Rakshpal vs State of U.P.

S.C. Agarwal, J.—Supplementary Affidavit filed today is taken on record.

Heard learned Counsel for the applicant and learned AGA for the State.

This is a complainant application u/s 482 Code of Criminal Procedure against the order dated 9.2.2011 passed by Additional Sessions Judge, Court No. 5, Badaun in S.T. No. 723 of 1997 (State v. Dwarika Singh and Ors.), whereby application 147 Kha dated 10.12.2010 filed on behalf of the applicant/ complainant for amending the charge was rejected.

In the S.T. No. 725 of 1997, State v. Dwarika Singh and Ors. pertaining to P.S. Wazirganj, district Badaun under Sections 147/148, 302, 451 and 379 Indian Penal Code, an application u/s 216 Code of Criminal Procedure was moved on behalf of complainant stating therein that in the instant case, the dacoity was also committed besides triple murder and therefore, offence u/s 396 Indian Penal Code was also prima facie disclosed and therefore charge be amended and charge u/s 396 Indian Penal Code be also framed.

Learned Sessions Judge rejected the application on the ground that the jurisdiction for trying offences relating to Dacoity is vested in the Court of Special Judge (DAA), Badaun and he, as Additional Sessions Judge had no jurisdiction to frame charge u/s 396 Indian Penal Code and also had no power to transfer the case to the Special Court. Consequently, the application u/s 216 Code of Criminal Procedure was rejected.

Learned Counsel submitted that the trial could not have abdicated his duty to frame proper charge on the ground that he could not have framed charge u/s 396 Indian Penal Code. when a specific plea was raised that offence u/s 396 Indian Penal Code was also disclosed, it was the duty of the trial Court to give proper finding that prima facie offence u/s 396 Indian Penal Code was disclosed or not.

I find sufficient force in the submissions advanced by the learned Counsel for the applicant. Learned AGA has also supported the argument advanced on behalf of applicant.

When a specific plea was raised on behalf prosecution that besides the triple murder, the dacoity was also committed and various parts of the tractor trolley was also looted, in these circumstances, the learned Additional Sessions Judge ought to have applied his mind to the facts of the case and should have come to a definite conclusion whether prima facie offence u/s 396 Indian Penal Code was disclosed or not. If Court was of the opinion that offence u/s 396 Indian Penal Code was not disclosed, the Court would have been justified in rejecting the application. On the other hand, if learned Additional Sessions Judge comes to the conclusion that prima facie offence u/s 396 Indian Penal Code is disclosed and charge under the said Section has to be framed in that case, he cannot reject the application on the ground that he has no jurisdiction to do so. If the Court comes to the conclusion that charge u/s 396 Indian Penal Code should also be framed, the Additional Sessions Judge can write a letter to the Sessions Judge so that case may be transferred to the Court of Special Judge (DAA), Budaun so that proper charge may be framed. The application u/s 216 Indian Penal Code cannot be rejected on the ground of lack of jurisdiction. As Additional Sections Judge, the trial Court had full jurisdiction to decide whether the charge u/s 396 Indian Penal Code is to be framed or not. This part of his duty has not been performed by the learned Additional Sessions Judge. In these circumstances, the impugned order is liable to be set aside.

The application is allowed.

The impugned order dated 9.2.2011 is set aside.

Learned Additional Sessions Judge is directed to decide the application u/s 147 Kha u/s 216 Code of Criminal Procedure afresh in accordance with the directions given above.