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The State Of Bihar v. Chandra Bhanu Som And Others
Structured Summary of the Opinion
Factual and Procedural Background
The prosecution case arose from the Far-beyan of Sanjay Malviya and was registered as Deoghar P.S. Case No. 238 of 1997 (G.R. No. 620 of 1997) for an offence under Section 302/34 IPC concerning the death of Nunu Malviya on 9-10-1997. The prosecution alleged that during Durga Puja at Durgabari, Bela Bagan, Deoghar, Chandra Bhanu Som (an IAS officer) conspired with local persons and mobilised anti-social elements so as to disturb the Puja and to re-claim ancestral land donated to the Durga Puja Samity; as part of that conspiracy, local accused persons allegedly killed Nunu Malviya.
The police submitted a charge-sheet against several accused persons but did not charge-sheet Chandra Bhanu Som. During trial (Sessions Trial No. 66 of 1998), after prosecution evidence (12 witnesses were examined), on 11-1-2000 the State filed a petition under Section 319 CrPC seeking to summon Chandra Bhanu Som to face trial along with the other accused. The learned 3rd Additional Sessions Judge, Deoghar, on 24-1-2000 rejected that petition, holding that no prima facie case under Section 120-B IPC (criminal conspiracy) was made out against Chandra Bhanu Som. Criminal Revision applications (Cr. Revn. Nos. 388/2000 and 520/2001 by the State and Cr. Revn. No. 369/2001 by accused Munna Singh) challenged the trial court's order; the revisional court affirmed the trial court's order and dismissed the revisions.
Legal Issues Presented
- Whether the trial court erred in refusing to summon Chandra Bhanu Som under Section 319 CrPC to face trial alongside other accused persons.
- Whether there existed prima facie material to charge Chandra Bhanu Som with criminal conspiracy under Section 120-B IPC based on the prosecution evidence led at trial.
- Whether the revisional court should interfere with the trial court's exercise of discretion in refusing to summon an un–charge-sheeted person under Section 319 CrPC.
Arguments of the Parties
Prosecution / State (learned A.P.P.)
- The eye-witnesses (P.W. 8 and P.W. 9) deposed that Chandra Bhanu Som entered into a conspiracy with co-accused to disturb Durga Puja to grab the ancestral land, and thereby caused the murder.
- Because prosecution witnesses corroborated the role of Chandra Bhanu Som, he could be summoned under Section 319 CrPC even though he was not originally charge-sheeted; reliance was placed on Smt. Rukhsana Khatoon v. Sakhawat Hussain (2002) to that effect.
- The petition alleged that police did not charge-sheet Chandra Bhanu Som due to his position (an IAS officer), implying that absence of a charge-sheet does not preclude his summoning under Section 319 CrPC.
Petitioner Munna Singh (accused and filer of Cr. Revn. No. 369/2001)
- Although an accused in the trial, Munna Singh asserted he could also file a Criminal Revision; he relied on a decision reported in 1988 East Cr. Cases p. 463 (as cited) for that proposition.
- He supported the prosecution contention that P.W. 8 and P.W. 9 implicated Chandra Bhanu Som and that the trial court should have considered prosecution witness testimony in determining whether to summon under Section 319 CrPC.
Opposite Party Chandra Bhanu Som (learned counsel for opposite party)
- Contended that the informant's testimony and P.W. 9's deposition contained contradictions vis-à-vis statements under Section 161 CrPC; the prosecution evidence did not demonstrate an agreement or conspiracy involving Chandra Bhanu Som.
- Emphasised that there was no evidence showing Chandra Bhanu Som hatched a conspiracy to commit murder; the murder occurred near an electrical transformer, not at the Durgabari Mandap.
- Noted that office-bearers of the Durga Puja Samity (President, Secretary, Members) did not allege any attempt by Chandra Bhanu Som to disturb the Puja to re-claim land; the family had traditionally cooperated in Puja celebrations and the land had been donated by ancestors to the Samity.
- Submitted that Munna Singh's revision might have ulterior motives to dilute the case against the accused and delay trial; also highlighted that Chandra Bhanu Som had no criminal history while the other accused did.
- Argued that the trial court correctly applied the law, treating Section 319 CrPC sparingly and relying on Michael Machado v. C.B.I. (2000) which cautions about summoning un–charge-sheeted persons without sufficient material.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| 1988 East Criminal Cases p. 463 (as cited by Munna Singh) | Relied upon to support that an accused may file a Criminal Revision (citation given in the opinion: "1988 East Cr. Cases page 463"). | The opinion records that Munna Singh relied upon this decision to support his locus to file revision. The court did not rely on this precedent to alter the result; it noted the reliance but dismissed the revision on merits. |
| Smt. Rukhsana Khatoon v. Sakhawat Hussain, (2002) 10 SCC 661; AIR 2002 SC 2342; 2002 Cri LJ 2969 | Authority for the proposition that a person not originally charge-sheeted may nevertheless be summoned under Section 319 CrPC when prosecution witness evidence corroborates that person's role in the alleged occurrence. | The counsel for prosecution relied on this decision to contend that Chandra Bhanu Som could be summoned; the opinion records the reliance but ultimately found the prosecution evidence insufficiently corroborative (other than P.W. 8 and P.W. 9) and did not call for summoning. |
| Michael Machado v. C.B.I., (2000) 3 SCC 262; AIR 2000 SC 1127; 2000 Cri LJ 1706 | Principle that Section 319 CrPC is to be used sparingly; caution in summoning un–charge-sheeted persons without adequate prima facie material (as relied upon by the trial court). | The trial court relied on this decision in refusing to summon Chandra Bhanu Som; the revisional court accepted the trial court's application of this principle and found no illegality or ground to interfere. |
Court's Reasoning and Analysis
The court examined the prosecution evidence adduced at trial and the reasons given by the trial court for rejecting the State's Section 319 petition. The court's reasoning proceeded as follows:
- Review of Evidence: The court noted that only two prosecution witnesses (P.W. 8 and P.W. 9 — father and son) implicated Chandra Bhanu Som in a conspiracy; no other prosecution witnesses, including office-bearers of the Durga Puja Samity, corroborated that Chandra Bhanu Som sought to disturb the Puja to re-claim ancestral land.
- Nature and Location of Occurrence: The court observed that the murder took place near an electrical transformer and not at the Durgabari Mandap; therefore, the asserted connection between the Puja disturbance/land-grab motive and the actual place of occurrence was weak based on the record.
- Motive and Alternate Explanations: The court emphasised that the more plausible motive established on the record was previous enmity and pending criminal cases between the deceased and some accused persons arising from land brokerage business, which provided an alternative and locally-focused motive for the killing.
- Reliability and Corroboration: The court highlighted contradictions in P.W. 9's statements (difference between deposition and statement under Section 161 CrPC) and stressed the absence of corroboration for the conspiracy allegation except by P.W. 8 and P.W. 9. The court therefore found no direct evidence of an agreement or conspiracy involving Chandra Bhanu Som.
- Application of Legal Principles: The court reiterated that Section 319 CrPC should be used sparingly and that a prima facie case under Section 120-B IPC must exist before summoning an un–charge-sheeted person. The trial court had considered all 12 prosecution witnesses and concluded there was no such prima facie material; the revisional court found no illegality in that exercise of discretion.
- Scope of Revision: The court noted the limited scope of a revisional court in interfering with the trial court's order unless there is illegality or perversity. Finding none, the revisional court declined to interfere.
Holding and Implications
Holding:
All Criminal Revision Applications are dismissed; the impugned order dated 24-1-2000 passed by the learned 3rd Additional Sessions Judge, Deoghar, in Sessions Trial No. 66 of 1998 is affirmed.
Implications:
- Direct effect: The petition under Section 319 CrPC filed on behalf of the State to summon Chandra Bhanu Som to face trial along with other accused was correctly rejected by the trial court, and that rejection is upheld. Chandra Bhanu Som will not be summoned to stand trial alongside the co-accused on the basis of the present record.
- On precedent and broader law: The revisional court accepted the principle that Section 319 CrPC must be used sparingly (as applied by the trial court relying on Michael Machado v. C.B.I.) and found the trial court's detailed consideration of the 12 prosecution witnesses to be a proper exercise of discretion. The opinion does not purport to lay down a new principle of law; it affirms existing caution in summoning un–charge-sheeted persons absent adequate prima facie material.
- No new precedent: The court expressly treated the matter as one of fact and discretion with limited scope for revision, and thus did not set any novel legal precedent beyond affirming the trial court's application of settled principles.
Disposition: Petition dismissed.
1. The petitioners in all the three Criminal Revision applications, referred to above, are aggrieved and dissatisfied with the order dated 24th January, 2000, passed by the learned 3rd Additional Sessions Judge, Deoghar, in Sessions Trial No. 66 of 1998, whereby and whereunder, he has rejected the petition, filed by the prosecution to summon Chandra Bhanu Som (Opp. party No. 1 in Cr. Rev, Nos. 388/2000 and 520/2001 and Opp. party No. 2 in Cr. Rev. No. 369/2001) under Section 319 of the Code of Criminal Procedure (in short the Code”) to face trial along with other co-accused/opposite parties. Cr. Revn. No. 388 of 2000 has been preferred by the State of Bihar (Now Jharkhand) and Cr. Rev. No. 369 of 2001 has been preferred by accused Munna Singh whereas Cr. Revn. No. 520 of 2001 has been preferred by the State of Jharkhand through the Deputy Commissioner, Deoghar.
2. The case of the prosecution, which is based on the Far-beyan of Sanjay Malviya, registered as Deoghar P.S Case No. 238 of 1997 on 9th October, 1997 (G.R No. 620 of 1997) for the offence under Section 302/34 of the Indian Penal Code, is that on 9-10-1997 Durga Puja festival was being celebrated in the campus of Durgabari situated at Bela Bagan, Deoghar. The Puja was being organized by the local people. It is alleged that Chandra Bhanu Som (Opp. party No. 1 in Cr. Rev. Nos. 388/2000 and 520/2001 and Opp. party No. 2 in Cr. Rev. No. 369/2001), an I.A.S Officer in Gujarat Cadre, wanted to disturb the Puja in order to grab the land of Durgabari premises. He discussed with the local boys to create obstructions in Durga Puja. He also utilized anti-social elements of the locality, namely, accused Samir Sinha, Munna Singh, Pintu Singh and others. Nunu Malviya (deceased), brother of the informant, was active worker of Durga Puja Samity. Accused Samir Sinha, Pintu Singh, Munna Singh and others, belonging to same group, had implicated Nunu Malviya in several criminal cases and they also threatened him to be killed. As these accused persons are the local boys, hence the informant and his brother Nunu Malviya (deceased) did not care the threatening, given by them. On 9-10-1997 accused Munna Singh (petitioner of Cr. Rev. No. 369 of 2001), Samir Sinha, Sanjay Rajbanshi, Daya Sunder Verma, Shyam Sunder Verma, Vijoy Singh, Punchu Nand Burnwal and Lalan Kumar were waiting behind the Electrical Transformer on Jasidih-Deoghar Road at Bela Bagan. As there was disturbance in supply of electricity, Nunu Malviya had gone there, who was surrounded by these named accused. Samir Sinha and Pintu Singh caught hold of Nunu Malviya and on the order of Samir Sinha to kill Nunu Malviya, accused Munna Singh (petitioner of Cr. Rev. No. 369 of 2001) fired with his pistol from point blank range on the back of Nunu Malviya, Nunu Malviya on being injured fell down and died at Deoghar Sadar Hospital soon thereafter. The informant has alleged against the named accused persons that they with common intention to kill Nunu Malviya entered into a conspiracy, because of the enmity, and killed him. The police after investigation submitted charge-sheet against those accused persons. However, no evidence could be collected against Chandra Bhanu Som (Opp. party No. 1 in Cr. Rev. No. 388/2000 and 520/2001 and Opp. party No. 2 in Cr. Rev. No. 369/2001). After framing charges, prosecution examined 12 witnesses including P.Ws 8 and 9, who are father and son and have deposed that it was Chandra Bhanu Som, who entered into conspiracy with other co-accused, facing trial, to disturb the Durga Puja so that the land on which Durga Mandap was constructed and Durga Puja was being celebrated in each year and which was donated by his ancestors for the purpose, should be re-claimed by him. Both the witnesses have deposed that only to grab the ancestral land, donated to Durga Puja Samity, Bela Began, Deoghar, Chandra Bhanu Som disturbed the Puja and caused murder of the brother of the informant.
3. On 11-1-2000 a petition was filed on behalf of the State under Section 319 of the Code to summon Chandra Bhanu-Som to face trial along with other accused persons, facing trial in Sessions Case No. 66 of 1998. The learned 3rd Additional Sessions Judge, Deoghar, having heard both the parties, opined that no prima facie case of criminal conspiracy is made out against Chandra Bhanu Som and, accordingly, rejected the petition, filed on behalf of the prosecution.
4. Learned A.P.P as also the learned Counsel, appearing on behalf of Munna Singh (petitioner in Cr. Revn. No. 369 of 2001) have argued that the eye-witnesses have clearly deposed that Chandra Bhanu Som entered into conspiracy to cause murder of the brother of the informant, only to grab the land on which Durga Mandap has been situated and each year Durga Puja is being celebrated. Learned Counsel for the petitioner Munna Singh (Cr. Rev. No. 369 of 2001) has submitted that although he is an accused in this case but he can also file Criminal Revision and has relied on a decision, reported in 1988 East Cr. Cases page 463 (sic). It is submitted on behalf of the petitioners that the police did not submit charge-sheet against Chandra Bhanu Som only be cause he is an I.A.S Officer. The learned trial Court while rejecting the petition of the prosecution has considered certain paragraphs of the case diary and supervision note of the Sub-Divisional Police Officer, which are totally unwarranted for disposing of the petition, filed under Section 319 of the Code. The learned trial Court ought to have considered the evidences of all the witnesses in course of trial in the Court and then only would have considered the fact as to whether Chandra Bhanu Som has entered into conspiracy or not. P.W 8 and P.W 9 are the eye-witnesses, who have deposed that Chandra Bhanu Som (Opp. party) has hatched up conspiracy to cause murder of Nunu Malviya, as he was active worker of Durga Puja Samity.
5. Learned Counsel for the petitioners has relied upon a case, reported in (2002) 10 SCC 661 : AIR 2002 SC 2342 : (2002 Cri LJ 2969) (Smt. Rukhsana Khatoon v. Sakhawat Hussain) and submitted that accused, not charge-sheeted, can be summoned and arraigned as accused under Section 319 of the Code particularly when evidences of prosecution witnesses corroborate the role of the person in the alleged occurrence.
6. On the other hand, learned Counsel for Chandra Bhanu Som (Opp. party) has submitted that the informant Sanjay Malviya (P.W 9) has deposed that the land belongs to the ancestors of Chandra Bhanu Som, which was donated to the Durga Puja Samity. Allegation against Chandra Bhanu Som is that he was trying to capture the land and property of Durga Bari with the help of anti-social elements, who are accused, facing trial in this case. He has further deposed that Chandra Bhanu Som and the accused persons had threatened the deceased in the morning of the alleged occurrence. There was enmity in between the deceased and accused, facing trial, regarding land brokerage business and they have instituted cases against each other. The deceased was not any office bearer of the Durga Puja Samity, The office bearers of Durga Puja Samity have not alleged anything against Chandra Bhanu Som that he disturbed the Puja only to re-capture the land, where Durga Mandap is situated. P.W 9 has made contradictory statement, what he has stated before the Investigating Officer under Section 161 of the Code. The learned Court below has considered the evidence of all the 12 witnesses and rightly came to the conclusion that there is no sufficient material to summon Chandra Bhanu Som (Opp. party) under Section 319 of the Code, which is to be used sparingly and has relied upon a decision, reported in (2000) 3 SCC 262 : (2000 Cri LJ 1706 : (2000) 3 SCC 262 : AIR 2000 SC 1127) (Michael Machado v. C.B.I).
7. Learned counsel for Chandra Bhanu Som (opposite party) has submitted that there is no evidence or allegation against him regarding entering into conspiracy with the accused persons. There was no such agreement to commit murder of Nunu Malviya. Durgabari Mandap is not the place where Nunu Malviya was murdered rather it is near the transformer. Petitioner-Munna Singh, who is main accused in the case for causing murder of Nunu Malviya by shooting with his pistol, with an ulterior and mala fide motive has preferred Cr. Rev. No. 369 of 2001 so that complicity of the accused, facing trial may be diluted and the trial of the case be delayed. When there are two criminal revisions; one filed by the State of Bihar (now Jharkhand) and the other by the State of Jharkhand through the Deputy Commissioner. Deoghar, there was no occasion to file third Criminal Revision by the main accused-Munna Singh. Chandra Bhanu Som (opposite party) is not a criminal rather he is an I.A.S Officer who has got no criminal history. On the other hand, the accused, who are facing trial, have got their criminal history.
8. The motive of the alleged murder of Nunu Malviya, brother of the in formant, has been alleged that he was an active worker of Durga Puja Samity. Chandra Bhanu Som (opposite party) wanted to disturb the Puja only to grab the land, which was donated by his ancestor to the Durga Puja Samity. Only P.W 8 and his father P.W 9 (informant) have deposed that Chandra Bhanu Som (opposite party) had entered into conspiracy to cause murder of Nunu Malviya. None of the members or office-bearers of Durga Puja Samiti, Bela Bagan, Deoghar, has alleged that only to grab the land. Chandra Bhanu Som (opposite party) wanted to disturb the celebration of Puja and entered into conspiracy to cause murder of Nunu Malviya. There is no evidence that Chandra Bhanu Som (opposite party) has entered into conspiracy with the accused, facing trial in this case. None of the witnesses, except father and son i.e P.W 9 and P.W 8, has alleged anything regarding conspiracy hatched up by Chandra Bhanu Som (opposite party) to cause murder of Nunu Malviya. On the other hand, it is evident that there were criminal cases, pending in between the accused, facing trial in this case and the deceased, due to the land brokerage business at Deoghar.
9. Section 10 of the Indian Evidence Act provides that:
“Things said or done by conspirator in reference to common design.— Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to be so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it”. Section 120-B of the Indian Penal Code provides that:
“Punishment of criminal conspiracy.— (1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death (imprisonment for life) or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.
(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months or with fine or with both.”
10. In the present case, I find that there is no direct evidence of conspiracy hatched up by Chandra Bhanu Som (opposite party). The motive to cause murder of Nunu Malviya was only due to criminal cases, pending in between the deceased Nunu Malviya and the accused persons, who were on inimical terms. Chandra Bhanu Som used to come every year on the occasion of Durga Puja to celebrate the same. In the year of the alleged occurrence, there was some difference regarding construction of Thermocol Gate of Puja Pandal but that was solved amicably. The family of Chandra Bhanu Som are the trustees of the Puja Samiti. A Mandap has been constructed on it and each year Durga Puja is being celebrated therein. In view of this fact, I find that Chandra Bhanu Som (opposite party) and his family members co-operate with the Durga Puja celebration each year. The lands, of course, belong to their ancestors but that has been donated to Durga Puja Samity. None of the office-bearers i.e President, Secretary or Members of the Durga Puja Samity has alleged against Chandra Bhanu Som (opposite party) that he even tried to disturb Durga Puja celebration. Thus, I find that there is no connection regarding celebration of Durga Puja and the murder of Nunu Malviya, brother of the informant, which took place near the electrical transformer, situated towards south of Durgabari Gate on the road. Thus, the place of occurrence is not Durgabari Mandap. The informant in his Fard-beyan has alleged that due to previous enmity, after entering into conspiracy, all the named eight accused persons caused murder of his brother. He has stated that Chandra Bhanu Som (opposite party) only to grab the land, had threatened his brother and also took help of anti-social elements to disturb Durga Puja. This statement of the informant regarding conspiracy entered into by Chandra Bhanu Som with the accused, facing trial in this case, has not been corroborated by all the prosecution witnesses except P.W 9 and P.W 8, who are father and son.
11. The learned Court below has considered the evidence of all the twelve prosecution witnesses in detail and has opined that the allegation of giving threat by Chandra Bhanu Som to the deceased a day prior to the occurrence and in the morning of the day of occurrence is subsequent developments. He did not find any agreement or conspiracy entered into by Chandra Bhanu Som with the accused, facing trial in this case, and found that no prima facie case under S. 120-B of the Indian Penal Code is made out against Chandra Bhanu Som (opposite parry) and, accordingly, rejected the petition dated 11-1-2000, filed on behalf of the State.
12. In view of the evidence available on record and the impugned order, passed by the learned trial Court, I find that there is no illegality or irregularity in the impugned order under revision. There is limited scope before the revisional Court, while passing order in revision.
13. On the other hand, the learned Court below has considered the evidence of all the prosecution witnesses and passed the order, rejecting the petition. As such, the impugned order does not require any interference by this revisional Court.
14. Accordingly, all these Criminal Revision Applications are hereby dismissed and the impugned order dated 24-1-2000, passed by the learned 3rd Additional Sessions Judge, Deoghar, in Sessions Trial No. 66 of 1998, is hereby affirmed.
15. Petition dismissed.
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