SRININIWAS BUTRA AND OTHER Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) -This revision petition is directed against the order dated 7th July 1982 passed by the additional Sessions Judge No. 2, Jodhpur in Sessions Case No. 51/81. By the order aforesaid, the additional Sessions Judge has directed that charges under sections 148, 341, 353, 332 and 336 read with section 149 I.P.C. section 457 read with section 149 and section 436 read with section 149 as well asunder section 307 read with section 149 be framed against the petitioners.

(2.) On 30th June, 1981 at 11.20 A.M. Roop Singh. S.H.O., P.S. Pipar City, lodged a report at the said police station in relation to an incident, which is alleged to have taken place in Piper City on 30th June, 1981 between 9 A.M. to 11 A. M. According to the said report, on receiving an information at about 8 A.M., that Malis, Sunars and persons belonging to Arya Veer Dal and Hindu Mahasabha were stopping buses and preventing them from coming towards Jodhpur at Malimela; the informant as well as the C.O., Bilara, C.l. lidan Ram, l/C S.I S. Jodhpur, S L. Jeewan Khan, A.S.I. Deshraj, H.C. Magan Singh and Mangilal and constables Chhotu, Mohanlal, Chhotu Singh, Bhura Ram, Rama Kishan, Madhavdan, Raghubir Singh, Lumbaram, Budh Singh, Heer Singh Babulal, Labh Singh, etc. went there. They also took Shri Gulab Chand Singhal S D M., Jodhpur, with them. When they reached at the scene, they found 300-400 persons armed with lathis, barchis and dharias. They had stopped a roadways bus. Ramrakh Purohit, Harnarain Mundra, Jairam Bidawat Mali, Brijlal Khandelwal, Om Prakash Sunar, and Javrilal were instigating the crowd. These persons and the other persons present were asked not to stop and obstruct the movement of buses but they said that they did not want the bus stand to be kept at that place. They were persuaded by the S.D.M. and the C.O. to come to the office of the Municipal Council for the purpose of having talks about the proper place for locating the bus stand. But, in the meanwhile all of them had formed a procession and they started shouting slogans provoking communal feelings and the said procession started moving. When the procession reached Salawaton-ka-Bas, the persons in the procession started abusing the Mohammedans who were standing there and started throwing stones towards them. In reply, the Mohamedans also threw stones on the crowd. The leaders of the procession were Harnarain Mundra, Jairam Bidawat Mali, Javrilal, Omprakash, Ramrakh purohit, Satyanarain Acharya, Ratanlal Shrimaii, Jugal Kishor, Prakash cycle wala, Birju Khendelwal, Ambalal Tekha, Ramswaroop Dayama, Jethmal, Satyanarain Mali, Kishanlal, Harikishan, Ramswaroop Sevak Tejraj, Ganpatlal and Ratilal and they were instigating the crowd and were saying that the Mohamedans had turned Pipar into Pakistan. Thereafter crowd consisting of 500 to 600 persons became agitated and they broke open the door of kerosene oil shop of Gabru Chhipa and sprinkled kerosene oil from the kerosene tin and set the shop on fire. Harnarain Mundra and Jairam Mali had taken the lead in this. When the police came forward to extinguish the fire, the crowd surrounded the police party from all sides and started throwing stones at them. Since the crowd was getting violent, tear gas was used but it proved ineffective. Thereupon, the S. D. M. passed an order for lathi charge but in spite of that, the rioters surrounded the police party from all sides. The police party proved to be inadequate and stones were being thrown at them from all sides. The rioters shouted that the police men should also be burnt and thereupon Javrilal and Om Prakash caught hold of constable Raghuveer Singh and wanted to throw him in the fire but he was rescued. As a result of the throwing of stones, A. S. I. Deshraj, Head Constable, Mangilal and constables Chhoturam, Mohansingh, Bhura Ram, Chhotu Singh and Narpat Singh sustained injuries. When the situation became very serious and violent, the S. D. M. passed the order for firing and thereupon Bhikaram fired five cartridges and Sumar Singh fired 2 cartridges in the air. As a result of the firing, the crowd split into groups and retreated. In the said report it was stated that if such steps had not been taken, the rioters would have entered into the houses of Mohammedans and would have killed them and would have also killed the police men. On the basis of the aforesaid report, a case under section 147, 148, 138, 307, 440, 336, 353, 332 & 427 I. P. C. was registered and investigation was commenced. After completing the investigation, the police filed a charge sheet dated 21st July, 1981 in the court of Munsif and Judicial Magistrate, I Class, Pipar. The said charge sheet was against 60 accused persons. In the said charge sheet, all the petitioners except petitioner No. 1 Srinivas Bhutra, Satynarain petitioner No. 44 and Bhanwarlal Bhutra petitioner No. 45 were named as the accused persons. Another charge sheet dated 9th Sept., 1931 was filed in the court of Munsif and Judicial Magistrate, Pipar and in the said charge sheet, the aforesaid three petitioners No. 1, 44 and 45 were named. The Judicial Magistrate after examining the papers filed along with charge sheet passed an order dated 14th Sept., 1981 committing the case for trial to the court of Sessions. The case was transferred to the court of Additional Sessions Judge No. 2, Jodhpur and the Additional Sessions Judge, after hearing the counsel for the accused persons as well as the Additional Public Prosecutor passed the order dated 7th July, 1982 whereby he held that prima facie the following charges were made out:-

(3.) I have heard Shri M. M. Singhvi, the learned counsel for the petitioners and Dr. S. S. Bhandawat, the learned Public Prosecutor for the State. I have also careful perused the record.