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2004 DIGILAW 270 (PAT)

Hiro Rai @ Chandra Shekhar Rai v. State Of Bihar

2004-03-04

NAVIN SINHA

body2004
Judgment Navin Sinha, J. 1. This application has been filed for quashing the order dated 28.8.2002 passed by learned Chief Judicial Magistrate, Vaishali at Hajipur in Rajapakar PS 68/2001, whereby the learned Magistrate has taken cognizance against the petitioner for offence u/s. 304 read with sec. 34 of the Indian Penal Code and has directed for issuing summons against the petitioner. 2. Raja Pakar PS Case No. 67/2001 was lodged on 24.6.2001 by the informant named Rajesh Kumar Rai, that in the night of 23.6.2001 certain miscreants entered his house with intention to commit theft. Upon commotion raised by the informant the miscreants tried to flee. One miscreant who had a pistol in his hand threatened to shoot. For reasons that the villagers had assembled at the place, one of the persons who had a pistol in his hand was caught and some one in the crowd stole his pistol. The miscreant died on the spot for reason of assault by the villagers. Some one in the crowd of villagers stated that the deceased miscreant was Vishwanath. 3. Another case being Raja Pakar PS Case No. 68/2001 was lodged on 24.6.2001 by the informant Paramanand Rai stating that on 23.6.2001 he along with his son Vishwanath Rai having plucked mangoes in his orchard was returning home at about 8 p.m. when enroute one Ramjiwan Rai confronted him and shouted to catch them both. On his command Rajesh Rai (informant of Raja Pakar PS Case No. 67/2001) and others named accused therein caught hold of the informant and tied him up. The son of the informant Vishwanath Rai was then taken away by the accused persons. It is relevant to state here that the petitioner herein is one of the named accused persons who took away Vishwanath Rai. 4. The dead body of Vishwanath Rai was then found at the door of Satya Narain Rai, one of the accused in Raja Pakar PS Case No. 68/2001 who are alleged to have abducted Vishwanath Rai along with the petitioner and others. 5. Counsel for the petitioner firstly submitted that there is no direct allegation against the petitioner and the allegations against him are vague and general in nature. I am afraid that it is not the correct position. 5. Counsel for the petitioner firstly submitted that there is no direct allegation against the petitioner and the allegations against him are vague and general in nature. I am afraid that it is not the correct position. The petitioner along with other named accused in Raja Pakar PS Case No. 68/2001 is alleged to have caught hold of the informant, and assaulted him and took away son of the informant Vishwanath Rai. Counsel for the petitioner further contends that there is no eye-witness to the occurrence and all the witnesses are hearsay. It is further alleged that during investigation it has come in the evidence that the petitioner was not present in the village on the date of occurrence. The Sub Divisional Police Officer by his report at Annexure 3 stated that further investigation against the petitioner was in progress. 6. It appears that the informant protested before the Superintendent of Police praying for a fair investigation and supervision was directed by the D.S.P. Headquarters and a fresh supervision report was submitted on 3.10.2001. It is alleged that the deceased died of assault by the villagers in Raja Pakar PS Case No. 67/2001 and allegedly the petitioner was not in the village on the date of occurrence. On this basis final report was submitted on 17.10.2001 in the Court of CJM Vaishali at Hajipur stating that no evidence had been found against the petitioner and the accusation against him were found false and charge-sheet was submitted u/s. 304 read with sec. 34 of the Indian Penal Code against other accused persons. Counsel for the petitioner therefore contended that the fact that the dead body of Vishwanath Rai was found at the door of Satya Narain Rai would falsify Raja Pakar PS Case No. 68/2001. It would be highly improbable that the accused persons would kill Vishwanath Rai and leave his dead body at their door Counsel for the petitioner therefore urged that in view of Raja Pakar PS Case No. 67/2001 the subsequent Raja Pakar PS Case No. 68/2001 in which the petitioner had been implicated as an accused stood falsified. 7. On these grounds counsel for the petitioner urged that order dated 28.8.2002 summoning the petitioner to face trial, differing from the police report, was not sustainable and deserves to be quashed. 8. 7. On these grounds counsel for the petitioner urged that order dated 28.8.2002 summoning the petitioner to face trial, differing from the police report, was not sustainable and deserves to be quashed. 8. From the impugned order it is apparent, that the Court after perusal of the entire record, case diary evidence of witnesses has come to the conclusion that a case is made out against the petitioner u/s. 304 read with sec. 34 of the Indian Penal Code requiring him to stand trial. It is settled law that the Magistrate is not bound by the final report submitted by the police and can well differ with the same and summon the accused on the basis of records to face trial. 9. Learned counsel for the petitioner relied upon a judgment reported in (1998) 7 SCC 698 in support of his plea that merely because the accused has right to plead at the time of framing of charge that there is no material for framing of charge he is not debarred from invoking the inherent jurisdiction of the Court at the earliest point of time when the Magistrate takes cognizance. However, the said case was different on its fact and on the basis of the allegations made in the complaint itself relating to offence under the company law no offence was made out. I am afraid, this judgment would have no application in the facts and circumstances of the present case. There can be no quarrel with the preposition enunciated therein in general terms. In the facts and circumstances of the case, it is apparent from both FIRs that at the centre of the controversy is the deceased Vishwanath Rai and the manner of his death. He has been done away with either in Raja Pakar PS Case No. 67/2001 or Raja Pakar PS Case No. 68/2001. It would be a matter for trial to discern and arrive at a conclusion which of the allegations are correct. It would therefore be in the interest of justice that both the case be tried together. I thus see no reason to interfere with the impugned order. 10. For the reasons as discussed above there is no merit in this application. This application is dismissed.