| Headnote |
Constitution of India-Article 227-Power of superintendence of High Court-Scope-Trial of a large number of persons-Transfer of case to bigger Court with better arrangement-Whether High Court justified in exercising its plenary administrative power-Held, yes.Article 136--Scope of interference with concurrent findings of facts. Criminal Procedure Code, 1973-Secs. 326, 350, 216, 217-Transfer of case-Right of accused to claim a de novo trial-Transferee Court can exercise its judicial discretion only for further examination of a witness already examined and not for fresh examination of witnesses for a fresh trial.Secs. 154, 161, 162-FIR-Two incidents of rioting and murder-Investigation over the incidents started in the same night-Report lodged on the following morning could only be treated as a statement recorded in accordance with Sec. 161(3) of the Code and not as FIR-Admissibility of evidence of the witness.Indian Penal Code, 1860-Sections 148, 302/149, 436/149, 380 and 201/149-Offences of loot, arson and murder-Eye witnesses-A mob of 500/600 people, residents of different villages came to and attacked the neighbouring village to exterminate the Bind Community-Three appellants belonging to Yadav community came on horse back armed with fire arms and led the mob, chased villagers and committed murders-Their conviction for offences upheld.According to the prosecution due to some land dispute between some villages, about 30/40 members or the Yadav community, all resident of a neighbouring village came to the village and started abusing the Binds, firing from guns injuring some and went back holding out threat that all the members of the Bind community would be killed; that on the same day at about 1 P.M. a mob or about 600 Yadavs armed with weapons like guns, pistol, bhalas and lathis came some of them on horse back and attacked Mind Tolls of the village; that the mob resorted to looting cash, cloth, grain, ornament and cattle and then setting to fire the houses of the inhabitants there, some of the members of the mob chased the villagers who were trying to Dee away towards the River and when these persons tried to escape on boats the miscreants fired at them, brought them down from the boats and then dragged them to the river and threw them there; that the three appellants had come no horse back with guns, led the mob and were active participants in the ravage; that on getting information a police posse went there the same night and PW96, an Inspector of Police, took up investigation of the cases registered over the first incident and on the following morning he also took up investigation of the second incident. The dead bodies of six out of the nine killed were recovered. Over the first incident, a charge sheet was submitted against six accused persons u/ss. 147, 148 and 149/307 IPC and Section 27 of the Arms Act. In respect of the second incident also two cases were registered, one in the same night u/ss.148, 149/302, 201, 436 and 320 IPC and the other on the following morning u/ss. 302/149, 307, 380, 436, 147, 148, 149, 201 and 1208 IPC and Section 27 of the Arms Act. These two cases ended in a charge sheet against 152 accused persons, including the three appellants and some absconders.The cases committed to the Court of Sessions were transferred to the 10th Court for trial and after amalgamation of two cases charges were framed against the six accused. Both the cases were then transferred to the 5th Court of Addl. Sessions Judge of trial as a petition was filed by some of the accused persons stating that when the Sessions Trial was taken up by the 10th Court for hearing on the question of framing of charges all the accused could not be accommodated in the dock meant for them as a result of which some of them had to remain outside and that one of the accused lying seriously ill, brought on a cot had to be kept on the verandah of the court room and that the court was so crowded that clerks of the lawyers were not allowed to enter and in fact the lawyers themselves had to carry the records. While disposing of this petition the 5th Court recorded an order that to avoid all sorts of infirmities and irregularities the charges against all the accused including two of the absconding accused who had surrendered in the meantime would be framed afresh. Pursuant to this order now charges u/ss. 364/149 and 201/149 IPC were added and three absconding accused persons who had surrendered since the charges were framed by the previous Court, were also arrayed in the charges. All the four witnesses who had earlier been examined, cross examined and then discharged by the 10th Court for further cross examination, were directed to be examined afresh considering that they were not examined in the presence of all the 140 accused as three of them had surrendered after their evidence was recorded. A revisional application filed against this order was disposed of by the High Court with a direction that in case the defence applied to cross examine those four witnesses, the Court may order for their cross examination and in case the Court feels that any further evidence is essential for a just decision of the case, it may call them to the court. On conclusion of the trial the Court acquitted 78 of them and convicted and sentenced the other 60 in respect of all or some of the charges. Each of the three appellants was convicted u/Ss 120-B, 148, 302/149, 436/149, 380 and 201-149 IPC. On appeal, the High Court affirmed convictions of three appellants except for the offences u/ss 1208 IPC. Hence these appeals.The appellants contended that the trial which took place in the 5th Court was wholly without jurisdiction as the High Court had no power to transfer the case from the 10th Court to the 5th Court and that too by an administrative order at a stage when the trial had already commenced; that administrative power could not be exercised at a stage when judicial power was not only available and operational but was equally effective and efficacious; that having regard to the facts that the 5th Court had by its order decided to frame charges afresh against the accused persons, including those three who were later put on trial after their surrender and that pursuant thereto it framed charges and proceeded with the trial, the earlier trial conducted by the 10th Court must be held to have come to an end, and the evidence of the four witnesses who were examined therein could not be relied upon by the 5th Court for recording the impugned order of conviction and sentence; that once the trial Court had exercised its judicial discretion to hold a fresh trial, the High Court's interference with the same was not only impermissible in view of the embargo of Section 397 (2) of the Code but was also unsustainable on merits; that the evidence on record did not justify their convictions and that both the Courts below ought not to have taken into consideration and relied upon the evidence of P.C.P.W.I. as the same was inadmissible considering that the witness was permitted to refresh his memory from the report he lodged with the police in the morning which was treated as the F.I.R. of the second incident even though it could not be so treated as PW 96 had started investigation into the same the previous night and that the prosecution case so far as it related to the attack on the villagers when they were trying to flee away, on a boat was absolutely untrue for, even though the prosecution witnesses claimed that after capturing the boat and bringing the occupants down, the rioters fired at them their dead bodies were recovered from the River though those would have been found in Tisrasia Dhab itself and that the evidence of the eye witnesses who testified about the second incident was highly discrepant and untrustworthy and, therefore, it should not have been relied upon. |
