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2007 DIGILAW 149 (PAT)

Bir Bahadur Singh v. State Of Bihar

2007-01-19

ABHIJIT SINHA

body2007
Judgment 1. Two of the named accused of Complaint Case No. 149 of 2001, Tr. No. 1877/2002, have preferred this application for quashing of the order dated 15.3.2002 passed therein by the learned Sub-Divisional Judicial Magistrate, Samastipur, whereby he directed for issuance of summons to the accused persons on a finding that a prima facie case under Sections 448, 365/34 I.P.C. was made out against them. 2. Raj Kumari Devi, the complainants case in brief is that she along with her husband and children live in the quarters of Samastipur Sugar Mills where her husband had been employed but as the Mill lay closed for the past several years, her husband ordinarily stayed at the village home and her two sons were under the employment of Shambhu Nath Upadhyay son Akhilesh in the telephone booth of Shambhu Nath since January, 2000 and son Amaresh in the readymade garment shop at Dalsingsarai. It is alleged that since wages were not being paid to the sons, Akhilesh and Amaresh demanding Rs. 22,375/- and Rs. 40,200/- respectively by way of outstanding wages moved the Labour Court at Samastipur on 20.7.2001 against Shambhu Nath Upadhyay. It is said that a close friendship exists between accused Bir Bahadur Singh, Nirmal Singh, Samiul Haque and Shambhu Nath Upadhyay and there were litigations between Bir Bahadur Singh and the complainant and by reason thereof and the cases in the Labour Court, the two sons were got falsely implicated in Samastipur (town) P.S. Case No. 265 of 2001 on 24.07.2001 and sent to jail. However, as Amaresh was bailed out on 11.10.2001, on the night of 21.10.2001 at about 10 P.M. while the complainant was having her meals with Amaresh and her daughter, there were knockings on the door. On opening the door, the complainant saw a police jeep parked outside and the accused persons standing near it. Immediately A.S.I. Samiul Haque and S.I. Nirmal Singh allegedly entered into the room caught hold of Amaresh and took him away after advancing threat that should the complainant create any disturbance at night, the son would be shot dead. 3. The further case of the complainant is that when she went to the police station in the morning to meet her son, he was not found there and upon queries being made she learnt that Amaresh had not been brought to the police station that night. 3. The further case of the complainant is that when she went to the police station in the morning to meet her son, he was not found there and upon queries being made she learnt that Amaresh had not been brought to the police station that night. It is said that when she raise protest with the police personnel available there she was scolded and snooted away. She then reportedly went to the S.P. but was not permitted to meet him. The complainant-was sanguine in her mind that it were the accused persons, being friends, under a conspiracy had kidnapped her son as a retailatory measure to the court cases regarding wages and the litigation with the complainant. 4. It has been submitted on behalf of the petitioners that they are innocent and the complainant being inimical had filed several cases against the accused. Giving a resume of such cases, the learned counsel for the petitioners submitted that the complainant had earlier filed Complaint Case No. 260 of 1995 before the learned Sub Divisional Judicial Magistrate, Dalsingsarai against accused Awadhesh Kumar, Sudhir Kumar and Shanti Devi under Sec. 365 of the Indian Penal Code for kidnapping of her son Amaresh Kumar but the falsity of the case became apparent when Amaresh Kumar returned to his house and filed a written statement before the Officer Incharge of Vidyapatinagar Police Station stating that he had not been kidnapped by any one and had as a matter of fact gone to Delhi for his livelihood and following the same the complainant also filed a written statement in court saying that her son had been recovered. Then again the complainant filed a Complaint Case No. 97 of 2000 against the petitioners and others under Section 323/354 I.P.C. wherein the petitioners were granted bail. Then again the complainant filed a complaint case before the Superintendent of Police, Samastipur bearing Memo No. 2429 dated 21.9.2001 alleging, inter alia, that the petitioners had tortured her and were threatening her with the kidnapping of her daughter and following investigation by the police it turned out that the complainant was a lady of questionable character and she was given to implicate any person falsely for herself interest. It was also found that because of her conduct she along with entire family had been ousted from her native village by the villagers as she had implicated several villagers in false cases. There was also a proceeding under Sec. 107 Cr.P.C. against the petitioners in the court of S.D.O. Samastipur bearing M.R. No. 797 of 2001 which was set aside in Criminal Revision No. 343 of 2001 by the IIIrd Additional Sessions Judge, Samastipur. 5. Harping on the promiscuity of the complainant to file false cases, the learned counsel for the petitioners submitted that co- accused, Shambhu Nath Upadhyay had earlier filed a case being Samastipur (Town) P.S. Case No. 265 of 2001 against the sons of the complainant Amaresh Kumar and Akhilesh Kumar registered under Sec. 381 I.P.C. and the aforesaid case was investigated by A.S.I. Samiul Haque and out of the grudge nursed therefore by the complainant she had falsely implicated Shambhu Nath Upadhyay, A.S.I. Samiul Haque and S.I. Bir Bahadur Singh who were her next door neighbours. The learned counsel also sought to point out that the learned S.D.J.M. had erred by entering into an inquiry under Sec. 202 Cr.P.C. rather than direct for investigation under Sec. 166(3) Cr.P.C. as the allegations the complaint petition were serious in nature which required specialised investigation. It was also submitted that the allegations in the complaint petition were absurd and inherently improbable which no prudent person in his normal senses would have believed. It was also submitted that since certain documents had already been furnished by the petitioners through post, the court was duty bound to look into those documents before taking cognizance. 6. O.P No.2 has appeared and has filed a composite counter affidavit denying the submissions advanced by the learned counsel for the petitioners. It was submitted that the complaint case No. 260 of 1995 in respect of the kidnapping of Amaresh Kumar was still pending in the court of Sri Jai Sri Ganesh, Judicial Magistrate, Dalsingsarai wherein Pawan Mahto, Umashankar Mahto and Pramod Mahto were impleaded as accused during the trial of the case. It would also appear that it was the police of Vidyapatinagar who had recovered the son of Opposite Party No.2 and handed him over to her and it was not a case as pleaded by the learned counsel for the petitioners that the boy had returned. 7. It would also appear that it was the police of Vidyapatinagar who had recovered the son of Opposite Party No.2 and handed him over to her and it was not a case as pleaded by the learned counsel for the petitioners that the boy had returned. 7. Be that as it may, kidnapped Amaresh Kumar has not still been recovered nor he has come back to the house. Whatever submissions have been advanced by the learned counsel for the petitioners are matters of defence and these can be looked into by the court at the time of framing of charge. So far as the present moment is concerned, the submissions advanced by the learned counsel for the petitioners which are by way of defence cannot be looked into at the present moment and shall be looked into at the time of framing of the charge. 8. In the result, I do not find any merit in this application which is accordingly dismissed.