Shambhu prasad v. State of Bihar — 1976 DIGILAW 203 (PAT)

JUDGMENT This is an application under section 482 of the Code of Criminal Procedure 1973 by the four accused in sessions trial no. 38 of 1974 for quashing the order of the Sessions Judge, Darbhanga dated the 29th of July 1976 in the following circumstances. 2. On 4.10.1968 one Sheonandan Singh lodged a fradbeyan at Civil Lines Police Station, Gaya. The substance of the first information report, in brief was that his son Gopal Singh had left for Darbhanga on receiving a message on l.3.8. 1968 from Bishwanath Prasad for going to Darbhanga on the occasion of Independence Day celebration. On the 21st of August, 1968 Biswanath Prasad returned back to Gaya. On being asked by the first informant about Gopal Singh, Bishwanath Prasad denied to have met him at all or to have called him to go to Darbhanga, That led to an apprehension on the mind of the first informant about the life of his Son Gopal Singh. Gopal Singh was never seen thereafter. Suspecting that Gopal Singh had been murdered, the first informant informed the Criminal investigation Department about his apprehension that the accused (petitioner) had a hand in kidnapping and murdering Gopal Singh. This case was registered as Gaya Civil lines P. S. Case no. 4 (10) 68. A case under section 364 of the Indian Penal Code Was therefore instituted against the petitioners. As things would happen, on 14. 8. 1968 a burnt dead body was found on the P. W. D. Road near village Bharathi within Singhwara Police station in the district of Darbhanga. The mukhiya of the Gram Panchayat reported the fact to the District Inspector of Police and on his statement Singhwara P. S. Case no. 1 (8) 68 under section 302 of the Indian Penal Code was instituted against person unknown. The Police suspecting that the half burnt dead body may be that of Gopal Singh, the case instituted at Gaya was amalgamated with the Singhwara Police station case. The two cases were then investigated by Singhwara police and chargesheet was ultimately submitted on 5.3.1973 against the four petitioners under section 302 of the Indian Penal Code. In course of time an inquiry under Chapter XVIII of the Code of Criminal Procedure was held. On 14. 6. 1974 the Petitioners were committed to the court of Session to stand their trial under section 302/201/365/120B of the India Penal Code. In course of time an inquiry under Chapter XVIII of the Code of Criminal Procedure was held. On 14. 6. 1974 the Petitioners were committed to the court of Session to stand their trial under section 302/201/365/120B of the India Penal Code. The file was received by the Sessions Judge, Darbhanga. The case was numbered Sessions Trial no. 38. of 1974. 3. On 24.6. 1974 the learned Sessions Judge directed the ease to be put up on 7.10.74 for fixing a date of hearing. No date was, however, fixed for about a year. On 31.5.1975 the case was transferred to the court of Shri A. Singh, First Additional Sessions Judge, Darbhanga for disposal with the observation that the hearing of the trial may be expedited. On 26. 6. 1975 the learned Additional Sessions Judge fixed 4. 8. 1975 for hearing in the Sessions trial. The Sessions trial however did not start on the date fixed previously as the first informant moved this court for transferring the Sessions trial from Darbhanga to Gaya. This effort of the prosecution, however, proved abortive. On the 30th of June 1976 the learned Sessions Judge fixed 13.7.1976 for hearing the parties in regard to framing of charges against the accused. No argument could however, take place as on that day. On 13.7.1976 the prosecution came forward with a petition praying for adjournment of the case for two months on the ground that fresh investigation had started in the case. Needless to say, the application was opposed by the accused. The parties were heard on the 13th as well as the 14th of July, 1976 in regard to the request of the prosecution for adjournment. On 17.7.1976 prosecution again filed an application for adjourning the trial for two months. The grounds for adjournment were the same as those mentioned in the earlier petition. The learned Sessions Judge heard the parties again on 24.7.1976 and thereafter passed the impugned order on 28.7.1976. The petitioners being aggrieved by the impugned order filed the present application for quashing the same. 4. Learned counsel for the petitioners has contended that there can be no question of further investigation by the police now. Whatever matter was possible, the police after investigation into the case for five years submitted the charge-sheet which resulted in commitment of the petitioners to the court of Session. 4. Learned counsel for the petitioners has contended that there can be no question of further investigation by the police now. Whatever matter was possible, the police after investigation into the case for five years submitted the charge-sheet which resulted in commitment of the petitioners to the court of Session. Thereafter there can be no Question of further investigation into the offence. He relied upon an unreported decision of N. P. Singh, J. in The State of Bihar v. N. Nagmani 1976 B.B.C.J. 665 in support of the proposition enunciated by him. 5. The prayer for adjournment of the Session trial by the prosecution was founded on the facts that one Ram Lal Gurda had been arrested at Varanasi on 26. 6. 1976. He had been forwarded to the Chief judicial Magistrate, Darbhanga. 1 he said Ram Lal Gurda as a result of further investigation of the case was likely to be committed to the Court of Sessions for the murder of Gopal Singh. In that situation a separate trial for him would cause harassment to the prosecution, waste of money of the state Exchequer and waste of energy of all concerned. The reasons which impelled the learned Sessions Judge to accede to the request of the prosecution were that the legality or otherwise of the investigation was not a matter which could be considered at the present' moment and it should be considered only at the time of trial. The learned Sessions judge felt that it would be just and proper to allow joint trial of Ram Lal Gurda along with the petitioners. A separate trial according to the learned Sessions Judge would prejudice the prosecution. On those considerations the learned Sessions Judge adjourned, the case to 16. 9. 1976 observing that the heaven will not fall specially when these accused have been waiting' for trial for such a long time. 6. The learned Sessions Judge seems to be concerned only with the difficulties and prejudice likely to be caused to the prosecution. The considerations in favour of the accused seems to be of no moment for him. The learned Sessions Judge should appreciate that any trial must be fair which means it must be fair to both sides the prosecution as well as the defence. The learned Sessions Judge failed to appreciate the dilatory tactics of the prosecution. The considerations in favour of the accused seems to be of no moment for him. The learned Sessions Judge should appreciate that any trial must be fair which means it must be fair to both sides the prosecution as well as the defence. The learned Sessions Judge failed to appreciate the dilatory tactics of the prosecution. Harassment to the accused is a factor which should be of greater concern to a judge than harassment to the prosecution. 7. The submission on behalf of the petitioners that after a case has been committed to the court of Sessions there -can be no question of further investigation by the police is supported by the unreported decision of the State of Bihar v. N. Nagmani1 (supra). After a careful examination of the provisions of the Code of Criminal Procedure N. P. Singh, J observed as follows :- In my opinion, although the police has statutory power to investigate into a case, still, if the Sessions trial has commenced, then no such report as contemplated by Section 173(8) can be forwarded to the court of Sessions directly or through the Magistrate who had taken cognizance and had summoned the accused persons, or bad committed the accused to the court of Sessions. This does not mean that the prosecution is precluded from examining any witness or from producing any document which may have been discovered during the pendency of the trial. Such witnesses can be examined and such documents can be put in, but without any reference to any case diary so as to attract the provisions of section 162 of the Code. In that view of the matter, it was not open to the investigating officer in the present case to submit the supplementary case diary before the court of Session," It is not necessary to enter into any lengthy discussion on this aspect of the matter, since the matter has now become academic. The prosecution wanted two months' time which was granted by the Sessions Judge. The case was adjourned to 16.9. 1976. That period has already expired. The Sessions Courts have closed to reopen on the 31st of October, 1976. In that view of the matter, the prosecution has got more than what it wanted. I would only like to observe that the case should not be adjourned any further. The sword of Democles has long hung over their head. 1976. That period has already expired. The Sessions Courts have closed to reopen on the 31st of October, 1976. In that view of the matter, the prosecution has got more than what it wanted. I would only like to observe that the case should not be adjourned any further. The sword of Democles has long hung over their head. It is high time they knew their position. If any evidence is obtained In regard to the complicity of Ram Lal Gurda in the crime, he may be tried at a separate trial after going through the procedure of commitment. The learned Sessions Judie will not grant any further adjournment in Sessions Trial no. 38 of 1974 on the ground that the police had re-opened the investigation. He should thwart any attempt by the prosecution to delay the trial. Now bowing to the requests of the prosecution denigrates the image of a court. 8. With the above observations, the rule issued in this case is thus discharged. Application allowed.