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2007 DIGILAW 1805 (PAT)

Nagendra Tiwari v. State Of Bihar

2007-11-23

ABHIJIT SINHA

body2007
Judgment Abhijit Sinha, J. 1. This application has been filed by the petitioner for quashing of order dated 12.9.2006 passed by Sri Sampat Kumar, Judicial Magistrate, 1st Class, Saran at Chapra in U.T. Case No. 195 of 2007 (arising out of Complaint Case No. 2768 of 2004) whereby cognizance u/s. 302/34 of the Indian Penal Code has been taken against the petitioner. 2. The aforesaid case was set into motion by the fardbeyan given by one Munna Tiwari who stated inter alia that Vijay Kumar Singh and Ajay Kumar Singh, were his brothers-in-law (Sala) and on the occasion of Holi Festival on 7.3.2004 came by cycle to his house to play Holi whereafter they left. It is alleged that after some time the informant was informed by small children that both of them were being assaulted by the residents of Chamartoli and when the informant reached the place of occurrence, he saw that Vijay Kumar Singh had been killed by lathi, danda and Chhura whereas Ajay Kumar Singh had managed to flee. It is also alleged that the residents of Chamartoli were giving chase to Ajay. It has been claimed that the residents of Gorigawan Chamartoli had assaulted with lathi, danda and chaku and killed Vijay Kumar Singh and had injured Ajay. 3. On the basis of the said fardbeyan of Munna Tiwary Parsa P.S. Case No. 17 of 2004 was registered against unknown and subsequently on 16.3.2004 a Protest Petition was filed by the informant in which he named the petitioner and others along with unknown others as the assailants and inter alia alleged that on the day of Holi festival (7.3.2004) Vijay and Ajay had come to his house and even as they were talking in the house of the informant the petitioner herein came and asked them to go with him for celebrating Holi and accordingly they went towards Chamartoli with the petitioner herein. It is also alleged that after some time the informant heard hulla and coming into the house he made inquiry whereupon he was told that a quarrel had taken place in Chamartoli between his brothers-in-law and the petitioner and as he rushed and reached the Chamartoli he saw after committing the murder of his two brothers-in-law the petitioner and others were fleeing away. The informant gave chase but the accused persons wielding chhura and danda managed to make good their escape. The informant gave chase but the accused persons wielding chhura and danda managed to make good their escape. It is also alleged that police arrived in the village and took the signature of the informant on blank paper and asked him to appear before the Senior Police Officer. The informant is said to have obtained a certified copy of the F.I.R. from perusal whereof he came to know that the petitioner had not been named in the F.I.R. 4. It has been submitted on behalf of the petitioner that he, a school teacher, has been falsely implicated in this case due to enmity with the informant resulting from a series of litigations. In this connection, it was sought to be submitted that Partition Suit No. 422 of 1997 had been filed by the informant and his wife against the petitioner and others in the Court of Sub-Judge, Chapra for partition of Schedule-I and Schedule-II lands as detailed in the plaint and that the petitioner had filed a criminal case against Vijay Singh and witnesses Bachchu Tiwary and that in Parsa P.S: Case No. 12 of 2003, a charge sheet had been submitted against Vijay and Bachchu Tiwary. It has also been pointed out that Geeta Kumari, the daughter of Krishna Rai had filed a criminal case against Vijay Kumar Singh being Parsa P.S. Case No. 35 of 2003 and that deceased Vijay Kumar Singh instituted Parsa P.S. Case No. 34 of 2003 against Bishwant Rai in which final form had been submitted as the case was found to be false. It is also alleged that Geeta Devi had filed Parsa P.S. Case No. 16 of 2004 against Vijay and Ajay for commission of offence under Ss. 302/34 of the Indian Penal Code in which final form had been submitted. On the aforesaid premise it was sought to be submitted that the informant as also the deceased were men of criminal antecedent. 5. 302/34 of the Indian Penal Code in which final form had been submitted. On the aforesaid premise it was sought to be submitted that the informant as also the deceased were men of criminal antecedent. 5. Learned counsel for the petitioner also sought to raise grievance to the effect that different stories had been narrated in the F.I.R. as also the Protest Petition regarding the nature and cause of the death of Vijay inasmuch as whereas in the fardbeyan Vijay is said to have been killed by the residents of Chamartoli and there is no allegation against the petitioner but in the Protest Petition Vijay is said to have been murdered by the petitioner herein. It has also been submitted that the two deceased being men of criminal antecedent, the probability/possibility of their being killed by other anti socials or some aggrieved party cannot be ruled out. The other probable ground for the death of the two deceased which was sought to be agitated by the learned counsel for the petitioner was that the two deceased had gone to kidnap Geeta Kumari, the daughter of Bodha Ram and mob of the village had murdered the two deceased. It was further submitted that the petitioner being a Government Servant, namely, an Assistant Teacher, had no criminal antecedents and continuance of the proceeding as against him in absence of any cogent material was an abuse of the process of the Court. 6. All the submissions as have been raised by the learned counsel for the petitioner happend to be his defence and also requires looking into facts and figures. These are all matters which can be looked into at the stage of the trial itself and not at this moment in a proceeding u/s. 482 of the Code of Criminal Procedure. 7. Admittedly, the case is proceeding on the Protest Petition in which allegation has been made against the police of siding with the petitioner herein. It is also evident from the impugned order of the learned Magistrate that the three witnesses examined by the complainant as also the statement of the complainant on S.A. have supported the allegation made in the complaint petition. In that view of the matter the learned Magistrate was justified in taking cognizance. It is also evident from the impugned order of the learned Magistrate that the three witnesses examined by the complainant as also the statement of the complainant on S.A. have supported the allegation made in the complaint petition. In that view of the matter the learned Magistrate was justified in taking cognizance. The petitioner being a Government Servant does not suo moto give an embargo to his prosecution when there appears suspicion of his having committed the murder of the two deceased. At this stage the Court is not required to see whether the materials available on the record were sufficient to secure a conviction of the petitioner. The Court is only required to see whether there are materials available on the record to make out a prima facie case. I find no apparent illegality or impropriety in the impugned order. 8. Accordingly, I find no merit in this application which is dismissed.