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2012 DIGILAW 583 (PAT)

Binod Sharma v. State of Bihar

2012-04-06

ADITYA KUMAR TRIVEDI

body2012
ORDER Heard learned counsel for the petitioner and learned Additional P.P. for the State. 2. O.P. No.2 could not appear in spite of service of notice. 3. Petitioner has challenged order dated 31.03.2010 passed by learned Sessions Judge, Bhagalpur in Cr.Revision No.117/2010 whereby and whereunder the learned Sessions Judge has rejected the revision filed against order dated 05.03.2010 through which petitioner along with others has been summoned to face trial for offence under Sections 302, 201/34 of the IPC. 4. Contention on behalf of the petitioner is that order passed by the learned lower court as well as by the Revisional Court happens to be contrary to the factual aspect as well as beyond legal norms. Further putting stress, it has been submitted that though for the purpose of taking of cognizance only prima facie case has to be seen. When the case diary is gone through, it is evident that save and except suspicion that too not disclosing grave, is visualizing and as such those statements cannot be held to be justifying the action of the successive courts. Further, referring paragraph-23, the statement of wife of deceased, it has been submitted that no positive allegation has been attributed at her end nay suspicion has been attributed against the petitioner save and except disclosing the fact that petitioner had also borrowed Rs.30,000/- from the deceased. So, even the cumulative effect of those kinds of statement did not satisfy the ingredient of prima facie case and in the aforesaid background, summoning of petitioner is nothing but an abuse of the process of the court. So, prayer is that successive order passed by the respective courts should be set aside. 5. On the other hand, learned additional PP opposed the prayer and drew attention towards the statement of the witnesses from which it transpires that petitioner had also borrowed amount from the deceased which he was insisting and that happens to be reason behind for commission of his murder but fairly concedes there was no eyewitness to the occurrence. Also fairly concedes that blood stained axe was recovered from the house of co-accused Raj Kumar Paswan. His complicity on account of his dubious conduct as is visualizing from the statement of the witnesses appears to be more exposed than the petitioner. 6. Also fairly concedes that blood stained axe was recovered from the house of co-accused Raj Kumar Paswan. His complicity on account of his dubious conduct as is visualizing from the statement of the witnesses appears to be more exposed than the petitioner. 6. Matuli Mandal, brother of deceased gave his fardbeyan on 30.07.2009 near the dead body of deceased, Buchchu disclosing the fact that deceased along with others were hired by the petitioner to cut Sheesam tree. On 29.07.2009, he did not return, as a result of which on 30.07.2009 they had gone in search of deceased and during said course had also gone to the house of Raj Kumar Paswan who had disclosed that the deceased had gone to the house of petitioner for money. Then, they had gone to the house of petitioner where his son disclosed that his dead body is lying near the place where Sheesam tree was. 7. After going through the case diary, it is evident that companions of deceased who have been examined under paragraphs 26, 27, 28, 29 of the case diary have not disclosed and corroborated the statement of informant to that extent. The informant came to know regarding the affair from Raj Kumar Paswan who himself became an accused in this case and from whose house the weapon by which occurrence was committed, was recovered. The learned lower court had taken into consideration the statement of wife of deceased recorded under paragraph-23 of the case diary wherein she had disclosed the same version whatever been told by Raj Kumar Paswan that deceased had gone to the house of the petitioner. 8. True it is that for the purpose of summoning of accused a prima facie material has been found sufficient. Prima facie means on cursory perusal of the statement wherefrom complicity of petitioner visualizes during commission of crime so alleged. The scope of cognizance is bifurcated in two parts. The first part happens to be with regard to acknowledgment of commission of a crime and the subsequent part happens to be identification of accused to be responsible for commission of said occurrence. 9. After recovery of the dead body of Buchchu Mandal, there is no controversy that Buchchu was done to death and that theme is also fortified from the postmortem report showing ante-mortem injury over the person of the deceased. 9. After recovery of the dead body of Buchchu Mandal, there is no controversy that Buchchu was done to death and that theme is also fortified from the postmortem report showing ante-mortem injury over the person of the deceased. With regard to complicity of the petitioner, the evidence whatever been available in the case diary did not inspire slightest suspicion because of the fact that none of the companions have pointed out finger towards the petitioner. Admittedly, informant or the wife of deceased was not along with deceased as well as his companions at the time of their execution of work in cutting tree belonging to the petitioner. What they have gathered, that happens to be on account of disclosure made by co-accused, Raj Kumar Paswan. The aforesaid view is again negativated by the companion of the deceased who rather disclosed Raj Kumar Paswan had enjoyed company of deceased on preceding evening. 10. In a celebrated judgment, AIR 1992 SC 604 State of Hariyana & Ors. Versus Bhajan Lal & Ors. The Hon’ble Apex Court has identified following categories including others wherein prosecution can be quashed and those are :- “(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155 (2) of the Code. (3) Where the uncontroveretd allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, on investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, on investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient grounds for proceedings against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceedings is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with malafide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.” 11. After analyzing the materials available in the case diary, it is evident that permitting furthermore, to proceed against the petitioner will be nothing but an abuse of the process of the court. 12. Consequent thereupon, the order of cognizance passed by learned lower court so far it relates to petitioner, is set aside. In likewise manner the order of Revisional Court is observed. 13. Thus, petition is allowed.