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2021 DIGILAW 395 (PAT)

Manoj Singh @ Manoj Kumar Singh v. State of Bihar

2021-05-26

AHSANUDDIN AMANULLAH

body2021
JUDGMENT : The matter has been heard via video conferencing. 2. Heard Mr. Binay Kant Mani Tripathi, learned counsel for the petitioner and Mr. Jharkhandi Upadhyay, learned Additional Public Prosecutor (hereinafter referred to as the ‘APP’) for the State. 3. The petitioner apprehends arrest in connection with Basantpur (Lakri Naviganj OP) PS Case No. 352 of 2020 dated 18.08.2020, instituted under Sections 323, 324, 448, 308, 504/34 and 341 of the Indian Penal Code. 4. The allegation against the petitioner and others is of abuse and assault against the informant and specifically against petitioner, of having ordered to kill the father of the informant and also of inflicting farsa blow causing deep wound on his head. 5. Learned counsel for the petitioner submitted that the allegations are false, especially against him as he is a Home Guard and was on duty in a village about 10 kms. from the place of occurrence on the said date from 7:00 AM to 5:00 PM whereas the occurrence is said to have taken place at 9:00 AM in the morning, with regard to duty related to Covid testing, issued by the concerned doctor. It was further submitted that though skull bone has been found fractured of the father of the informant but the injury report does not disclose the weapon used for causing such injury. Learned counsel submitted that the FIR itself has been lodged after four days and further that for the same occurrence, Basantpur (Lakri Naviganj OP) PS Case No. 353 of 2020 has been instituted by Lakhpato Kunwar against 10 persons, including the informant, in which her grandson and two sons were assaulted and one gold chain was also snatched and there was fracture in the hand of Lakhpato Kunwar. Learned counsel submitted that the petitioner has no criminal antecedent. Further, learned counsel submitted that in the restatement of the informant himself, no specific overt act has been alleged against the petitioner and a few other witnesses have also not assigned any specific overt act against the petitioner. 6. Learned counsel submitted that the petitioner has no criminal antecedent. Further, learned counsel submitted that in the restatement of the informant himself, no specific overt act has been alleged against the petitioner and a few other witnesses have also not assigned any specific overt act against the petitioner. 6. The Court on 26.04.2021, upon the submissions of learned counsel for the petitioner had asked learned APP to obtain the up-to-date legible photo copy of the entire case diary along with the injury report and the Superintendent of Police, Siwan was also directed to send specific report after full verification with regard to the authenticity of the certificate issued by the Medical Officer, Primary Health Centre, Lakari Naviganj. 7. Learned APP submitted that he has received the same and has also forwarded it to the Court. It was submitted that from the said report, it is obvious that though the petitioner was deputed for Corona testing from 10.30 AM to about 4:00-4:30 PM but on the said date, the doctor had said that during the period the staff and personnel used to go outside the testing centre for taking tea etc. and for attending the call of nature and most importantly it has been stated that a video of the incident had become viral in which it can be clearly seen that the petitioner is in ganji and shorts and is committing the crime and the photo of the petitioner has been identified by the village chowkidar and the Officer In-charge himself. Further, it has been stated that the Medical Report initially reserving opinion in the matter has still at the end written that the injury was grievous in nature without giving any detail of type of weapon used and, thus, the Civil Surgeon, Siwan was requested to examine the injury report, which was done by a Board of Doctors and they have also given a report that does not match with the NCCT brain findings as stated in the report. Hence, it is said that the opinion should be confirmed after report from the Radiology Department, PMCH, Patna. Learned APP submitted that in the end, the Superintendent of Police has opined that the certificate issued by the Medical Officer about the alibi of the petitioner is not trustworthy. Hence, it is said that the opinion should be confirmed after report from the Radiology Department, PMCH, Patna. Learned APP submitted that in the end, the Superintendent of Police has opined that the certificate issued by the Medical Officer about the alibi of the petitioner is not trustworthy. The report of the Medical Board as well as the report of the Deputy Superintendent of Police as also the relevant portion of the video which had become viral have been annexed in which the petitioner can be clearly seen as the person leading and from the action of the persons, it is apparent that there was some sort of violent incident. Further, it was submitted that in the case diary, witnesses have specifically stated about the role of the petitioner in the entire episode of exhorting to kill the father of the informant and also inflicting farsa blow on his head. It was submitted that many witnesses are consistent with regard to the specific role and overt act of the petitioner. Further, it was submitted that in the FIR, which is a signed document, the allegation is specific and even if the police have recorded something attributing it to the mouth of the informant in the restatement, such statement is under Section 161 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the ‘Code’) and law requires that during trial, the defence has a right to confront the witness and to draw conclusion but for the present, the Court may not give too much emphasis on the same, more so, for the reason that the petitioner himself is part of the police establishment and the investigation has been by the police and, thus, what is recorded by the police during investigation especially by way of statement of a witness under Section 161 of the Code, for the present, would not be of much relevance. 8. Learned counsel for the petitioner, by way of rebuttal submitted that it has to be verified as to whether the viral video footage in which the petitioner is said to be seen committing the offence, needs to be verified as to whether it is connected with the same incident, which has not been done. 8. Learned counsel for the petitioner, by way of rebuttal submitted that it has to be verified as to whether the viral video footage in which the petitioner is said to be seen committing the offence, needs to be verified as to whether it is connected with the same incident, which has not been done. It was further submitted that the petitioner being a Home Guard constable, especially in the present pandemic situation, would be adversely affected if protection of pre-arrest bail is not given to him and his family might also suffer. 9. Learned APP submitted that such plea on behalf of the petitioner is not worthy of consideration for the reason that the petitioner being a Home Guard constable has a greater responsibility to act within the parameters of law and not commit such acts which are thoroughly illegal, with regard to which there is a video footage also of the incident. Further, it was submitted that the video of the incident became viral on the same day and, thus, there was no occasion for any manipulation and most importantly, the stage would only be at the trial when the prosecution would prove its evidence and the petitioner will have an opportunity to contradict it, in accordance with law. 10. Having considered the facts and circumstances of the case and submissions of learned counsel for the parties, the Court is not inclined to grant pre-arrest bail to the petitioner. 11. Accordingly, the application stands dismissed. 12. Interim protection given to the petitioner under order dated 26.04.2021, stands vacated. 13. However, in view of submission of learned counsel for the petitioner, it is observed that if the petitioner appears before the Court below and prays for bail, the same shall be considered on its own merits, in accordance with law, without being prejudiced by the present order.