Ram Autar vs State of U.P. and Others

Amar Saran, J.—This application has been filed by the complainant for a relief that the order dated 19.5.2003 passed by the Addl. District and Sessions Judge, Etawah, be quashed and the case be transferred to the court of Spl. Judge, Dacoity Affected Areas Act.

By the order dated 19.5.2003 the learned Addl. District and Sessions Judge/FTC No. 24. Etawah has refused application No. 12-Kha u/s 216 Cr.P.C. moved by the complainant/informant for framing a charge also under Sections 395 and 397 IPC on the ground that the investigating officer during investigation has found that the accused had deposited the so-called looted gun in the police station and that the allegations of robbing Rs. 3500/-cash and jewellery appeared to be false and the investigating officer had only filed a charge-sheet under Sections 325, 323, 147, 504, 506 and 427 IPC.

Initially in this case notice was issued to respondent Nos. 2 to 6 calling for a counter affidavit within 4 weeks. Learned AGA was also granted the same time for filing of counter affidavit on behalf of the State. However, office report dated 15.10.2003 shows that the learned Counsel for the applicant had not supplied three additional copies of the petition for sending the notice to respondent Nos. 2 to 6 and notice could not be issued as per the order dated 19.8.2003. Subsequently, time was again granted to the accused-respondents for filing counter affidavit within 4 weeks and the CJM was directed to ensure service of the notice on the opposite parties. However, it appears that no such notice has been served and there also no counsel to represent the accused-respondents.

In these circumstances, I think no purpose would be served in keeping this petition pending any longer in this Court as in pursuance of the order dated 19.8.2003 the proceedings in the trial court are already stayed to the detriment of the complainant-applicant. Also, I think that u/s 216 Cr.P.C. there is an option before the court concerned to alter or add to any charge at any time before the judgement is pronounced and if adequate material is forthcoming at any stage which the court considers reliable and believable, it will be open to the court to alter or add the charge and to add the concerned sections.

However, learned Counsel for the applicant contended that as one of the offences for which the accused has been charge-sheeted, namely, Section 325 IPC is mentioned in Clause (1) of the Schedule to the U.P. Dacoity Affected Areas Act. 1983. (hereinafter referred to as the DAA Act) the trial before the present trial court, i.e. Additional District and Sessions Judge/FTC 24, Etawah, was illegal. 1 do not find any substance in this argument because Section 6 of the DAA Act provides for jurisdiction of special courts. It reads as follows:

Jurisdiction of Special Courts.-(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 or any other law for the time being in force, a scheduled offence shall be triable only by a Special Court.

(2) In trying any scheduled offences a Special Court may also try any offence other than such offence with which a scheduled offender may be charged at the same trial under any law for the time being in force.

Now a scheduled offence is defined in Section 2(b) of the DAA Act. It reads as follows:

(b) "scheduled offence" in relation to a dacoity affected area means an offence, specified in the schedule to this Act, being an offence committed by a scheduled offender;

Therefore, a scheduled offence in relation to a dacoity affected area means an offence which is specified in the schedule being an offence committed by a scheduled offender. Now we have to look to the definition of a scheduled offender which is defined in Section 2(c) of the DAA Act. It reads as follows:

(c) "scheduled offender" means a person who commits or has committed or is accused of committing or attempt to commit dacoity or robbery as such or being so connected with scheduled offence as to form part of the same transaction, whether such offence has occurred at the same time and place or at different times and places;

As a scheduled offender means a person who has committed or is accused of committing dacoity or robbery and his act is so connected with a scheduled offence so as to form part of the same transaction, only then will it be an offence by a scheduled offender. Unless the court is satisfied that an offence u/s 325 was committed when the accused was committing or attempting to commit dacoity or robbery only then the offence could be treated as a scheduled offence under the DAA Act and only then the requirement of Section 2(b) would be satisfied and there would be bar of any other court to try the offence other than the Special Courts constituted u/s 7. As the said satisfaction has not been reached upto this stage, I find no illegality in the order of the concerned trial court framing the charge and proceeding with the trial.

As already mentioned above, if at any stage the trial court feels that the offence may be altered, he may pass appropriate orders. However, no interference is called for at this stage.

This application is disposed of with the aforesaid observations.