UMESH CHARAN GHUSAIN Vs. STATE

JUDGEMENT

(1.) THIS is a criminal appeal against the judgment and order dated 10-2-2004 passed by the then Addl. Sessions judge/fast Track Court, Tehri Garhwal in sessions Trial No. 7 of 1996. State v. Umesh charan Gusain, whereby the Addl. Sessions judge has convicted the appellant under section 436 IPC and sentenced him to undergo RI for three years and to pay fine of rupees ten thousand. In default of payment of fine, the appellant shall further undergo ri for three months.

(2.) THE case of the prosecution, in brief, is that on 3-10-1994 at about 14. 15 pm, the Uttarakhand Sangharsh Samiti agitators tried to burn the unoccupied residential house of the District Judge, Old Tehri. It is also pertinent to mention here that the District Judge was not residing in the said house, since he had shifted to his new residence at New Tehri. When the S. D. M. came to know of the above incident, he immediately reached at the residence and made arrangements to extinguish the fire. The said information was given to the police station, tehri and a report was also lodged. Again on 4-10-1994, the agitators came at the unoccupied residential house of the district Judge, Old Tehri and set the house on fire. A report to this effect was also lodged by S. D. M. on phone to the police station. The prosecution case further reflects from the evidence that the accused appellant along with other persons came to the Court room of the District Judge, New Tehri on 27-9-1994, when the District Judge, New tehri was hearing a civil case bearing no. LA 2 of 1988, Shashi Bhusan v. State. During the course of the proceeding, the accused appellant appeared before the District Judge and stated that he is the president of the students' Union. The accused-appellant requested the District Judge to handover his old residence situated at Old Tehri to the students. The learned District Judge unequivocally stated that the property belongs to the High Court, hence shown his inability to provide the same to the students. The accused-appellant along with his another companions came out of the Court-room and stated in an intimidated manner that if the residence is not provided to them, they will see other methods to get the same. The prosecution has further alleged that on 4-10-1994, constables Suresh Chand PW8 and ombir Singh PW 10 were on the security duty at the residence of the District Judge, old Tehri. At about 12 noon, they saw that a procession of about 150 persons were coming from the side of the Ghantaghar to the unoccupied residence of the District Judge, situated at Old Tehri. The said procession was being headed by its leader Umesh charan Gusain, the present appellant. The persons who were in the procession, have bottles, canes and 'mashals' in their hands. They reached near the unoccupied residence of the District Judge, Old Tehri shouting slogans that if the said residence could not be provided to the students, then the district Judge would also not be allowed to retain this house. The eyewitnesses Suresh chand PW8 and Ombir Singh PW10 tried to intervene but the persons who were in the procession, started pelting stones upon them. Consequently, the eyewitnesses left the spot and the miscreants set the bungalow /residence on fire by throwing bottles filled with some liquids and 'mashals'. The eyewitnesses constables Suresh Chand PW8 and Ombir Singh PW10 immediately went to the house of the S. D. M. which is situated nearby the place of the unoccupied residence of the District Judge, but the S. D. M. had gone at the post office at that time. Thereafter, both the eyewitnesses went to the post office and narrated the entire incident to the S. D. M. The S. D. M. lodged a report in regard to the above incident on telephone in the police station at about 14. 15 p. m. on the same day. The matter was initially investigated by the regular police and a charge-sheet was submitted by the police against thirteen persons, including the present appellant.

(3.) IT is pertinent to mention here that during the above proceeding, a writ petition bearing No. 32982/1994 was instituted by the Uttarakhand Sangharsh Samiti before the Allahabad High Court in which the Court ordered that the matters pertaining to the atrocities committed on the volunteers of 'uttarakhand Sangharsh Samiti' would be investigated by the C. B. I. and separate courts would be set up for the trial of such cases. Pursuant to the said order of the division Bench of the Allahabad High Court, investigation was taken up by the CBI. Kishore Kumar, the Deputy Superintendent of Police, I. O. , CBI pursuant to the order of the Allahabad High Court, filed an application before the C. J. M. , Tehri on 5-5-1995 (i. e. Ex. Ka 18) seeking permission to investigate the case and also for getting the original documents/certified copies of the documents filed by the local police in the Court pertaining to the above matter. After completion of the investigation by the CBI, charge-sheet was submitted against the present appellant only, before the Court on 4-10-1995 (Ex. Ka 33 ). Consequent upon the orders of the High Court, the matter was tried/heard before a CBI Court, specially constituted under the orders of the Allahabad High court passed in the Civil Miscellaneous Writ petition No. 32982 of 1994. Meanwhile, an appeal was preferred by the State (U. P.) before the Hon'ble Apex Court against the final judgment and order of the Allahabad high Court in the Civil Miscellaneous Writ petition No. 32982 of 1994. The Hon'ble Apex court in the appeal preferred by the State (U. P.), set aside the order of the Allahabad high Court passed in the Civil Miscellaneous writ Petition No. 32982 of 1994 in toto and, the direction by the High Court for the establishment of the separate Courts was also not allowed to remain in force, on the ground that if such Courts are allowed to remain in force, it would create only confusion and provide room for pre-casting of the trials. For the ready reference, the said judgment of the Hon'ble Apex Court is reported in 1999 SCC (Cri) Page 580 : (1999 Cri LJ 3500)in the case of A. K. Singh and others v. Uttarakhand Jan Morcha and Others. After the quashment of the judgment of the Allahabad high Court by the Hon'ble Apex Court, the cbi moved an application before the Court concerned to remit the case to the Sessions judge having the jurisdiction for the trial of the case. The said application was allowed by Allahabad High Court and the matter was remitted to the Sessions Judge, Tehri which was later on transferred to Addl. Sessions judge, Tehri who was having the jurisdiction over the matter under the provisions of the Criminal Procedure Code.