JUDGMENT
J. Chelameswar, C.J.
1. While hearing the WP (C) No. 1175/06, on 15.6.07, this court was troubled to take note of an allegation that a Sessions case No. 38/03 on the file of the Sessions Judge, Golaghat, wherein the accused, a police officer, was charged with the offence Under Section 302 IPC, was still pending. It was brought to the notice of this court that the offence took place on 20.8.99. If the allegations made in the writ petition are to be true, the process of law took eight long years without bearing any fruit. After passing an appropriate order in the said writ petition on the above mentioned date, one of us (Hon’ble the Chief Justice) thought it fit to verify on the administrative side as to why the said Sessions Case was pending for such a long time, more particularly, in the background of the fact that the accused is a police officer and the offence is alleged to have taken place in a Cinema Hall where hundreds of people were present. It was informed by the Registry a couple of days later that the Sessions Case stood disposed of by a Judgment dated 5.4.06 and the sole accused was acquitted.
2. In order to satisfy the conscience of the court, records of the Sessions Case were called for on the administrative side. To the horror of this court, it was noticed that a Sessions Case of this nature was disposed of by a cryptic judgment running into two pages. It was also observed that though as many as 10 witnesses were examined, testimony of not even a single witness, except the evidence of PW-8, was discussed by the learned Sessions Judge. Therefore, an order on the administrative side was passed directing the matter to be placed before this Court on the judicial side in exercise of powers Under Article 227 of the Constitution of India. Accordingly, the present revision was placed before this court.
3. By an order dated 26.6.07 for the reasons recorded therein, we though it fit to examine the legality and propriety of the Judgment of the learned Sessions Judge in the above mentioned Sessions Case and we directed notices to be issued to the respondents. Subsequently, the matter was listed on 17.7.07. Though the 1st respondent was represented by Mr. A.C. Buragohain, learned Addl. Advocate General, it was brought to our notice that the 3rd respondent, the accused, was not yet served by then. Therefore, by the order dated 17.7.07; we directed the District Magistrate, Golaghat to cause service of notice of pendency of the present revision on the 3rd respondent.
4. The matter again was listed on 6.8.07. The learned Addl. Advocate General placed an affidavit of Shri Dipak Kumar Goswami, the Deputy Commissioner, Golaghat dated 3.8.07, wherein he stated on oath that in pursuance of the orders of this court dated 17.7.07 the 3rd respondent was served. The 3rd respondent did not choose to appear and contest the matter.
5. The unfortunate victim was a youth of 18 years, who went to watch a cinema in a theatre called ‘Urvashi’ Cinema Hall” at Golaghat Town on the fateful 18th day of August, 1999. It was a morning show scheduled to commence at 10.30 A.M. It is rather difficult to describe how exactly the incident took place as neither the Judgment under revision gives any description of the incident nor the prosecution examined any eye witness. The FIR which is marked as Ext-1 was lodged by PW-1 posting the Golaghat Police Station with information that about 11 A.M. on 20.8.99 a youth by name Ranjan Nath was fired at by unidentified assailant and the youth later died. Further particulars of investigation are not examined by the learned Sessions Judge nor placed on record and the Judgment. The only information available from the Judgment is that a charge sheet was received by the learned Chief Judicial Magistrate, Golaghat on 22.10.02 and later the case was committed to the Court of Sessions by an order dated 13.2.03. The learned Sessions Judge did not even refer to the number of the Police Case from out of which the Sessions Case arose. From the record, it appears the crime was registered as Golaghat Police Station Case No. 119/99 Under Section 302 IPC read with Section 27 of the Arms Act on 20.8.99.
6. It appears from the Judgment of the learned Sessions Judge that on 4.4.03 charges were framed on the perusal of the police report Under Section 302 IPC and Section 27 of Arms Act.
7. The learned Sessions Judge did not even extract the charges framed against the accused. From the original record, we noticed that the charges were framed by a different Sessions Judge than the one who tried the case. The charges were in fact framed by one Shri K. Sarma, the Sessions Judge, Golaghat on 4.4.03. Two charges were framed against the accused-
(i) That you on 20.8.99 at about 11 A.M. did cause death of Ranjan Nath in front of Urvashi Cinema Hall by shooting him with a pistol bearing No. 16120790 with the intent to kill him and thereby committed an offence punishable Under Section 302 IPC.
The second charge reads as follows-
That you on the aforesaid date, time and place did illegally possess one 9 mm brawling service pistol bearing No. 16120790 and thereby committed an offence punishable Under Section 27 of the Arms Act.
8. It is difficult to understand as to what is the basis on which the learned Sessions Judge framed the above-mentioned charges. From an examination of the charge sheet (final report submitted Under Section 173 of the Cr.P.C); we do not find any material or allegation that the accused was in possession of one 9 mm browning pistol bearing No. 16120790. In the absence of any such information, the question whether the possession of such a pistol was legal or illegal Under Section 27 of the Arms Act does not arise. Apart from that we do not understand as to what is the basis on which the learned Sessions Judge framed the 1st charge alleging that the accused shot the deceased Ranjan Nath with a pistol bearing No. 16120790. On the other hand, the Case diary submitted to the Court by the police maintained Under Section 172 of the Cr.P.C; disclose that on 22nd August, 1999, the Investigating Officer recorded the statement of the Armour Havaldar Sri Debeswar Deowrah of Magazine Guard, Police Reserve, Golaghat Under Section 161 of the Cr.P.C. in connection with the crime in question. The said Armour Guard was eventually examined as PW 5 during the course of the trial. In the statement said Armour Guard (PW 5) categorically stated that on 19.8.1999 accused Arun Kurmi was issued a pistol bearing No. 162363901 and further stated that accused Arun Kurmi returned the above mentioned pistol bearing No. 162363901 on 20.8.1999 at about 1 P.M.
9. Interestingly, in the final report neither the Investigating Officer specified this fact, which is very relevant in view of the facts that the offence occurred on 20.8.1999 at 10.30 morning and that the Investigating Officer though it fit to put up the accused for trial and more interesting part is that the learned Sessions Judge, who framed two charges gave a different number of the pistol, which was alleged to have been used by the accused for killing the deceased Ranjan Nath. We simply fail to understand where from the learned Sessions Judge, who framed the charges, gathered that information that the accused used the pistol bearing a number specified in the charges framed against the accused. On the other hand, as already noticed, the statement of Debeswa Deowarh, Arms Issue Register were available on record clearly indicating the number of the pistol, which was issued by the Magzine Guard to the accused on 19.8.99 and in the possession of the accused till 1.00 P.M. of 20.8.99.
10. From the above, we can draw the following as conclusions.
i) That the Investigating Officer, Sri Arun Kumar Sahu, conducted an absolutely shabby investigation. The final report submitted by him appears to be a calculated move to help the accused than to establish the truth in a serious crime Under Section 302 of the IPC.
ii) The other inference which we can draw is that the learned Sessions Judge, who framed the charges (K.Sarma) deliberately gave a wrong number of the pistol for the reasons best known to him which are required to be probed into in an appropriate proceeding or in the alternative did not apply his mind at all while framing the charges.
11. Chapter XVIII of the Code of Criminal Procedure deals with the procedure that is required to be followed by the Sessions Court in conducting the trial of a case. Under Section 226 of the Cr.P.C. the prosecutor is required to open his case by describing the charge brought against the accused and also indicate the evidence by which the prosecution proposes to prove the guilt of the accused. Under Section 227 of the Cr.P.C. the Sessions Judge is obligated to decide on the basis of the materials produced before him and the submissions made on behalf of the prosecution as well as accused whether there is sufficient ground for proceeding against the accused and in case the Sessions Judge comes to a conclusion that there is no sufficient material for proceeding against the accused, he is required to discharge the accused after recording his reasons for such a conclusion.
12. Under Section 226 of the Cr.P.C. it is stipulated that upon consideration of the materials produced before him and after hearing the submissions of the Public Prosecutor and also the submission of the accused if the Sessions Judge comes to a conclusion that there is sufficient ground for “presuming that the accused has committed an offence” he is mandated to frame charges in writing against the accused Under Section 228.
13. Framing of a charge is part of the process of trial under the Code of Criminal Procedure. The duty of the Judge trying the criminal case fell for the consideration of the Supreme Court in a Judgment (Ram Chancier v. The State of Haryana). At paragraph 2 of the Judgment, the Supreme Court quoted with approval a passage from an earlier Judgment of Andhra Pradesh High Court reported in ILR (1972) Andh Pra 683)], which is as follows:
Every Criminal trial is a voyage of discovery in which truth is the quest. It is the duty of a presiding judge to explore every avenue open to him in order to discover the truth and to advance the cause of justice.
In the same paragraph the Supreme Court observed as follows:
The adversary system of trial being what it is, there is an unfortunate tendency for a judge presiding over a trial to assume the role of a referee or an umpire and to allow the trial to develop into a contest between the prosecution and the defence with the inevitable distortions flowing from combative and competitive elements entering the trial procedure. If a criminal court is to be an effective instrument in dispensing justice, the presiding judge must cease to be a spectator and a mere recording machine. He must become a participant in the trial by evincing intelligent active interest by putting questions to witnesses in order to ascertain the truth.
If that is the law declared by the Supreme Court, we fail to understand as to how the Sessions Judge, who framed the charges, acted consistently with the requirements of his duty in framing the charges in the present case in the background of the evidence placed before him by the police.
14. The most interesting part of the case is that in spite of all the shortcomings either designed or otherwise, the following facts came on record at trial. That an empty cartridge of 9 mm pistol with inscription at the bottom “9 MM 2Z 0.K 97” was recovered at the sense of offence on 20.8.99 and seized by the Investigating Officer (PW-10) which was also in due course of time was sent to the Ballistic Expert (PW8). Apart from that the Armour Guard Hav.Debeswar Deowrah (PW 5) stated that he (PW 5) issued a 9 MM pistol and 12 No. of bullets on 19.8.99 to the accused. He further stated that the accused returned the weapon issued to him on 20.8.99. PW 5 also proved the Arms Issue Register of Golaghat Police Reserve. Various relevant entries of the same were marked by the learned Sessions Judge as Ext. 4(1), 4(2), 4(3) and 4(4). From the original Arms Issue Register which was marked as Ext. 4, we find that the entries marked as Ext. 4(2) indicates that the accused was issued with a weapon bearing No. 16236901. It also appears from Ext. 4 that the weapon bearing No. 16120790, which was mentioned in the charges against the accused to have been used by him for the commission of the offence under trial was not issued to any person on 19.8.99.
15. On the other hand, the Ballistic Expert’s reports, which were before the Sessions Judge marked as Exts 9 and 10 at the time of trial and available even at the time of framing of the charges clearly indicate that the firing pin impression on the test cartridge fired through the pistol bearing No. 16236901, which was referred to by the Ballistic Expert in the report marked as Ext B2, was found to be similar to that of the firing pin impression found in the empty cartridge recovered from the scene of offence.
16. In this background of the materials, the learned Sessions Judge chose to give the benefit of doubt to the accused.
17. We must place our profound dissatisfaction with the State of affairs. The conduct of the Investigating Officer is wholly insincere perhaps the attempt was to save an Officer of the Department. Coming to the conduct of the judicial officers, who framed the charges and conducted the trial, to say the least, totally falls short of the conduct expected of a judicial officer in conducting the trial of a criminal case. We have already noticed the decision of the Supreme Court explaining the role of ajudicial officer in conducting of a criminal trial.
18. The Supreme Court, once again, in (Zahira Habibulla II. Sheikh and Anr v. State of Gujarat and Ors.) elaborately discussed the role of a Court in Conducting the criminal trial. At paragraph 35, the Supreme Court held as follows:
This Court has often emphasized that in a criminal case the fate of the proceedings cannot always be left entirely in the hands of the parties, crimes being public wrongs in breach and violation of public rights and duties, which affect the whole community as a community and are harmful to the society in general. The concept of fair trial entails familiar triangulation of interests of the accused, the victim and the society and it is the community that acts through the State and prosecuting agencies. Interests of society are not to be treated completely with disdain and as persona non grata. Courts have always been considered to have an overriding duty to maintain public confidence in the administration of justice-often referred to as the duty to vindicate and uphold the “majesty of the law”. Due administration of justice has always been viewed as a continuous process, not confined to determination of the particular case, protecting its ability to function as a court of law in the future as in the case before it. If a criminal court is to be an effective instrument in dispensing justice, the Presiding Judge must cease to be a spectator and a mere recording machine by becoming a participant in the trial evincing intelligence, active interest and elicit all relevant materials necessary for reaching the correct conclusion, to find out the truth, and administer justice with fairness and impartiality both to the parties and to the community it serves. Courts administering criminal justice cannot turn a blind eye to vexatious or oppressive conduct that has occurred in relation to proceedings, even if a fair trial is still possible, except at the risk of undermining the fair name and standing of the judges as impartial and independent adjudicators.
The Supreme Court observed at paragraph 43 as follows:
The Courts have to take a participatory role in a trial. They are not expected to be tape recorders to record whatever is being stated by the witnesses. The court cannot afford to be wishfully or pretend to be blissfully ignorant or oblivious to such serious pitfalls or dereliction of duty on the part of the prosecuting agency. The prosecutor who does not act fairly and acts more like a Counsel for the defence is a liability to the fair judicial system, and courts could not also play into the hands of such prosecuting agency showing indifference or adopting an attitude of total aloofness.
19. Coming to the conduct of the Judicial Officer, who recorded the evidence and delivered the Judgment, he ought to have clearly noticed the mistake that was committed while framing the charges in the light of the evidence of the Ballistic Expert (PW8) and his reports marked as Exts. 9 and 10 and also the evidence of PW 5 the Armour Guard Hav. Debeswar Deowrah and the contents of Ext. 4, the Arms Issue Register. Even at the stage of examination of the accused Under Section 313 of the Cr.P.C., the learned Sessions Judge, who had by then recorded the evidence of Ballistic Expert (PW 8) and Ext. 4, the Arms Issue Register, persisted in calling upon the accused to explain the allegation that the accused shot the deceased with pistol being No. 16120790. Section 216 of the Code of Criminal Procedure authorizes the Sessions Judge conducting the trial to alter the charges at any time before pronouncement of the Judgment of course subject to the safeguard provided in favour of the accused under the same Section. In our view, the learned Sessions Judge in the interest of justice and in discharge of his duty to arrive at the truth should have altered the charges framed in view of the evidence already recorded.
20. For the abovementioned reasons, we are of the clear opinion that there is a total miscarriage of justice by virtue of the judgment under revision.
21. Such a conclusion of ours necessarily gives rise to a question as to what are the consequences and the permissible course of action available to this Court while exercising the revisional jurisdiction Under Section 397 of the Cr.P.C. Section 401 of the Cr.P.C. describes the powers of this Court in exercising the jurisdiction Under Section 397 of the Cr.P.C.
22. It is a settled position of law that this court would not normally interfere in exercise of its revisional jurisdiction with an order of acquittal. However, where the High Court finds a manifest illegality or gross miscarriage of justice, the exercise of its revisional jurisdiction is held to be justified. The Supreme Court in (K. Chinnaswamy Reddy v. State of Andhra Pradesh) after taking note of an earlier decision of the Supreme Court reported in D. Stephens v. Nosibolla in this regard held as follows:
It is true that it is open to a High Court in revision to set aside an order of acquittal even at the instance of private parties, though the State may not have thought it fit to appeal; but this jurisdiction should in our opinion be exercised by the High Court only in exceptional cases, when there is some glaring defect in the procedure or there is a manifest error on a point of law and consequently there has been a flagrant miscarriage of justice. Sub-section (4) of Section 439 forbids a High Court from converting a finding a acquittal into one of conviction and that makes it all the more incumbent on the High Court to see that it does not convert the finding of acquittal into one of conviction by the indirect method of ordering retrial, when it cannot itself directly convert a finding of acquittal into a finding of conviction. This places limitations on the power of the High Court to set aside a finding of acquittal in revision and it is only in exceptional cases that this power should be exercised. It is not possible to lay down criteria for determining such exceptional cases which would cover all contingencies. We may however indicate some cases of this kind, which would in our opinion justify the High Court in interfering with a finding of acquittal in revision. These cases may be: where the trial court has no jurisdiction to try the case but has still acquitted the accused or where the trial court has wrongly shut out evidence which the prosecution wished to produce, or where the appeal court has wrongly held evidence which was admitted by the trial court to be inadmissible, or where material evidence has been overlooked either by the trial court or by the appeal court, or where the acquittal is based on a compounding of the offence, which is invalid under the law.
To the same effect, the Judgment of this Court rendered in a case reported in AIR 1956 Assam 170 (Maidhandas Agarwalla v. Sri Charan Barua) and the Judgment of the Andhra Pradesh High Court (Thadi Narayan v. The State of Andhra Pradesh).
23. In view of our conclusion that there was gross miscarriage of justice in this case, we deem it appropriate to set aside the Judgment under revision and remit the matter back to the Sessions Court at Golaghat for a fresh trial of the accused. The Sessions Court is further directed to frame appropriate charges in the light of this order and on the basis of the material, which is already in existence and on record of the court.
24. We must also place on record that we are of the opinion that everything went wrong with the investigation and trial of the sessions case. Further the respondents-State never though it fit to examine the feasibility of preferring an appeal against the Judgment of the Sessions Court until this Court suo motu took notice of the matter. After the notices were issued in the present revision, the State pretends to have examined the matter and claims to have filed an appeal, which is yet to be numbered. We are informed that such an appeal was filed with an application to condone the delay in preferring the appeal. In view of the order passed today, nothing survives in the appeal alleged to have filed by the State.
25. We must place on record our disgust of the laxity in the matter of enforcement of criminal law by the various persons responsible for the enforcement of law, be it the Investigating Officer or the District Magistrate or the Public Prosecutor concerned. We direct the chief Secretary to examine the cause for such laxity and take appropriate action against all those persons who are found responsible for such failure and report to this Court within a period of eight weeks from today.
26. Coming to the conduct of the Investigating Officer, we are of the firm opinion that the Officer, Aran Kumar Sahu, who conducted the investigation (PW 10) totally failed to discharge his duties in conducting the investigation. His continuance in service, in our prima facie view, would be detrimental to the interest of the society. We direct the Chief Secretary to take appropriate action against the Officer within 8 (eight) weeks from today.
27. We further direct the Registry of this Court to place a copy of this order before the High Court on the Administrative Side for the purpose of taking appropriate action against both the Judicial Officers.
28. We must place on record our appreciation for the invaluable assistance rendered by Sri D.K. Mishra, Senior Advocate, who was called upon to assist this Court in conducting the present revision. We must place on record our appreciation of not only the ability of the learned Senior Counsel but also the commitment exhibited by the learned senior Counsel in assisting the Court.
29. We direct the Registry to prepare a duplicate set of all the papers i.e., each of the documents from the trial court i.e., the charge sheet along with the documents annexed thereto including the 161 statement recorded by the Investigating Officer dully authenticate each of those copies and keep the same in the custody of the Registrar General until further orders of this Court. The original records are directed to be returned to the Sessions Court at Golaghat for the purpose of fresh trial as directed after preparation of the duplicate set of papers as indicated above is completed.
30. Copy of this order be furnished to Mr. A.C. Buragohain, learned Addl. Advocate General, Assam immediately.
