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Judgment
This Revision application is directed against the order dated 15.4.2014 passed by the then Sessions Judge, Manipur East in Sessions Trial Case No.24/12/69/13 (arising out of RC NO.4(S)2003-Kolkata registered u/s 120-B/302/364-A of IPC & 27 of the Arms Act) whereby and whereunder learned Sessions Judge, after having held that no prima facie evidence is there for framing charge against the three accused persons namely Sadananda, Ibomcha and Brojen, discharged them from the case.
The facts leading to filing of this Revision Application are being given hereunder: [2.1] When one Manojkumar Sethi was found missing since the evening of 19.4.2003 when he had gone out by his Maruti Gen bearing Regn.No.MN-1K 0305, the officer in-charge of Imphal City P.S. registered a case as FIR Case No.43(4)03 on 21.4.03 against unknown for kidnapping said Manojkumar Sethi for ransom. Subsequently, one Binod Kumar Sethi lodged a case with respect to kidnapping of his brother Manojkumar Sethi, alleging therein that some 4/5 unidentified youths kidnapped his brother on 19.4.2003 for the purpose of ransom from in front of Ibotonsana Girls'' Hr.Sec.School, Uripok. On such complaint, a case was registered as Imphal PS Case No.127(5)03. Subsequently, on 27.5.2003 when the dead body of said Manojkumar Sethi was recovered from the eastern side of Burma- Sugunu road, a case was registered as FIR No.7(5)03.
[2.2] The District Police took up the matter for investigation during which the I.O., after holding inquest on the dead body, got the post mortem of the dead body done whereby the Doctor did opine that death was caused due to perforation of the lungs and laceration of the liver caused by fire arms injuries. Thereafter, the aforesaid two cases were amalgamated with the said case. During investigation the District Police could know that said Manojkumar Sethi, after attending his garment shop, went out by his Maruti Car in the evening but he never returned home. When the said Manojkumar Sethi was found missing, telephone calls were received whereby a sum of Rs.10 crore was demanded as ransom which on negotiation was reduced to 4 crore for release of the victim, Manojkumar. During investigation, local police arrested 5 persons namely (1) Athokpam Geetchandra Singh (2) Hidam Kanta Singh, (3) LO. Rajen Singh, (4) K. Jadumani Singh and (5) T. Shyamkumar.
Subsequently, CBI, upon case being entrusted to it, took up the investigation, in course of which, it recorded the statement of Geetchandra Singh who, upon being released on bail in connection with this case, had been lodged in a Jail under the National Security Act. He made statement that while he was teaching in a private school, Candid Academy English Medium School, he came in contact with one Pheijao who instigated him to join a underground organization. When he gave nod to his proposal, he was taken on 15.5.2003 by said Pheijao to a village Ningthoukhong from where he was taken to a floating hut at Loktak lake. There, he saw a nonmanipuri man who had been made captive in the said floating hut and was being guarded by 10/12 armed personnel. In the floating hut, he (Geetchandra) was interrogated extensively by two KYKL members for about 2 days but they did not find him fit to be a member of KYKL on health ground and therefore he was asked by the leader of KYKL to go back home. On 18.5.2003 said non Manipuri person, who had been taken earlier to another floating hut was brought back again to the said floating hut and then he had had talk with him during which he(non-manipuri) could know that he is returning back home. Upon knowing this, non-manipuri man gave a chit to him and asked him to hand over it to his family members so that he be rescued from the clutches of KYKL. Before leaving the hut, he was thoroughly searched during which the said chit was recovered and thereby he was severely beaten up. However, he came back home. After coming home he contacted the family members of the victim and expressed to them that he is willing to help them in getting the victim released from the clutches of underground people. When he got nod of the family member, he took family members of the victim before one Hidam Kanta to whom he (Geetchandra) had seen interacting with the members of the KYKL at floating hut in between 15.5.2003 to 18.5.2003. He, in order to help the victim, even contacted L. Rajen Singh, the elder brother of the accused Premkumar, Self styled Lieutenant of KYKL and requested him to do needful in the matter of release of the victim. Upon it, Rajen Singh asked him to arrange a person from the victim''s family for negotiation, but no one turned up and therefore matter could not be taken further. He further disclosed that while he was in custody, he was shown photographs of the 6(six) persons in presence of jail staff to whom he identified as the persons including the accused persons who were keeping watch at the floating hut. He also identified the photograph of the victim.
The I.O., apart from taking statement of said Geetchandra Singh, also recorded the statement of Hidam Kanta @ Kishorjit who stated that he along with his mother had visited the floating hut for purchasing fish where he found Geetchandra present and also inquired about the nonmanipuri person who had been made captive there. The I.O. recorded the statement of L. Rajen Singh who made statement to the effect that Geetchandra had met him on 26.5.2003 and had requested to negotiate for release of the victim, Manojkumar Sethi. Upon it, he asked Geetchandra to arrange a person of the victim''s family for negotiation. The I.O. also recorded the statement of Laishram Tomba Singh who stated that during 2nd week of April, 2003 some 11/12 KYKL members asked him to keep one kidnapped person for few days on floating hut but he refused to do so. He identified photograph of Premkumar who had met him at floating hut. [4.1] On completion of the investigation, the CBI submitted charge sheet showing in its column no.2 the names of said witnesses Geetchandra Singh, Hidam Kanta, Rajen Singh and also other persons namely Shyamkumar and K. Jadumani being not sent up for trial as they were not found involved in commission of the crime whereas the CBI submitted charge sheet against the accused H. Sadananda, Th. Brojen and S. Imocha Singh and also against Premkumar @ Premkumar showing him dead and also against O. Laikaknau Singh and L. Ashok as absconder. [4.2] On submission of the charge sheet, cognizance of the offence was taken and when the case was committed to the court of Sessions, matter was taken up for hearing on the point of charge. During the course of hearing, submission was advanced on behalf of the accused,namely S. Ibomcha, Th. Brojen and S. Sadananda Singh that no sufficient material is there to frame charge against them as only Geetchandra Singh has come forward to say about the complexity of the accused person but that statement was made by Geetchandra Singh during the period when he was in custody on being remanded to custody as an accused and as such statement of accused will not be sufficient to hold a person guilty in absence of any other material showing complexity of the accused in the alleged offence and thereby material being insufficient cannot be the basis for framing charge against the accused and thereby they deserve to be discharged from the case.
Learned Sessions Judge, having accepted the said contention and placing reliance on the decision rendered in a case of Rashid Gafoor Parkar vs. State of Maharashtra: 1982 Legal Eagle (BOM) 253, Baldev Kumar vs. State : 1987 Legal Eagle (DHC) 348, Suresh Budharmal Kalani @ Pappu Kalani vs. State of Maharashtra: 1998(7) SCC 337, Dilawar Balu Kurane Vs. State of Maharashtra: 2002(2)SCC 135, was pleased to hold that statement of co-accused, in absence of any other material, cannot be the basis for framing charge. In this regard, it was further held that no TIP was held; neither statement of said Geetchandra or other witnesses were recorded u/s 164 Cr.PC to find out whether statement of coaccused gets support from other evidence and that no material object was recovered to find out the complexity of the accused and hence it would not be proper and legal to frame charge on the basis of the statement of the coaccused, Geetchandra Singh. By holding so, the accused persons were discharged. Being aggrieved with said order, the CBI has preferred this Revision Petition.
Mr. Pradeep, learned counsel appearing for the CBI submits that it is true that said Geetchandra was taken into custody by the District Police and while he was in custody, statement was recorded but his statement would never be hit by Section 25/26 of the Evidence Act as he was never found to be accused by the CBI and therefore the CBI never sent up Geetchandra or other witnesses for trial still the Court took the statement of said Geetchandra as the statement of the co-accused and found his statement, being statement of co-accused, insufficient for framing charge though statement of Geetchandra Singh cannot be taken to be the statement of the co-accused and thereby court committed illegality in discharging the accused persons.
As against this Mr. Ibochaoba, learned counsel appearing for the respondents submits that admittedly Geetchandra Singh on being forwarded by the District Police was remanded to jail custody in this case and while he was in custody, his statement was recorded and thereby statement of Geetchandra will always be taken as statement of the coaccused and that even the CBI has put the name of Geetchandra and other persons in the column 2 though not sent up for trial but still they can be taken to be the accused and thereby the court taking the statement of Geetchandra as the statement of co-accused has rightly discharged the respondents after finding that no other material is there except the statement of co-accused and thereby the court is absolutely justified in holding that no sufficient material is there to frame charge. [7.1] Further, it was submitted that apart from statement of Geetchandra Singh, no other material is there showing culpability of the accused person and that accused persons were never put on T.I. Parade for being identified by said Geetchandra Singh and therefore any identification if made by said Geetchandra in course of evidence would be futile in absence of accused being identified by him in course of TI parade and thereby it is quite certain that there is no prospect of case ending in conviction and thereby valuable time of the court would be wasted for holding a trial only for the purpose of formally completing the procedure to pronounce a conclusion on future date. In this regard, learned counsel has referred to a decision rendered in a case of Satish Mehra vs Delhi Administration & Anr. : (1996) 9 SCC 766 and thus it was submitted that order impugned never warrants to be interfered with by this Court.
Having heard learned counsel appearing for the parties and on perusal of the record, it be stated that when the matter was taken up for investigation by the district police, it took Geetchandra Singh along with four other persons namely H. Kanta, L. Rajen Singh, K. Jadumani and Th. Shyamkumar as accused along with other accused persons (respondents) against whom the CBI has submitted charge sheet and therefore aforesaid persons were taken into custody. However, they were released on bail. Subsequently, while the said Geetchandra Singh was in custody in connection with a case relating to NSA, his statement was recorded by the CBI wherein he made statement in the manner as indicated above. The CBI, after recording his statement and statements of other witnesses, never found them to be privy of the crime committed by the accused persons and thereby the CBI never submitted charge sheet against them though their names are there in the column 2 of the charge sheet bit they were never sent up for trial . In that event, said Geetchandra Singh and other persons stand as witnesses but the court has taken them to be accused simply for the reason that they were taken into custody by the District police and the statements have been recorded while they were in custody of the police. But while holding so, the court forgot to take notice of the fact that though they were taken into custody but as per their statements they had no role to play in the commission of offence and thereby the CBI while submitting charge sheet never sent up them for trial. [8.1] On perusal of their statements, I also do not find anything showing their complexity in any manner with the other accused and thereby Geetchandra has wrongly been taken to be the co-accused by the Court.
The learned court, in absence of any other material and also in absence of any TIP being conducted by the CBI did not consider the statement of Geetchandra, being taken to be statement of co-accused sufficient to frame charge presumably for the reason that it may not lead to conviction. The said approach does not seem to be correct as at the stage of framing charge what the court has to see is whether there is ground enough for presuming that the accused has committed offence for which he has been charged. The court is not to judge the truth veracity and effect of evidence before it at that time meticulously with the view to examine as to whether it provides sufficient ground for conviction of the accused or whether the trial was sure to culminate in conviction. In this regard, I may refer to a decision rendered in a case of Kapil Kumar Vs. State : (1996)1 AR Delhi 1986. In this regard, I may also refer to a decision reported in a case of Dilawar Balu Kurane vs. State of Maharashtra : (2002) 2 SCC 135 wherein it has been observed as follows: "(12) Now the next question is whether a prima facie case has been made out against the appellant. In exercising powers under section 227 of the Code of Criminal Proce3dure, the settled position of law is that the Judge while considering the question of framing the charges under the said section has the undoubted power to sift and weigh the evidenced for the limited purpose of finding out whether or not a prima facie case against the accused has been made out; whether the materials placed before the court disclose grave suspicion against the accused which has not been properly explained the court will be fully justified in framing a charge and proceeding with the trial; by and large if two view are equally possible and the Judge is satisfied that the evidenced proceduce3d before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully justified to discharge the accused, and in exercising jurisdiction under section 227 of the code of Criminal Procedure, the Judge cannot act merely as a post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court but should not make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial. "
Further, I may refer to a decision rendered in a case of Suresh @ Pappu Dhudharnal Kalai vs. State of Maharastra :2001 (3) SCC 703 wherein it has been held that at the stage of framing of the charge, the court has to consider the material, with the view to find out if there is a ground for framing the charge that the accuse has committed offence or that there is no sufficient ground for proceeding against him and not for the purpose of arriving at the conclusion that it is not likely to lead to a conviction.
Under the circumstances, after having regard of the statement of Geetchandra Singh and other witnesses, prima facie case seems to be there for the offence under which charge sheet has been submitted. Accordingly, the impugned order is set aside and the case is remanded back to the trial court for proceeding with the trial after framing charges.
Thus, this Cril. Revision petition stands allowed. LCR be sent back immediately.