Niren Sarma and Others vs State of Assam (CBI)

N.S. Singh, J.—The order dated 8.3.91 passed by the learned Sessions Judge, Shillong in Sessions Case No. 1 of 1989 is the subject matter under challenge in this revision petition u/s 397, 401 and/or 482 of the Code of Criminal Procedure. The fats of the prosecution case in a short compass are as follows.

Due to infiltration of refugees from Bangladesh into the State of Assam, there was great resentment by the people of Assam particularly the different Student Associations/Organisations. The All Assam Students Union called bandhs, hartals and picketings and demanded deportation of refugees and foreign nationals. On 18.1.80, a large picketing was organised in Duliajan in the District of Dibrugarh and the police resorted to firing where students were killed and many others injured. The students were of the view that Mr. Parthasarathy, Commissioner of Upper Assam Division, Jorhat, was responsible for Duliajan firing. According to the prosecution, Shri Abhijit Sarma, the present Petitioner No. 2 issued a statement through local newspaper demanding judicial enquiry against the Commissioner, Mr. Parthasarathy in connection with the North Lakhimpur C.R. Case No. 25(S)81, where one Shri Gagan Dutta was arrested and a diary was recovered from his possession which indicated that the students blamed all non-Assamese Administrative Officers responsible for the said incident. During the investigation, it revealed that the present Petitioners alongwith other 4 (four) persons had been meeting together and making plan for elimination of Mr. Parthasarathy and further, the said accused persons have been found procuring arms, ammunition and explosives and on 5.4.81, the accused persons planted a hand grenade to be operated for explosion through a special device in the chair of Mr. Parthasarathy and, on 6.4.81, when the said Mr. Parthasarathy came to office and occupied the chair, the grenade exploded resulting to his ultimate death. During the investigation, it is alleged that cogent and reliable evidences have been found pin-pointing the active participation of the above named accused persons in the commission or the crime. After the investigation is over, the accused persons including the present 3 (three) Petitioners have been charge-sheeted u/s 120-B read with Section 302 IPC and Section 5 of the Explosives Substance Act. Two separate charge-sheets have also been filed against the accused Pradip Hazarika and Niren Sarma (Petitioner No. 1) for committing the offence punishable u/s 25 of the Arms Act. Both the cases arose in the State of Assam but the trial is/was taken up in the Court of Sessions Judge at Shillong under the order of the Hon''ble Supreme Court of India. After the commitment, the accused persons including the present 3 (three) Petitioners appeared before the Court of the Sessions Judge at Shillong and made a prayer for discharging them from the charges levelled against them.

According to the defence, the present Petitioner No. 1 Shri Niren Sarma was charge-sheeted separately u/s 25 of the Arms Act and the said case is to be tried by a competent Magistrate and not by the Sessions Judge and the alleged unlawful possession of the arms has nothing to do with the killing of Mr. Parthasarathy so as to form the same transaction and, as such, there cannot be a joint trial of the case u/s 25 of the Arms Act with the main case of murder u/s 302 of the I.P.C.

It is also the case of the defence that, though the charge-sheet was submitted as against the Petitioner No. 1 (Niren Sarma) u/s 25 of the Arms Act, nothing was recovered from him and that, though the present 3(three) accused Petitioners were charge-sheeted by the CBI alongwith the others u/s 302 read with Section 120-B of the IPC and Section 5 of the Explosives Substance Act, no explosives substance were recovered from anyone of them and, as such, there is no material on record for framing charges against these 3 (three) accused Petitioners.

Shri J.M. Choudhury, learned senior Counsel assisted by Shri S.P. Mahanta for the three accused Petitioners contended, that prosecution have miserably failed to establish the link to bring home the charges levelled against them and, as such, the learned Sessions Judge ought to have discharged the present Petitioners from the charges levelled against them but the learned Sessions Judge did not appreciate the available materials on record properly and in accordance with law while passing the impugned order. Shri J.M. Choudhury further contended, that evidence led in case of one accused will not reflect in the case of the other accused and vis-a-vis and as such, each case should have been tried separately. The learned senior Counsel further argued that no incriminating articles have been recovered from any of the Petitioners and therefore, they cannot be implicated either under the Arms Act or the Explosive Substance Act and the confessional statement of one of the accused namely Prabin Saikia is inadmissible u/s 27 of the Evidence Act.

According to Shri J.M. Choudhury, the learned Sessions Judge misread and misinterpreted the evidence and other materials on record and thereby came to the erroneous conclusion that there was sufficient and reasonable ground for believing the accused persons prima facie guilty and, therefore, the impugned order passed by the learned Sessions Judge and the continuance of the proceeding against the accused persons has resulted in abuse of the process of the Court and caused great prejudice to the accused persons and, therefore, the entire proceeding including the impugned order is liable to be quashed.

At the hearing, Shri D.K. Das, the special public prosecutor, CBI, submitted that there is sufficient material on record for framing the charges as against the present Petitioners and there is no irregularity or illegality in framing the charges against the accused persons and in trying them jointly and the learned Sessions Judge passed the impugned order in accordance with law.

Now, this Court is to examine the records of the proceeding before the learned Sessions Judge for the purpose of satisfying this Court as to the correctness, legality or propriety of the impugned order.

I have heard the learned Counsel on both sides at a length and also perused the relevant records.

As per provisions of law laid down u/s 223(d) of the Code of Criminal Procedure, the persons accused of different offences committed in course of the same transaction may be charged and tried together. Here, in the instant case, also, though the accused persons have been charged separately under separate charge-sheets they can be charged and tried together as the learned Sessions Judge is of the opinion that there is sufficient and reasonable ground for believing that the accused persons are prima facie guilty in the commission of crime with a common or concerted act, In this regard, the learned Sessions Judge dealt with the matter exhaustively and made a reasoned finding.

It is well settled that, at the stage of framing chaises, the prosecution evidence does not commence. The trial Judge or the Magistrate has therefore, to consider the question as to framing of charge on general consideration of the materials placed before him by the Investigating Officer. The standard test, proof and judgment which is to be applied finally before finding the accused guilty or otherwise, is not exactly to be applied at the stage of Section 227 or Section 228. At this stage, even a very strong suspicion founded upon the materials before the Magistrate or Judge which leads him to form a presumptive opinion as to the existence of the actual ingredients constituting the offence alleged, may justify the framing of charged against the accused in respect of the commission of that offence. These principles of law find its place in a decision rendered by the Apex Court in a case between Supdt. and Remembrancer of Legal Affairs, West Bengal Vs. Anil Kumar Bhunja and Others, and also another decision reported in 1977 SC 2018.

In a case between Shivnarayan Laxminarayan Joshi and Others Vs. State of Maharashtra, the Apex Court held thus:

A conspiracy is always hatched in secrecy and it is impossible to adduce direct evidence of the same. The offence can be only proved largely from the inferences drawn from acts or illegal omission committed by the conspirators in pursuance of a common design.

In another case between Niranjan Singh Karam Singh Punjabi and Others Vs. Jitendra Bhimraj Bijja and others, the Apex Court made the following observation by discussing and referring the case of Supdt. and Remembrancer of Legal Affairs, West Bengal (supra), "It seems well settled that at the Sections 227-228 stage the Court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The Court may for this limited purpose sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case."

In my considered view, the learned Sessions Judge made a general consideration of the materials placed before him by the Investigating Officer and after hearing the learned Counsel on both sides, the learned Sessions Judge evaluated the materials and documents on record with a view to finding out if the facts emerging therefrom taken by their face value and the learned Sessions Judge found that those materials had disclosed the existence of all the ingredients constituting the alleged offences levelled against the present Petitioners and the other accused persons. I am also of the view that there is sufficient ground for presuming that the accused persons had committed the alleged offences levelled against them.

For the reasons and discussions made above, I come to the conclusion that the present 3 (three) accused Petitioners could not make out a case to justify the interference of the impugned order. In the result, this Revision petition is devoid of merit and accordingly, it is dismissed thus affirming the impugned order passed by the learned Sessions Judge, Shillong in Sessions Case No. 1 of 1989. Before I part with this case, I am constrained to make the following observations.

As the related case is of the year 1981, which has been pending since a pretty longtime, I direct the learned Sessions Judge, Shillong to dispose of the said case expeditiously. The office is directed to transmit the relevant case records to the learned Trial Court, forthwith.