AEJAZ ALAM Vs. STATE OF BIHAR

JUDGEMENT

(1.) THIS application under Sections 397 and 401 of the Code of Criminal Procedure, 1973 (in short "the Code') is directed against the judgment' and order dated 31 -8 -1998 passed in Cr. Appeal No. 59/94, by Shri Pradeep Kumar Singh, Additional Sessions Judge, Kishanganj whereby and where -under he upheld the judgment of conviction passed by Shri Bhuneshwar Ram, Sub Divisional Judicial Magistrate, Kishanganj against the petitioner under Sections 120 - Band 411 of the Indian Penal Code in G.R. No. 735/93 Tr. No. 1595/94' sentencing him to undergo rigorous imprisonment for 2 years and simple imprisonment for 2 years respectively.

(2.) FROM the prosecution case, it appears that the informant was going to Purnia on 15 -9 -1992 with his brother -in -law, Pramod Mandal on a motor cycle to deposit Rs. 3,72.000/ - in the Bank and when they reached near Chargharia Chawk, the criminals over -took them and snatched away the bag containing the amount. Subsequently, the criminals were chased by the public as also by the officer -in -charge of Koch ad ham an police station. Finally, they were caught and a sum of Rs. 1,70,000/ - was recovered kept with the father of the present petitioner. The police after completing the investigation submitted charge -sheet. The cognizance of the offence was taken and this petitioner was convicted in the manner indicated above. His father Md. Kasim who also figured as an accused before the learned Magistrate was released on admonition due to his old age and physical condition. On appeal the conviction of the petitioner was maintained as stated above.

(3.) AT the time of argument, learned counsel for the petitioner has seriously drawn my attention to the fact that there has not been proper examination of the petitioner under Section 313 of the Code. On this ground, he has prayed that the judgment of conviction of the Courts below is liable to be set aside. In support of this contention, he has relied on the case of Rautu Bodra and another v. State of Bihar. In the said case, the Hon'ble Supreme Court had held that though the appellants were convicted and sentenced on proper appreciation of the evidence grave error was committed at the time of their examination under Section 313 of the Code inasmuch as the Court did not ask the appellants to explain the circumstances appearing in the evidence against them. Considering the ghastly nature of the crime committed, it was held that the matter should be remitted back to the trial Court for proper examination of the appellants under Section 313 of the Code. However, since 15 years had elapsed and the appellants had already served more than 4 years of imprisonment their conviction and sentence under Section 302. read with Section 34 of the Indian Penal Code were set aside. Relying on this decision, it has been submitted before me that though there is concurrent findings of the fact by both the Courts against the petitioner his examination under Section 313 of the Code was not proper and therefore, following the ratio of the decision of this case and also taking into consideration the fact that the petitioner has already remained in custody for about 18 months his conviction should be set -aside.