts and in the circumstances of the case, that the delay in the institution of the prosecution has been properly explained or that it is necessary to do so in the interest of justice. The discretion given to the Court is very vide though it must be exercised judiciously on well recognized principles no hard and fast rules can be laid down as to how the discretion can be exercised in a given case. Even when the Court takes cognizance of any of the offences of the categories specified in sub-sec. (2) of Section 468 after applying its mind to the provisions of Section 473, of the Court, it is open to the offender to plead the Court after conclusion of the trial that the provisions of Section 473 are not attacked or complied with. Where the Court takes cognizance of a major offence against an accused person, but finds him guilty of a minor offence, it is open to the accused to plead that conviction of the minor offence is bad if the complaint of the challan is filed against him beyond the period of limitation prescribed for the minor offence subject to the residual power of the Court to exercise its discretion under Section 473 Cr.P.C."
Aforesaid decision, therefore, also does not help the case of the applicant at all and does not support the contention of applicant's counsel in that respect as charge sheet in the present case was filed well within the limitation period and hence raised argument is hereby repelled.
Coming to the third decision relied upon by applicant's counsel Nethala Pothuraju & others Vs. State of Andhra Pradesh: 1991 JIC 759 SC, the only thing that can be said is that the Apex Court had found that the assailants were only three in number. In such a view, after full fledged trial, Apex Court took the view that Section 147 I.P.C. will not apply as prosecution has been able to establish participation of only three and not more of the accused persons. As has been stated above, that is not the case here. Trial is still to commence, it is for the informant to prove participation of five or more accused persons. At this stage, from the FIR lodged by him as well as the investigatory statements, the complicity of five persons in the crime is prima facie shown. In such a view Section 147 I.P.C. will definitely apply.
In view of above discussions, I do not find any merit in this 482 Cr.P.C. Application, which stands dismissed.
Interim order dated 6.4.1999 as is extended from time to time stands vacated.
Dt. 17.10.2011 AKG/-