IN THE HIGH COURT OF JHARKHAND, RANCHI.
Cr. Rev. No. 97 of 2009
1.
Tilak Yadav
2.Biru Yadav
3.Krishna Yadav
4.Jago Sao @ Jageshwar Sao@Yogendra Prasad Sahu
………………………… Petitioners
Versus
The State of Jharkhand ……………………………………. Opp. Party
Coram :- Hon’ble Mr. Justice D.K. Sinha
For the Petitioners :- Mr. Jitendra . S. Singh
Mr. A.K. Pandey
For the State :- Mrs. Neetu Singh A.P.P.
C.A.V. On 19.1.2010 Delivered on 30-3-2010
ORDER
8- 30-3-2010 The instant Criminal Revision is directed against the
order impugned dated 27.11.2008 passed by the learned Sessions
Judge, Latehar in S.T. No. 122 of 2008 corresponding to G.R. No.
89 of 2006 arising out of Chandwa P.S. Case No. 23 of 2006 by
which the petition filed on behalf of the petitioners for their
discharge under section 227 of the Code of Criminal Procedure was
dismissed. The name of petitioner Dhananjay Nath Sahi was
deleted by the order of this Court dated 25.8.2009 on his death.
2. The prosecution story in short was that the
informant-Officer-in-charge of Chandwa police station recorded his
self statement on 26.2.2006 at about 17.30 hours narrating inter
alia that on telephonic message received that some extremists had
been assaulting the pilgrims who had arrived at ‘ Nagar temple,’ he
with the police party rushed there and enquired from the
shopkeepers about the occurrence and only from whom he could
gather that the extremists had taken away about 8/10 pilgrims
including one Lakhan Prasad Jaiswal with them to unknown place.
On such information the police party proceeded tracking the retreat
of the extremists but finding and spotting the police coming
towards them, the extremists resorted firing which was retaliated
by the police. Realizing the pressure of the police the extremists
escaped after releasing the persons who were abducted by them.
The police party intercepted various incriminating articles including
literatures, posters, hand bills and note books at some distance
besides utensils and empty cartridges to which seizure list was
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prepared in presence of the witnesses. The statement of the victim
Lakhan Prasad Jaiswal was recorded who narrated that he and
other 8/10 pilgrims were abducted from near the temple by the
extremists on the gun point and they alleged against Lakhan
Prasad Jaiswal that he was the spy of the police and that he was
brutally assaulted by them. He further apprised that Biru Yadav,
Krishna Yadav and Tilak Yadav had made arrangement of
breakfast and meal for the extremists and that they had been
supplying food to them. In the meantime, extremists escaped after
gun battle with the police party. He disclosed the complicity of
several accused persons as extremists, engaged in criminal
activities of abduction and other crimes, and also implicated the
petitioners Tilak Yadav,Biru Yadav, Krishna Yadav etc.
3. Mr. Jitendra S. Singh, the learned counsel for the
petitioners submitted that the petitioners were innocent and were
not at all concerned with the alleged offence. The counsel added
that the statements of several witnesses were recorded in
paragraph 99 of the case diary who were consistent that Lakhan
Prasad Jaiswal was on inimical term with the petitioners on the
ground of land disputes, that apart, disputes related to
management of ‘Nagar Temple’. The management of the said
temple was ultimately transferred in the name of deity with the
constitution of the trustee committee who looked after the interest
of the properties which were assigned in the name of deity. Mr.
Singh explained that the other victims, who were abducted, such
as Mohat Khan and Chandra Shekhar Pandey and other were also
examined and their statements were recorded as contained in
paragraphs 13,14 and 15 of the case diary, who were consistent
by not implicating the petitioners in any manner for their abduction
or otherwise also. However, the allegation that was left out against
the petitioners was that they had been supplying food to the
extremists (MC.C.) outlaws. As regards the complicity of the
petitioner Jago Sao @ Jageshwar Sao @ Yogendra Prasad Sahu
was concerned, there was no material at all against him except
his name was found mention in the note books which were
recovered by the police in course of investigation that he had
given certain amount to the extremists (M.C.C.) and for that the
petitioners cannot be held criminally liable for hatching a criminal
conspiracy against the Union of India. A person cannot be held
accused only on the ground that his name was mentioned in the
3
note book of the extremists as donor without any corroborative
evidence that he was seen by some witnesses delivering certain
amount to the M.C.C. people or their agent and therefore, criminal
prosecution of the petitioner Jago Sao @ Jageshwar Sao @
Yogendra Prasad Sahu would tantamount to misuse of the process
of the court.
4. Finally Mr Singh submitted with reference to the
Famous ‘Hawala Case’ reported in 1998(2) Eastern Criminal
Cases 196(SC). The Apex Court in Central Bureau of
Investigation Versus V.C. Shukla and others held :-
“Even if the entry becomes admissible as
relevant evidence, still the statement
made therein shall not alone be sufficient
evidence to charge any person with
liability unless their trustworthiness is
corroborated by independent evidence.
Entries are not “admissions” to attract
Section 21 of Evidence Act.”
5. The learned A.P.P. opposed the contention as raised
on behalf of the petitioners on the point of discharge for the
alleged offence proposed under sections 364/120B of the Indian
Penal Code and Section 17 of CLA Act.
6. Having regard to the facts and circumstances of the
case, I find that the allegation against the petitioners Tilak Yadav,
Biru Yadav and Krishna Yadav was of providing food to the
extremists (M.C.C) outlaws whereas the allegation against the
petitioner Jago Sao @ Jageshwar Sao @ Yogendra Prasad Sahu
was that his name was found mentioned in the note book which
was recovered from the hide-out of the extremists containing that
he was donor and had donated Rs.50,000/- to them. The learned
A.P.P. failed to point out any other material against the petitioners
in the entire case diary and therefore, on the face value of the
allegation I find that offence as alleged under section 364 read with
section 120B of the Indian Penal Code is not attracted against the
petitioners Tilak Yadav, Biru Yadav and Krishna Yadav. However, in
the facts and circumstances of the case I find that there is prima
facie allegation against the petitioners under section 17 of the CLA
Act which is triable by the Judicial Magistrate, Ist Class. Similarly,
no prima facie offence is made out against the petitioner Jago Sao
@ Jageshwar Sao @ Yogendra Prasad Sahu for the said offence
only because his name was found mentioned in the note book of
the Naxalities (M.C.C.) out laws as profounded by the Supreme
4
Court of India in Famous ‘ Hawala Case’ referred to herein before.
In the facts and circumstances, the criminal prosecution of the
petitioner Jago Sao @ Jageshwar Sao @ Yogendra Prasad Sahu,to
that I subscribe the submission of the counsel, would tantamount
to misuse of the process of the court as the entry of the name of
the petitioner Jago Sao @ Jageshwar Sao @ Yogendra Prasad Sahu
made in the note book is not admissible under the Evidence Act.
Accordingly, the petitioner Jago Sao @ Jageshwar Sao @ Yogendra
Prasad Sahu is discharged from his criminal liability in Chandwa
P.S. Case No. 23 of 2006 corresponding to G.R. No. 89 of
2006(S.T. No. 122 of 2008) pending in the court of Sessions
Judge, Latehar .For the reasons stated above, I find that prima
facie offence is made out under sections 17 of the CLA Act against
the petitioners Tilak Yadav,Biru Yadav and Krishna Yadav and
accordingly they are directed to be proceeded under such section
which is triable by the Judicial Magistrate of Ist Class.
7. With this observation this Criminal Revision is allowed
in part in the manner indicated above and accordingly, the learned
Sessions Judge, Latehar is directed to proceed under the provision
of Section 228(1)(a) Cr.P.C. by transferring the case records of
concerned to the court of CJM, Latehar.
(D.K. Sinha, J)
SD