Angad Kumar Singh @ Angad Singh vs The State of Jharkhand

H.C. Mishra, J.—Heard learned counsel for the petitioner and learned counsel for the State. Petitioner is aggrieved by the order dated 24.5.2013 passed by the learned Sessions Judge, Jamtara, in S.T. Case No. 44 of 2013, whereby the Court below has found that there are sufficient materials for framing charge under Sections 366-A/34 of the IPC against the petitioner, and has directed the petitioner to appear in the Court for framing of the charge.

The petitioner has been made accused in Jamtara P.S. Case No. 207 of 2008, corresponding to G.R. No. 474 of 2008, for the offence under Sections 366-A/34 of the IPC, which was instituted against the petitioner and two unknown female accused persons, alleging that they kidnapped of the minor daughter of the informant. After investigation, the police submitted the charge-sheet against the petitioner for the same offence and accordingly, after taking cognizance, the case was committed to the Court of Session.

In the Court of Session, the petitioner filed his application u/s 228 of the Cr.P.C., stating that from the FIR, and the statements of the witnesses recorded by the police, it appeared that the case was for the offence for kidnapping simpliciter of a minor girl, as no intention was imputed either in the FIR or in the evidence of the witnesses examined by the police. The petitioner took the plea that the offence u/s 366-A IPC was not at all made out against him, rather it was a case for the offence u/s 363 of the IPC, only. The submissions of the petitioner found favour in the Court of Session, and accordingly by order dated 15.1.2009, passed in S.T. No. 127 of 2008, the learned 5th Additional Session Judge, FTC, Jamtara, found that the case was not exclusively triable by the Court of Session, and transferred the case back to the Court of Chief Judicial Magistrate, Jamtara, for trial in accordance with law. The order passed by the learned 5th Additional Sessions Judge in S.T. No. 127 of 2008, has been brought on record as Annexure-4 to the application. It is submitted by the learned counsel for the petitioner that in the transferee Court, the charge was framed against the petitioner for the offence u/s 363 of the IPC and evidence was going on.

In the meantime, a supplementary charge-sheet was submitted in the said Jamtara P.S. Case No. 207 of 2008 against one Manoj Kumar Verma, again for the offence under Sections 366-A/34 of the IPC. In the said supplementary charge-sheet also, the cognizance was taken and the case was committed to the Court of Session, and Sessions Trial No. 28 of 2012 was instituted against the co-accused Manoj Kumar Verma and the charge was framed against him under Sections 366-A/34 of the IPC. It appears that before the Sessions Judge, Jamtara, in Sessions Trial No. 28 of 2012, which was pending against the co-accused Manoj Kumar Verma, an application was filed by the prosecution mentioning that the original records of said G.R. Case No. 474 of 2008 was pending in the Court of S.D.J.M., Jamtara, for trial and the same may be called for and amalgamated with this case, whereupon the learned Sessions Judge passed the order recalling the original records of G.R. No. 474 of 2008 to his Court. Subsequently, it appears that another Sessions Trial was instituted against the petitioner in the Court of Sessions Judge, Jamtara, which is Sessions Trial No. 44 of 2013, in which, the Court below directed for framing the charge against this petitioner u/s 366-A of the IPC, by order dated 24.5.2013, which has been challenged in the present revision application.

Learned counsel for the petitioner has submitted that the impugned order dated 24.5.2013 passed by the learned Sessions Judge, Jamtara, is absolutely illegal, in as much as, the Court of coordinate jurisdiction had already passed the order on the application of the petitioner finding that no offence was made out u/s 366-A of the IPC, rather the offence was made only u/s 363 of the IPC, and the matter was transferred to the Court below for trial in accordance with law, where the trial was actually going on. It has been submitted that the impugned order dated 24.5.2013 tantamounts to recalling/setting aside the order passed by the Court of co-ordinate jurisdiction by the learned Sessions Judge and the same cannot be sustained in the eyes of law. Learned counsel further submitted that the witnesses examined so far in the Trial Court had not stated anything about the intention behind kidnapping of the victim and accordingly, there is no order of the Trial Court below committing the case to the Court of Session, and without there being any such order, the impugned order has been passed by the learned Sessions Judge, Jamtara.

Learned counsel for the State has opposed the prayer and has submitted that the trial of the other co-accused was going on before the Sessions Court and accordingly, there is no illegality in the impugned order in recalling the original records from the Court below and ordering for framing of the charge against the petitioner also u/s 366-A of the IPC. It has also been submitted by the learned counsel for the State that the victim is still traceless.

After having heard learned counsel for both the sides and upon going through the impugned order and the order sheet of the Court below, which has been brought on record, I find force in the sub-mission of the learned counsel for the petitioner. The order dated 15.1.2009 passed by the learned Addl. Sessions Judge-5th, Jamtara, in S.T. No. 127 of 2008 clearly shows that the application filed by the petitioner was adjudicated by him and it was found that the offence was not made out u/s 366-A of the IPC, rather the offence was made out only u/s 363 of the IPC, and accordingly, the case was transferred to the Court of learned Chief Judicial Magistrate for trial in accordance with law. Once this order was passed by the learned Additional Sessions Judge, the case could not be transferred to the Court of Sessions Judge without there being any judicial order by the Trial Court on the basis of evidence on record that the case was actually made out u/s 366-A of the IPC. This having not been done and there being no such order passed by the Trial Court, the learned Sessions Judge had no jurisdiction to recall the case back and to order for framing of the charge u/s 366-A of the IPC against the petitioner. I find that the order dated 24.5.2013 passed by the learned Sessions Judge, Jamtara, in S.T. Case No. 44 of 2013, is wholly without jurisdiction and the same cannot be sustained in the eyes of law.

Accordingly, the impugned order dated 24.5.2013 passed by the learned Sessions Judge, Jamtara, in S.T. No. 44 of 2013 is hereby set aside. This application is accordingly, allowed. It goes without saying that the trial of the petitioner shall continue to be held before the Trial Court, where it was being held upon transfer by order dated 15.1.2009, passed in S.T. No. 127 of 2008, by the learned 5th Additional Session Judge, FTC, Jamtara, until any contrary order is passed by the Trial Court in accordance with law.