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2012 DIGILAW 1703 (PAT)

Binesh Yadav @ Binesh Kumar v. State of Bihar

2012-12-17

RAKESH KUMAR

body2012
ORDER The sole petitioner, while invoking inherent jurisdiction of this court under Section 482 of the Code of Criminal Procedure, has prayed for quashing of an order dated 7.1.2011 passed by Sri Nirmalendu Kumar Lall, learned Additional Sessions Judge, F.T.C. III, Nawadah, in Inquiry Case No. 1 of 2009, arising out of Sessions Trial No. 302 of 2009/35 of 2009. By the said order the learned court below disposed of the miscellaneous case i.e. Inquiry Case No. 1 of 2009 and rejected the prayer of the petitioner that Dinesh Yadav was also called with alias name as Uma Yadav and held that two different sons of Bachu Yadav i.e. the petitioner and one another were involved in the alleged occurrence and directed the petitioner to remain present in original sessions case along with others for taking next step in the case as an accused on the next date. 2. Short fact of the case is that on the fardbyan of one Kamlesh Yadav / opposite party no. 2 an F.I.R. vide Hisua P.S. Case No. 116 of 2006 was registered against number of accused persons including two sons of Bachu Yadav, namely, Uma Yadav and Dinesh Yadav. F.I.R. was registered for the offence under Section 307 and other allied Sections of the Indian Penal Code and Section 27 of the Arms Act. However, after registration of F.I.R., since the victim died, Section 302 of the Indian Penal Code was subsequently added. After investigation, charge sheet was submitted against accused persons including two sons of Bachu Yadav with Bachu Yadav. From the pleadings it is evident that one of the sons of Bachu Yadav, namely, Dinesh Yadav surrendered on 18.1.2007 with the alias name Uma Yadav and he was remanded to judicial custody. Subsequently, by an order of this court dated 3.9.2007 passed in Cr. Misc. No. 26431 of 2007, Dinesh Yadav was directed to be released on bail. During investigation it further appears that processes under Sections 82 & 83 of the Cr.P.C. was issued against another son of Bachu Yadav. However, after release on bail, Dinesh Yadav filed a petition before the learned Chief Judicial Magistrate indicating therein that Dinesh Yadav and Uma Yadav is the same person and since Dinesh Yadav with alias name Uma Yadav has already been released on bail, processes issued under Sections 82 & 83 of the Cr.P.C. against Uma Yadav be recalled. However, after release on bail, Dinesh Yadav filed a petition before the learned Chief Judicial Magistrate indicating therein that Dinesh Yadav and Uma Yadav is the same person and since Dinesh Yadav with alias name Uma Yadav has already been released on bail, processes issued under Sections 82 & 83 of the Cr.P.C. against Uma Yadav be recalled. It further appears that earlier an inquiry was directed to be conducted by the S.D.J.M. regarding the identity and the learned Magistrate had decided the same, which was assailed by the informant vide Cr. Revision No. 473 of 2009. This court by order dated 8.4.2009 passed in Cr. Revision No. 473 of 2009 quashed the said enquiry. It is pertinent to notice that after the order of cognizance, the petitioner approached this court vide Cr. Revision No. 1025 of 2007 on the point of identity stating that in the F.I.R. the petitioner was not named and he was misidentified as Uma Yadav. The said revision petition was permitted to be withdrawn giving liberty to the petitioner to raise the plea relating to identity at appropriate stage by its order dated 6.12.2007 and in that event, the court below was required to enquire into the matter and come to a conclusion regarding identity after such inquiry as deemed fit and proper by the court below. The said order has been brought on record as Annexure - ‘6’ to the present petition. After the case was committed to the court of sessions, a petition was filed on behalf of the petitioner praying therein that inquiry be conducted regarding the identity of the petitioner Binesh Yadav and Dinesh Yadav as Uma Yadav to ascertain their involvement in the alleged occurrence. On the said petition, an inquiry vide Inquiry Case No. 1 of 2009 was initiated by the learned Additional Sessions Judge, F.T.C. III, Nawadah, in Sessions Trial No. 302 of 2009 / 35 of 2009 and the learned Sessions Judge during inquiry allowed the parties to adduce evidences and finally disposed of the miscellaneous case and rejected the claim of the petitioner that Dinesh Yadav was called with alias name Uma Yadav and the court was of the opinion that Dinesh Yadav and Uma Yadav are two different sons of Bachu Yadav involved in the alleged occurrence, which order has been assailed by the petitioner in the present petition. 3. 3. Before going into detail, at the very outset, it is necessary to incorporate two facts which were admitted by Sri Nawal Kishore Singh, learned counsel for the petitioner at the time of hearing of the petition. Firstly, it was admitted that though the petitioner was arrested on 27.2.2007 and remanded as claimed on wrong identity, the petitioner never approached superior courts assailing his remand in the case. It has also been admitted that after the impugned order, discharge petition of the petitioner has already been rejected. Sri Singh, submits that the order passed in Inquiry Case No. 1 of 2009 is completely perverse and contrary to the evidences brought on record. He submits that number of documents were brought on record to show that Dinesh Yadav and Uma Yadav were the same person, still the learned Sessions Judge has come to the conclusion that two different sons of Bachu Yadav were involved in the case. At the time of argument the learned counsel for the petitioner had tried to persuade the court to come to a conclusive finding that the order impugned is perverse and he has relied on number of documents brought on record vide Annexures - ‘3’, ‘4’, ‘5’, ‘8’, ‘9 Series’ & ‘10 Series’ to the petition. He has also argued that in an another case i.e. Hisua P.S. Case No. 95 of 2005, Binesh Yadav, the petitioner and his another brother Uma Yadav were shown as accused and they were also charged in the said case separately as Binesh Yadav and Uma Yadav, and as such, according to learned counsel for the petitioner the petitioner can not be identified as Binesh Yadav alias Uma Yadav. Learned counsel for the petitioner has drawn my attention to the impugned order and tried to persuade the court that the impugned order suffers with several contradictions. Besides aforesaid point the learned counsel for the petitioner has raised several other grounds taking the plea that petitioner is not required to be put on trial. 4. In this case learned Additional Public Prosecutor as well as Sri Ashutosh Ranjan Pandey, learned counsel for informant /opposite party no. 2 have vehemently opposed the prayer of the petitioner. Besides aforesaid point the learned counsel for the petitioner has raised several other grounds taking the plea that petitioner is not required to be put on trial. 4. In this case learned Additional Public Prosecutor as well as Sri Ashutosh Ranjan Pandey, learned counsel for informant /opposite party no. 2 have vehemently opposed the prayer of the petitioner. Sri Pandey, submits that the plea of misidentification which has been taken by the petitioner, has only been taken with a view to delay the commencement of trial and to some extent he has already succeeded due to the reason that in this case though after submission of charge sheet, cognizance order was passed on 22.6.2007, even then, on one plea or the other, the petitioner succeeded in delaying commencement of trial by way of framing of charge. He further submits that it is admitted position now that after the order passed by the learned court below in Inquiry Case No. 1 of 2009, as admitted by learned counsel for the petitioner, his discharge petition has also been rejected. He further submits that though regarding identity there was no requirement for conducting an inquiry but before the commencement of trial, on petition filed by the petitioner an inquiry was conducted and during inquiry several evidences were brought on record. During inquiry number of prosecution witnesses were also examined by the learned Sessions Judge. Learned counsel for the informant while drawing my attention to page no. 7 of the impugned order submits that in the said inquiry witnesses had identified both the sons of Bachu Yadav as participants in the crime which includes petitioner, in dock, and as such, the dispute of misidentification has already been set at rest by way of their identification in dock during the inquiry in Inquiry Case No. 1 of 2009. In view of identification of both the sons of Bachu Yadav, only requirement was to put both the sons of Bachu Yadav which include the petitioner and all other accused persons on trial. He further submits that keeping in view the fact that occurrence had taken place in the year 2005, this court may direct the court below to conclude the trial within specified time. 5. Besides hearing learned counsel for the parties, I have also perused the materials available on record including the impugned order. He further submits that keeping in view the fact that occurrence had taken place in the year 2005, this court may direct the court below to conclude the trial within specified time. 5. Besides hearing learned counsel for the parties, I have also perused the materials available on record including the impugned order. The court is of the opinion that in view of the fact that court identification itself is a good identification in the eye of law as reiterated by the Apex Court recently in a case reported in (2012) 9 SCC 284 (Ravi Kapur vs. State of Rajasthan), the question of identification before commencement of trial has got no relevance. Moreover, it has been admitted by learned counsel for the petitioner that while the petitioner was arrested and remanded in judicial custody, he did not assail his order of remand on the question of identity. It has further been admitted by learned counsel for the petitioner that the petitioner was released on bail after remaining in jail for several months even after expiry of few months from the date of order of cognizance. Had it been a case of arrest on wrong identification, in normal course, the petitioner would have raised objection and approached even superior courts against his illegal detention but the petitioner preferred to remain in jail and preferred to be bailed out after remaining in jail for several months. Moreover, now, as admitted by learned counsel for the petitioner discharge petition of the petitioner has already been rejected. Thereafter, only requirement is to frame charge. From the impugned order it is evident that during inquiry police was also directed to submit report regarding identity and thereafter a report was also submitted. The learned court below in impugned order has noticed that “The Police has submitted in their inquiry report that Uma Yadav is the alias name of petitioner Binesh Yadav as per statements of co-accused and the villagers of the petitioner. The police has further reported that the petitioner Binesh Yadav is abundantly known as Uma Yadav either in village and outside of his village. Very a few person known his name as Binesh Yadav. The Police has further submitted that in course of surrender before the court, Uma Yadav produced himself in the alias name of Dinesh Yadav intentionally. The police has further reported that the petitioner Binesh Yadav is abundantly known as Uma Yadav either in village and outside of his village. Very a few person known his name as Binesh Yadav. The Police has further submitted that in course of surrender before the court, Uma Yadav produced himself in the alias name of Dinesh Yadav intentionally. The police has further reported that co-accused Dinesh Yadav son of Bachu Yadav happen to be elder son of co-accused Bachu Yadav while Uma Yadav (this petitioner) happen to be second son of co-accused Bachu Yadav”. 6. The learned Sessions Judge has further noticed that three witnesses namely Md. Wahid, Baleshwar and Idrishuddin had stated that two sons of Bachu Yadav were involved in the case. This court has also noticed from the F.I.R. that besides Bachu Yadav his two sons were made accused along with other accused persons. The witnesses during the inquiry had also identified both the sons of Bachu Yadav standing in the dock. The learned Sessions Judge in its impugned order has further noticed that “witnesses have further identified both the sons of Bachu Yadav standing in the dock while examination of these witnesses were going on”. 7. In view of the facts and circumstances particularly the fact that even during inquiry conducted by the learned Sessions Judge witnesses had identified both the sons of Bachu Yadav which includes the petitioner as participant in the occurrence, there is no ground for interference with the impugned order. It further appears that taking frivolous plea the petitioner has succeeded in delaying the commencement of trial. 8. In view of the facts and circumstances as indicated above, the court is of the opinion that there is no ground for interfering with the impugned order. Keeping in view the fact that the matter has already been delayed for a considerable time, while dismissing the present petition, it is desirable to direct the court below to proceed with the case expeditiously so that the case may come to its logical end without unnecessary delay. 9. With above observations and direction, the petition stands dismissed.