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Judgment
S. Ravindra Bhat, J.—In the present petition, the judgment of the learned Additional Sessions Judge in Sessions Case No. 188/2000 has
been impugned as far as it directs the Deputy Commissioner of Police to ensure that immediate action was taken against the present petitioner
(PW-5), towards prosecuting him of the offences u/s 307 IPC.
Briefly stated facts are that on allegations of commission of offences under Sections 307/147/149/34 IPC and Sections 3/4 of Prevention to
Damage of Public Property Act, five persons were named as accused in a First Information Report (FIR No. 280/1998).
The accused were allegedly involved in the offences by removing of screw of oxygen pipe line in Safdarjung Hospital in furtherance of a
common object. The oxygen supply was connected to the Nursery of the Safdarjung Hospital where 25 new born were in the need of oxygen and
three new born were on ventilator, requiring oxygen for their survival. These led to 15 to 20 minutes after which it was restored.
Learned Counsel for the petitioner urged that the prosecution could not establish the guilt of the accused, the petitioner was a witness being
PW-5. The petitioner was an employee in the Hospital and was cited by the prosecution as a witness in support of its case. During the course of
the trial, the petitioner did not support the prosecution.
The trial court in its order, particularly, at para 26 proceeded to record that the petitioner resoled from his statement made to the police u/s 161
Cr.P.C. It raised several queries as to his alleged involvement in the whole episode, dealing with his alleged duty to inform the authorities in time
and alert the other members of the staff both with regard to disruption and also for remedial action.
After discussing the merits of the case, the trial court issued the impugned direction, which reads as follows:
However, prima facie it has appeared before me that PW5 Sahansar Pal has played the main role in the commission of crime by conspiracy,
abetment and or actual commission of the same offence as charged against the accused persons in this case. The offence punishable u/s 307 IPC is
punishable up to life imprisonment and other offences are also punishable exceeding three years imprisonment, Therefore, there is no limitation of
time for prosecuting the offender. Therefore, the Deputy Commissioner of Police of concerned area hereby stands directed to ensure that
immediate action is taken against PW5 Sahansar Pal to prosecute him of this offence and take necessary disciplinary action against SI D.L.
Sharma investigating Officer of this case for his failing to investigate this case diligently, honestly and sincerely as a part of his duty. The DCP area
is also to ensure that investigation against PW5 Sahansar Pal must be entrusted to the Police Officer other than Sub Inspector D.L. Sharma.
In view of my above finding as the prosecution has failed to prove its case against accused persons beyond reasonable doubts Therefore all
five accused persons are acquitted of their charge by giving them benefit of doubt. They all are set at liberty. Their bail and surety bonds are
cancelled and sureties are discharged. A copy of this judgment be sent immediately to D.C.P. Concerned for immediate action.
Learned Counsel attacked the above directions and submitted that the trial court was apparently prejudiced by the so-called attitude displayed
by the petitioner in not supporting the prosecution case. It was urged that the order was both procedurally improper and legally unsustainable.
Learned Counsel strenuously urged that once the prosecution had completed the investigation, filed charge-sheets leading to framing of charges, in
which the petitioner had not been arrayed as an accused, the impugned directions virtually over-reached the law and imported a procedure
unknown to the law.
It was contended that the prima facie opinion formed by the trial court was based primarily on prejudice rather than appreciation of the law; the
accused in the case were acquitted and there can be no case of conspiracy or abetment. As far as the observation of the trial court that the
petitioner could be guilty of the offences, it was contended that the facts of the case do not support such a conclusion even on a prima facie basis.
The prosecution, after due deliberation and collection of materials did not deem it appropriate to name the petitioner as an accused; even the court
during the course of the proceedings did not deem it appropriate to take the course available to it u/s 319 Cr.P.C.
Learned Counsel for the respondent State submitted that even though the trial court''s conclusions about the necessity to take some action
against the petitioner might be warranted it acted beyond its jurisdiction in issuing the impugned directions. Counsel contended that having
concluded that the petitioner improperly or illegally did not support the version of the prosecution, the proper course would have to be to adopt the
procedure u/s 344 Cr.P.C. Learned Counsel relied upon the judgment of the Supreme Court reported as The State of West Bengal and Others
Vs. Babu Chakraborty, , where on similar facts the Court had observed that the trial Court was required to issue notice, before making such
orders.
The basic facts, leading to the prosecution are not in dispute. All the accused persons stood trial and were acquitted after due appreciation of
the materials on record. The petitioner was one among the witnesses cited by the prosecution. In the opinion of the trial court, he unjustifiably
resoled from an earlier statement made u/s 161 Cr.P.C. While in given situations, the course of action that may best commend to the court seized
of the matter might be to take action against the witnesses, who perjure themselves or state falsehood, nevertheless the procedure prescribed by
the law has to be followed. In this case, unfortunately, the Court has strayed beyond the confines of Section 344 and proceeded to straightway
indict the petitioner.
As far as the conclusions/prima facie view expressed in para 29 concerned, I am of the view, in the peculiar facts of the case that all the
accused having stood trial after a properly conducted investigation and a Court having framed charge and on no earlier occasion found it necessary
to seek recourse to Section 319, it would not be appropriate or in the interest of justice to direct the petitioner to stand trial, after this length of
time.
In view of the above reasons, the following directions are issued:
(i) The directions contained in para 29 of the impugned order are hereby set aside;
(ii) The matter is remitted for fresh consideration by the learned Additional Sessions Judge on the appropriate course of action to be taken,
including u/s 344 Cr.P.C. in accordance with law. In case the court is of the opinion that further action is necessary, in the first instance, it shall
issue notice to the petitioner and proceed to pass appropriate order after due hearing.
The petition is allowed partly and in the above terms.
No costs.