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2004 DIGILAW 988 (PAT)

Anand Kumar Khatri v. State Of Bihar

2004-09-18

M.L.VISA

body2004
Judgment 1. Heard. 2. This application by the petitioner has been filed for quashing the order dated 27.9.2002 of the learned CJM, Jahanabad, passed in Trial No. 1323 of 2002 so far it relates to petitioner whereby and where-under the petitioner along with others has been summoned for appearance and for quashing the entire prosecution against the petitioner in Arbal PS Case No. 58 of 1996, dated 1.5.1996. 3. The case of the petitioner is that on the basis of fardbeyan of Parshuram Singh, chaukidar of Bit No. 2/9 of Arbal, a case under Sections 328, 302 and 201/34 of the Indian Penal Code was registered against the petitioner and others in which only suspicion has been raised against the petitioner by slating that the informant came to know that deceased Ajay Sonar @ Sonia who was a goldsmith by profession arranged a party at his place in the evening on 27.4.1996 which was attended by the petitioner and others and in that party chicken and drinks were consumed by the participants and in pursuance of conspiracy poison was administered to deceased and thereafter deceased was taken to another place where he was made to drink toddy and when his condition deteriorated he was taken to doctor where he was declared dead and thereafter his dead body was brought to the place where he used to pass his nights and in the morning of the next day his dead body was taken to his village. About the petitioner it was stated in the fardbeyan of informant that because the petitioner, Baijnath Khatri and Umesh Khatri who were also goldsmith had rivalry with the deceased, they got him killed by administering poison. The further case of petitioner is that police after investigation submitted charge-sheet against co-accused Jhamlal Khatri and Lal Babu Prasad keeping investigation pending against the petitioner and others and cognizance against those two persons was taken (Annexure-3). Thereafter police submitted second charge-sheet against co-accused Sakil Khan in which petitioner, co-accused Panna Lal Khatri and Baijnath Sonar were shown as suspects and co-accused Umesh Khatri, Gopai Khatri and Surendra Chaudhary were shown as not sent up. Thereafter police submitted second charge-sheet against co-accused Sakil Khan in which petitioner, co-accused Panna Lal Khatri and Baijnath Sonar were shown as suspects and co-accused Umesh Khatri, Gopai Khatri and Surendra Chaudhary were shown as not sent up. On the basis of charge-sheet learned CJM took cognizance not only against co-accused Sakil Khan but also against this petitioner, Panna Lal Khatri and Baijnath Sonar who, as stated above, were shown as suspects in the charge-sheet and passed order for issuance of summons against Jhain Lal Khatri and Lalbabu Prasad against whom earlier charge-sheet was submitted, Sakil Khan against whom 2nd charge-sheet was submitted and petitioner, Panna Lal Khatri and Baijnath Sonar who were shown as suspects in the charge-sheet. 4. Learned counsel for the petitioner submits that petitioner was shown mere suspect in the charge-sheet and he was not sent up for trial but still cognizance against him was taken by the CJM by order dated 27.9.2002 which is not according to law because learned CJM did not assign any reason for taking cognizance against the petitioner. It is further submitted that in the FIR only suspicion has been raised against the petitioner and during investigation no material came forward against the petitioner and during investigation only this much came to the light that deceased had arranged a party and the witnesses who attend the party and who are having their shops near the place were party was arranged, in their statements which have been recorded in paras 8 to 55 of case diary, have stated that petitioner did not attend the party organised by deceased and he was not among the persons who had taken the deceased to a place for taking toddy and to a doctor and also to the village home of the deceased. It is further submitted that in the entire case diary only in the supervision note of Dy. SP it is stated that dead body of deceased was kept in the house jointly owned by the petitioner, Panna Lal Khatri and Sanjay Lal Khatri where deceased used to live as their tenant and no information to the police about the death of deceased on the morning of next day was given, therefore, they came within the circle of suspicion but then in the supervision note it is further submitted that except this there is no evidence against them (Annexure-7). 5. 5. Learned counsel of petitioner during the course of argument has produced the copy of case diary and on perusal of the same I find that some witnesses who have claimed themselves as participants in the party organised by the deceased and some others who have claimed having their shops near the place where party was arranged by the deceased and some others who have claimed themselves to be the hearsay witnesses have not stated the name of the petitioner amongst the persons who attended the party, who took the deceased from party to a place where deceased consumed toddy and thereafter to a doctor and finally to his village home. 6. It is true that the Court for taking cognizance can differ with the opinion of the IO given in the charge-sheet and can take cognizance against a person who has not been sent up by police after investigation but then the Court must assign reasons for doing so and it can take cognizance against an accused after considering the materials on record. In the present case, the learned CJM has simply stated that after perusal of relevant documents available on record he found prima facie case under Sections 328, 302, 201/34, IPC against the petitioners and others but then he has not given the details of the documents on the basis of which he has taken cognizance against the petitioner also. I, therefore, find that there is absolutely no material against the petitioner for requiring him to face the trial. 7. In the result, this application is allowed and the order dated 27.9.2002 so far it relates to petitioner for facing trial is hereby set aside.