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2015 DIGILAW 853 (JHR)

Aftab Alam @ Mintu v. State of Jharkhand

2015-07-24

H.C.MISHRA

body2015
JUDGMENT : By Court:-Heard learned counsel for the petitioners and learned A.P.P. for the State, as also learned counsel for the complainant. 2. This criminal miscellaneous petition has been filed for quashing the entire criminal proceeding against the petitioners, in C.P. Case No. 534 of 2001, as also the order passed therein on 24.8.2002, by Sri Ramjeet Yadav, learned Judicial Magistrate, Dhanbad, whereby the Court below has found prima facie offence under Sections 109 and 304 of the Indian Penal Code, against these petitioners. 3. The case of the petitioners is that there was an accident on 5.5.2001, in which, two persons were injured, out of whom, one person subsequently died. The FIR was lodged on the basis of fardbeyan of Md. Naushad, who was one of the injured, on the basis of which, Jogta P.S. Case No. 43 of 2001 was instituted for the offence under Sections 279, 337, 338 of the Indian Penal Code, and after the death of one of the injured, Section 304-A of the Indian Penal Code was also added. In the said case, there was direct allegation against petitioner No.1 Aftab Alam @ Mintu, to have injured two persons due to rash and negligent driving of a Maruti car. The FIR has been brought on record as Annexure-3 to this application. After investigation of the case, the police submitted the charge sheet against the petitioner No.1 only, for the offence under Sections 279, 337 and 304-A of the Indian Penal Code, which has been brought on record as Annexure-4 to this petition. Thereafter, petitioner No.1 faced the trial for the said office, in which, the informant Md. Naushad was also examined as P.W.1. The petitioner No.1 was convicted in the said trial and the appeal filed by the petitioner No.1 against his conviction and sentence was also dismissed by the learned Additional Sessions Judge, Fast Track Court-II, Dhanbad, in Criminal Appeal No. 267 of 2008, by judgment dated 12.4.2010, which has been brought on record as Annexure-6 by way of supplementary affidavit. 4. The present complaint, C.P. Case No. 534 of 2001, has been filed by Md. Zulfikar, who is the father of the deceased in the said accident. The complaint case has been filed in the Court of learned Chief Judicial Magistrate, Dhanbad, on 18.5.2001, i.e., after 12 days of the occurrence, in which, the petitioner Nos. 4. The present complaint, C.P. Case No. 534 of 2001, has been filed by Md. Zulfikar, who is the father of the deceased in the said accident. The complaint case has been filed in the Court of learned Chief Judicial Magistrate, Dhanbad, on 18.5.2001, i.e., after 12 days of the occurrence, in which, the petitioner Nos. 2 and 3 have also been made accused and it is alleged that the deceased was actually murdered by the accused persons giving a colour of accident by the car. In the said complaint case, the statement of the father of the deceased was recorded on solemn affirmation and four witnesses were adduced by the complainant in the enquiry stage, and on the basis of the statements of the complainant and the witnesses, the Court below has found prima facie offence against these petitioners under Sections 109, 304 of the Indian Penal Code and had issued process against the petitioners, which the petitioners had challenged in the present application. 5. Learned counsel for the petitioners has submitted that the petitioner have been falsely implicated in this case and initially the case of motor vehicle accident was instituted against the petitioner No.1 only, which was investigated by the police and the charge sheet was also submitted and ultimately, the petitioner No1 has been convicted for the said offences and conviction of the petitioner has also been upheld by the Appellate Court below. Learned counsel, accordingly, submitted that since the petitioner No. 1 has been convicted and sentenced in Jogta P.S. Case No. 43 of 2001, for the same offence the present complaint, which has been filed falsely alleging that the petitioners had murdered the deceased by motor vehicle, cannot be allowed to continue. Learned counsel submitted that the present complaint is absolutely a malicious complaint filed with false allegations, as would be evident from the fact that in the present complaint petition, the witness No.1 is the same Md. Naushad, who was also injured in the said accident, and the informant in the police case. This witness has supported the case of the accident during the trial of the petitioner No.1 in the said Jogta P.S. Case No 43 of 2001, on the basis of which, the petitioner No.1 has been convicted. Naushad, who was also injured in the said accident, and the informant in the police case. This witness has supported the case of the accident during the trial of the petitioner No.1 in the said Jogta P.S. Case No 43 of 2001, on the basis of which, the petitioner No.1 has been convicted. Now in the present case, the same witness is being used to depose the case of murder against these petitioners, which clearly shows that the case has been lodged with absolutely false allegations, and it is a fit case for exercise of inherent power under Section 482 of the Cr.P.C., for quashing the entire criminal proceeding. 6. Learned counsel for the State, as also learned counsel for the informant have opposed the prayer. It is submitted by learned counsel for the informant that the allegations in Jogta P.S. Case No. 43 of 2001 and in the present complaint case are quite different. It is submitted that actually two distinct offences are made out, on the basis of allegations in the FIR as well as in the complaint case and accordingly, the earlier conviction of petitioner No.1 in Jogta P.S. Case no. 43 of 2001, shall not be a bar for proceeding against the accused persons in the present C.P. Case No. 534 of 2001. It is submitted by learned counsel for the complainant that in the present case, there is distinct allegation against these petitioners to have committed the murder of son of the complainant by using the Maruti car as a weapon of offence. Learned counsel accordingly, submitted that there is no illegality and /or irregularity in the impugned order, as also in continuance of the present criminal proceeding against the petitioners. 7. Having heard learned counsels for both sides and upon going through the record, I find that the present C.P. Case No. 534 of 2001 has been filed after an inordinate delay of 12 days from the date of occurrence. On the date of occurrence, one of the injured had lodged FIR, which gave rise to Jogta P.S. Case No. 43 of 2001, in which, there is a pure case of rash and negligent driving of the motor vehicle against the petitioner No.1, injuring the informant and other person, who subsequently died. The said informant and the injured is the witness No.1 in the present C.P. Case No. 534 of 2001. The said informant and the injured is the witness No.1 in the present C.P. Case No. 534 of 2001. It is apparent from the record that this witness has been examined during the trial of petitioner No.1 in Jogta P.S. Case no. 43 of 2001, in which, he had only supported the case of rash and negligent driving against the petitioner No.1, resulting in injuries to him and other person, who subsequently died and on the basis of that evidence, the petitioner No.1 has already been convicted and sentenced. Now in the present case, the same witness cannot be expected to add a new story stating that it was actually a case of murder, in which, the son of the complainant was murdered by the accused persons using the car as the weapon of offence. In my considered view, the present complaint case has been instituted after making afterthoughts, with malicious intention and ex facie false allegations and in the facts of this case, the continuance of the present case shall be a sheer misuse of the process of Court. As such, it is a fit case for exercising the inherent power under Section 482 of the Cr.P.C., for quashing the entire criminal proceeding against the petitioners at this stage itself. 8. Accordingly, the impugned order dated 24.8.2002 passed by Sri Ramjeet Yadav, learned Judicial Magistrate, Dhanbad, in C.P. Case No. 534 of 2001 finding prima facie offence against the petitioners for the offence under Sections 109 and 304 of the Indian Penal Code, as also the entire criminal proceeding against these petitioners in the said complaint case, are hereby, quashed. 9. This criminal miscellaneous petition is accordingly, allowed. Petition allowed.