Dalip and Others vs State of Haryana Another

Rekha Mittal, J.—The present petition lays challenge to order dated 30.09.2009, passed by the Additional Sessions Judge, Narnaul, whereby the petitioners have been charge sheeted for offence under Sections 323, 342, 367, 395, 147, 149 and 506 IPC while setting aside order dated 10.11.2008, passed by the Judicial Magistrate 1st Class Mahendergarh, vide which, petitioners Dharampal, Hukam Chand, Dalip and one Chhaju Ram (non-petitioner) were discharged, after recording pre-charge evidence. Counsel for the petitioners submits that the Judicial Magistrate 1st Class, framed charges against accused Richpal u/s 323, 392 IPC and accused Anil u/s 352 IPC. The revisional Court recorded that the present petitioners, being the members of an unlawful assembly are liable for the acts of other accused committed in pursuance of common object of unlawful assembly, even if they individually have not committed the said offence. It is further argued that the Court, without application of mind, passed impugned order framing charge against the petitioners under sections 323, 342, 367, 395, 147, 149 and 506 IPC when the accused to whom overt acts have been attributed, have been charged for offence under Sections 323, 392 IPC, by accused Richpal and section 352 IPC stated to be committed by accused Anil. It is further submitted that the Court has failed to take into consideration that discharge of the petitioners by the trial Magistrate, after recording pre-charge evidence, tantamounts to termination of criminal proceedings against them and the scope of interference in an order of discharge is vastly different than interference in a judgment of conviction. The last submission made by counsel is that the impugned order does not comply with the provisions of section 245 Cr.P.C.

Counsel for the respondents, on the contrary, contends that the learned trial Magistrate wrongly and illegally passed order dated 01.11.2008 in favour of the petitioners. It is further argued that the illegality committed by the trial Court was rightly corrected by the Additional Sessions Judge, Narnaul, in exercise of jurisdiction u/s 397 Cr.P.C.

I have heard counsel for the parties and perused the records.

Counsel for the respondents has not disputed that accused Richpal has been charged for offence under sections 323 and 392 IPC and accused Anil u/s 352 IPC. No overt act has been attributed to the present petitioners, who are stated to be the members of an unlawful assembly, consisting of the petitioners and accused Richpal and Anil etc. The Additional Sessions Judge, Narnaul, passed order for framing charge against the present petitioners by recording a finding that they are also constructively liable for commission of offence by other members of the unlawful assembly of which they were members, even if they individually have not committed any offence. The Court passed the order framing charge against the petitioners for offence under sections 323, 342, 367, 395, 147, 149 and 506 IPC, without application of mind and ignoring the fact that the accused to whom an active role has been attributed have not been charged for offence under sections 342, 367, 395, 147, 149 and 506 IPC.

A perusal of the impugned order would reveal that the revisional Court has failed to appreciate that discharge of the petitioners tantamounts to termination of proceedings qua them, thus, the order passed by the Magistrate was required to be examined in the light of exercise of power to interfere in a judgment of acquittal.

This apart, no such finding has been recorded by the revisional Court that keeping in view the evidence led on record if remains unrebutted, would warrant conviction of the petitioners and, therefore, the order passed by the Magistrate discharging the petitioners, cannot be sustained. In view of the facts and circumstances discussed herein above, the order passed by the Additional Sessions Judge, Narnaul is illegal and shows non-application of mind. As a result, the impugned order is set aside and the matter is remitted to the Court of Additional Sessions Judge, Narnaul, for decision afresh, after affording an opportunity of hearing to the parties, within a period of two months.