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2008 DIGILAW 1272 (PAT)

Ram Ayodhi Rai @ Ayodhi Rai v. State Of Bihar

2008-08-29

SAMARENDRA PRATAP SINGH

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Judgment Samarendra Pratap Singh, J. 1. Heard the learned Counsel for the parties. 2. The learned Counsel for the petitioners submits that one Ram Bechan Rai lodged an F.I.R. on 16.9.2006 alleging therein that accused persons including the petitioners ransacked his house and set it to fire and threw 3-4 years child consequence to which she died. 3. After some investigation charge sheet was submitted under Sections 147, 148, 341, 323, 447, 436, 427, 504 and 302 of I.P.C., against accused No. 2 to 4, whereas the investigation against petitioner No. 1 continued. Learned court below on perusal of the materials in the charge sheet took cognizance and summoned all the petitioners including petitioner No. 1 to face the trial. 4. Thereafter the petitioners filed a petition before the learned C.J.M., Sitamarhi for a direction to the police for proper and further investigation and to conduct Narco test in order to ascertain the truth. The aforesaid petition was rejected by the C.J.M., Sitamarhi vide his order dated 9.4.2007. 5. Learned Counsel for the petitioners assail the impugned order on the following grounds: (a) Magistrate taking cognizance of offence against the petitioners and summoning him to face trial pending investigation preempts his rights for plea for further investigation including application of narco and brain maping test. (b) The investigation has been defective and as such the same be investigated by the C.I.D. for unfolding the truth. 6. He submits that cognizance can be also taken against an accused on filing of chargesheet against some of the accused persons, though investigation against him may be pending. In this respect he relied upon decision of Apex Court in case of State of Maharashtra V/s. S.V Dongre and Ors. reported in 1995 (Cr.) SCC 16. 7. Heard the learned Counsel for the parties and perused the record. 8. Now I take up the first issue, whether cognizance against the petitioners even pending investigation would preempt his right from making a prayer for making proper investigation. The cognizance is taken of the offence, on the basis of materials collected in course of investigation. In course of investigation the police can file more than one chargesheet. 8. Now I take up the first issue, whether cognizance against the petitioners even pending investigation would preempt his right from making a prayer for making proper investigation. The cognizance is taken of the offence, on the basis of materials collected in course of investigation. In course of investigation the police can file more than one chargesheet. If on basis of one of chargesheet court is satisfied from materials placed before him that cognizance of offence can be taken, nothing precludes him from doing so and summoning those accused even, against whom investigation may be pending.The magistrate merely has to be satisfied whether materials on record discloses prima facie offence against such other accused also against whom investigation is pending. The view of mine finds support in decision reported in 1995 SCC (Criminal) 16, (State of Maharashtra V/s. S.V. Dongre and Ors.). 9. The issue is whether taking of cognizance against an accused consequent to filing of charge sheet against some other accused persons would preclude him from making a prayer for proper investigation. It cannot be denied that at times the investigation is defective and even at times accentuated by bias. To shut the right of an accused or the prosecution, from bringing to the notice of the Court such glaring acts of omissions and commissions in investigation would lead to undesirable results. Thus, I am of the view that taking of cognizance of an offence and summoning an accused to face trial pending further investigation of a case, does not preempt his right from bringing it to notice of the court, that investigation is not being carried out in an appropriate manner . The basis behind aforesaid right is to ensure proper and fair investigation. The Hon ble Apex Court in the case of Sakari Vasu V/s. State of U.P. and Ors. reported in 2008 SCC(2) 409 has also observed that if investigation is not being carried out properly, an aggrieved party can bring the same to the notice of the court. 10. Now I take up the next issue whether the plea of the accused for conducting narco test, brain mapping and paliography test can be conducted at the behest of accused persons. This Court will also simultaneously take up the other issue whether the instant case is a fit case for handing over to the C.I.D. or any other agency. 11. Now I take up the next issue whether the plea of the accused for conducting narco test, brain mapping and paliography test can be conducted at the behest of accused persons. This Court will also simultaneously take up the other issue whether the instant case is a fit case for handing over to the C.I.D. or any other agency. 11. For answering the aforesaid question the facts of the case is required to be noticed in brief. (i) Ram Bachan Rai @ Bechu, Opp. Party No. 3 lodged an F.I.R. on 16.9.2006 being Dumra P.S. Case No. 246/06 under Sections 436, 302 and other allied Sections of I.P.C. (Annexure-1). The informant alleged that the petitioners and others ramshacked his house, put it on fire, and threw his four years old daughter in paddy field. The daughter was subsequently found dead. 12. The case of the petitioners is that the police in course of investigation found the allegation of setting fire to the house is false. He submits that it is the informant who himself threw his 4 years old daughter in the paddy field, in order to get rid of her, as she was suffering from mental disequilibrium. 13. The case of State is that apart from informant other family members have also supported the allegations in the case diary. It appears that the investigating agency has taken care to take statement of witnesses other than family members also. The statements of witnesses cannot be discarded merely on the ground that they are family members. The informant has claimed to be an eye witnesses and has made allegations against accused including petitioner. This is not a case where there is ambiguity or no clue regarding accused. As such the accused has miserably failed to make out a case for conducting Narco tests or other scientific tests on the informant or his witnesses. 14. In this case the informant and other witnesses have made specific allegations against the petitioners and others. It is not a case where there is no clue regarding the involvement of the person in the crime. It is also not a case where huge public money has been misappropriated and the same is not traceable. As such this Court does not find any merit in the prayer of the petitioner for handing over the case to C.I.D. or any other agency for investigation. 15. It is also not a case where huge public money has been misappropriated and the same is not traceable. As such this Court does not find any merit in the prayer of the petitioner for handing over the case to C.I.D. or any other agency for investigation. 15. An accused cannot as a matter of right demand conducting of narco test or brain mapping test on the informant and other witnesses. It is up to the investigating agency to decide whether any appropriate narco or brain mapping test would be deemed expedient in a particular case or not. Further more in view of decision rendered in case of Dinesh Dalmia V/s. State reported in 2006 Cr.L.J. 2401, even the investigating agency would necessarily have to take permission of the court before embarking upon the such test. If a court is satisfied that such test would be appropriate in a given situation, it may allow the investigating agency to carry on such tests. 16. In view of the aforesaid discussions, this Court does not find any merit in the prayer of the petitioners for conducting narco and brain mapping test on the informant and other witnesses. 17. In the result this application is dismissed with the aforesaid observations.