Tahir @ Yunus @ Pilla vs State of Haryana

R.L. Anand, J.

By this order I dispose of Criminal Appeal No. 591SB of 1997 titled Tahir @ Yunus @ Pilla v. State of Haryana and Criminal Appeal No. 627SB of 1997 titled State of Haryana v. Akhtar and others as both the appeals have arisen from the judgment and order dated 24.4.1997 passed by the Court of Judicial Magistrate Ist Class, Ferozepur Jhirka, who convicted Tahir alias Yunus alias Pilla under Section 394 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for three years.

Before I proceed further, I may mention that the Judicial Magistrate Ist Class, Ferozepur Jhirka tried four persons in case F.I.R. No. 243 dated 18.6.1996 under Sections 394/411 of the Indian Penal Code, Police Station Hathin. Those persons were Akhtar alias Iqbal, Jamil alias Sakil, Isriel and Tahir alias Yunus alias Pilla. Jamil alias Sakil was acquitted by the trial Court while Akhtar alias Iqbal, Isriel and Tahir alias Yuuns alias Pilla were convicted and sentenced. Akhtar alias Iqbal and Isriel did not file any appeal but Tahir alias Yunus alias Pilla has filed appeal No. 591SB of 1997.

The facts can be described in the following manner :

On 17.6.1996 Dinesh Kumar complainant gave a statement at Police Station Pingawa that on the relevant day at about 10.30 P.M. he along with Narain Singh was returning from Faridabad to Pingawa on scooter No. DL7SA/8696. He was driving the scooter and Narain Singh was sitting on the pillion seat. When they reached at a distance of about one kilometre ahead of village Sikrawa, he was intercepted by four young persons, who were wearing peant shirts and were speaking Mewati language. One of them was being addressed by the others as Akhtar and they were on unnumbered motorcycle make Rajdoot armed with lathis made of eucalyptus tree branches and when the complainant was crossing them, all of them gave blows with the lathis on his forehead and other parts of the body. They stopped the scooter and one of them took out a knife and placed it on the chest of the complainant in order to frighten him and the remaining three persons snatched Rs. 1500/ which were lying in the pocket of the complainant. The complainant was also deprived of a wrist watch make Titan. These four persons also robbed Narain Singh of Rs. 250/ and the wrist watch make HMT. The young person, who was holding the knife and whose name was Akhtar can be identified by the complainant if brought before him. After robbing the complainant and Narain Singh they all left the place of occurrence on the motorcycle. ASI Tara Chand conducted the investigation and registered the case. He recorded the statements of the PWs and got the complainant medically examined. The accused were arrested on 4.7.1996 and a knife and a motorcycle were recovered from them and were taken into possession vide recovery memo. On the completion of the investigation of the case, accused were challaned in the Court of Illaqa Magistrate.

On 24.4.1996 learned Magistrate framed charge under Section 394 read with Section 34 of the Indian Penal Code against the accused. It was read over and explained to them to which they pleaded not guilty and claimed trial.

On 22.4.1997 all the accused desired that their statements may be recorded. The learned Magistrate recorded the statements of the accused. In his statement accused Akhtar stated that on 17.6.1996 at about 10.30 p.m. he was present in the area of village Sikrawa along with Jamil, Isriel and Tahir and they were having a motorbicycle Rajdoot bearing No. number plate and they grounded two persons riding on a scooter and robbed them of their watches and currency notes amounting to Rs. 1500/ and Rs. 250/. Isriel in his statement stated that on the relevant date he along with Akhtar, Jamil and Tahir were at a distance of about one kilometre from Sikrawa and had a motorbicycle at that time. They grounded two scooterists and robbed them at knife point. Thereafter they enjoyed a film show. Tahir also made a statement but denied the presence of Jamil at the place of occurrence. The statement of Jamil was also recorded by the learned Magistrate. Finally the learned Magistrate acquitted Jamil but convicted the present appellant and his two companions Akhtar and Isriel under Section 394 of the Indian Penal Code and sentenced in the manner stated above. Aggrieved by his conviction and sentence Tahir @ Yunus @ Pilla has filed the present appeal in the High Court instead of filing the same in the Court of competent jurisdiction. State also filed the appeal in the High Court praying for the enhancement of the sentence. Since the appeal of the State has come in the High Court according to law, hence I will take the appeal of the State.

On going through the record of this case, I am of the opinion that the learned Magistrate committed a patent illegality when he did not adopt the correct procedure. The offence under Section 394 was a warrant case instituted on the police report. Section 239 of the Code of Criminal Procedure lays down that if, upon considering the police report and the documents sent with it under section 173 and making such examination, if any of the acused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing. If the learned Magistrate does not discharge the accused in terms of Section 239 of the Cr.P.C., he is supposed to frame the charge under Section 240 of the Cr.P.C. and thereafter he is to record the plea of the accused. In this case the learned Magistrate decided to frame the charge against the accrued and their plea under Section 241 of the Cr.P.C. was also recorded. Once the accused denies the allegations of the charge, in that situation it was obligatory on the part of the Magistrate to record the full evidence of the prosecution as envisaged under Section 242 of the Code of Criminal Procedure, which lays down that if the accused refused to plead or does not plead, or claims to be tried or the Magistrate does not convict the accused under section 241, the Magistrate shall fix a date for the examination of witnesses. The Magistrate has not adopted this procedure. When the case was at the stage of the evidence, the learned Magistrate chose to record the confessional statements of the accused which were not permissible according to law because once the plea of the accused has been recorded denying the charge, the next stage for recording the statement of the accused was under Section 313 Cr.P.C. The trial Magistrate was bound to record the evidence of the prosecution till it is concluded either by the Public Prosecutor or it is closed under the orders of the Court. He could not leave the things in lurch nor he could acquit one of the accused namely Jamil.

In this view of the matter the appeal of Tahir @ Yunus @ Pilla stands allowed with the directions to the Magistrate to hold a de novo trial from the stage when he recorded the plea of the appellant/all the accused. He shall summon all the accused to appear before his Court including Jamil, who was since acquitted. Further, he will also summon those convicts, who have been convicted but have not appealed from the jail. The appeal of the State with the remand of the case has become infructuous. The learned DAG submits that the sentence awarded by the learned Magistrate was inadequate. The State will be at liberty to make a plea before the learned Magistrate if he decides to hold the accused guilty of the offence under Section 394 of the Indian Penal Code. At this juncture this Court cannot give any finding in favour of the State that the sentence imposed upon Tahir was inadequate as the entire trial has been reopened. Since I am remanding the case on a legal issue, therefore, I want to give the directions to the Magistrate that he shall enlarge all the accused on bail during the pendency of the trial which would be concluded by the Magistrate within one year from the receipt of the copy of this order.

Copy of this order be sent to the learned Magistrate through the Chief Judicial Magistrate concerned.

It has been informed to this Court that appellant is in custody. The Magistrate shall send the production warrant of appellant Tahir and his two companions, who are stated to be in custody. He will also send summons to the acquitted accused so that he may be able to face the trial afresh. His acquittal by the learned Magistrate was not proper in the given circumstances.

Nothing stated above shall bind the learned Magistrate to pass an appropriate order according to law.

Both the appeals stands disposed of.

Appeals disposed of.