2011 CrlLJ 1347 and Narendra Rajput v. State of Chhattisgarh through Secretary & Ors. v. for & Ors.

Channappa Andanappa Siddareddy and others v. State 1980 Crl LJ 1022; Jayantibhai Lalubhai Patel v. State of Gujrat 1992 CRl LJ 2377; Shyam Lal v. State of U.P. and Ors 1998 Crl LJ 2879; Court on its Own Motion through Mr. Ajay Chaudhary v. State 2011 CrlLJ 1347 and Narendra Rajput v. State of Chhattisgarh through Secretary, Department of Home Aff airs (Police) and Others 2019 SCC Online Chh 16 – approved. Harendra Rai v. State of Bihar and Others [Decision dated 13-03-2007 of Patna High Court in Cr.WJC No. 717 of 2006] – referred to. State of Kerala v. Unni (2007) 2 SCC 365 : [2006] 9 Suppl. SCR 931; Prabhakara v. Basavaraj K. (2022) 1 SCC 115; Ved Mitter Gill v. UT, Chandigarh (2015) 8 SCC 86 : [2015] 5 SCR 73; Joseph M Puthussery v. T.S. Jhon and others (2011) 1 SCC 503 : [2010] 14 SCR 427; Anant Chintaman Lagu v. State of Bombay AIR 1960 SC 500 : [1960] 2 SCR 460; Munnu Raja and another v. State of M.P. (1976) 3 SCC 104 : [1976] 2 SCR 764; Suresh Chandra Jana v. State of West Bengal and Ors. (2017) 16 SCC 466 : [2017] 13 SCR 1; State of Haryana and Ors. v. Ch. Bhajan Lal and Ors AIR 1992 SC 604 : [1990] 3 Suppl. SCR 259 and Zahira Habibulla H. Sheikh v. State of Gujarat (2004) 4 SCC 158 : [2004] 3 SCR 1050 – referred to. 197th Law Commission of India Report on Public Prosecutors’ Appointments (2006) and 154th Law Commission of India Report – referred to. OTHER CASE DETAILS INCLUDING IMPUGNED ORDER AND APPEARANCES CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 1726 of 2015. From the Judgment and Order dated 02.12.2011 of the High Court of Judicature at Patna in CRRP No. 1345 of 2009. HARENDRA RAI v. THE STATE OF BIHAR & ORS. 409 Appearances: Abhay Kumar, Rajat Khattry, Shagun Ruhil, Ms. Neetu Jain, Advs. for the Appellant. R. Basant, Sr. Adv., Neeraj Shekhar, Sunny Choudhary, Manoj Kumar, Devashish Bharuka, Ms. Sarvshree, Ms. Nishi Kashyap, Advs. for the Respondents. JUDGMENT / ORDER OF THE SUPREME COURT JUDGMENT VIKRAM NATH, J.

Everything was going as per the plan and wish of the main accused Prabhunath Singh, a political leader and a sitting Member of Parliament at the relevant time as he had mustered full support of the Administration and the Investigating Agency; he had infl uenced and won over almost all the witnesses of fact mentioned in the chargesheet (who were declared hostile), the relevant formal witnesses including the Investigating Offi cer were not produced in the trial by the prosecution, the Public Prosecutor prosecuting the case was supporting the defence, the Presiding Offi cers were completely insensitive towards their pious duty, but everything turned upside down when he committed a glaring mistake and that one mistake cost him heavily. He got the court witness, Smt. Lalmuni Devi, mother of deceased Rajendra Rai abducted ten days before the date fi xed for recording her statement. This led to fi ling of a Habeas Corpus Petition before the High Court, a report submitted by the Inspecting Judge as a result of an unruly incident which occurred in the Trial Court on the date Smt. Lalmuni Devi-CW-1 deposed before the Trial Court and another report of the Inspecting Judge commenting upon the judgment of acquittal by the Trial Court. All these aspects would be dealt in detail at a later stage.

This appeal assails the correctness of the judgment and order dated 02.12.2021 passed by learned Single Judge of the Patna High Court in Criminal Revision Petition No. 1345 of 2009, whereby the said Revision Petition was dismissed confi rming the judgment of the Additional Sessions Judge, Fast Track Court-III, Patna dated 24.10.2008 passed in Sessions Trial Nos. 469 of 2007 and 470 of 2007, acquitting Respondent Nos. 2 to 8 of all the charges.

FIR was registered on 25.03.1995 at the Police Station Masrakh (Panapur) District Saran at Chapra, Bihar as Case No. 62 of 1995 under Sections 147, 148, 149/307 of Indian Penal Code, 18601 and Section 27 of the Arms Act. Later on, Section 302 IPC was added as two out of three injured died during treatment. The said FIR was registered based on the statement of one of the injured Rajendra Rai at about 10AM, who subsequently succumbed to injuries. The statement was recorded at the corridor of Camp Rajkiya Hospital, Panapur by Sub-Inspector N.N. Thakur of Police Station, Panapur in the presence of two other injured namely Daroga Rai and Smt. Devi and also before two other persons namely Narendar Singh and Sanjeev Kumar Singh who had signed as witnesses in the FIR.

The prosecution version, as recorded in the FIR in the statement of Rajendra Rai, narrated that the informant along with eight-nine other persons of his village was returning after casting their vote in the election on 25.03.1995 at around 9AM; when they reached south east of his residence, fi ve persons came in a car armed with rifl es and guns and stopped the car; Prabhunath Singh (accused no.1), who was the contesting candidate for Bihar People’s Party (BPP), while sitting in the car enquired as to whom all of them had cast their votes; the informant answered that they had cast their votes in favour of Janta Dal Party having symbol of Chakrachap; on hearing this, the car moved towards south and stopped at a little distance; Prabhunath Singh (accused no.1) opened fi re from his rifl e pointing towards the informant and others and thereafter the car sped away. As a result of the fi ring, three persons got injured.

On the basis of the FIR, investigation was taken up. Inspection was made of the spot of occurrence. Three used cartridges were recovered from the place of occurrence, they were sealed and a recovery memo was prepared. The Investigating Offi cer recorded the statement of the witnesses. The injured were provided medical treatment, the doctor prepared the injury report and after two of the injured expired, the post-mortem reports of the two deceased persons were also prepared. Daroga Rai died soon after the incident and his post-mortem was conducted on 26.03.1995. Rajendra Rai died after about fi ve months on 21.08.1995 and his post-mortem was conducted on 22.08.1995. 1 In short, “IPC”

Prabhunath Singh (accused no.1) was avoiding the arrest, nor was he surrendering as he was the member of the ruling party. The District Magistrate, considering the amount of infl uence being yielded by the accused, found that it was not feasible to conduct the cases in District Saran at Chapra and hence recommended the transfer of all the six cases to Hazaribagh. In all these cases Prabhunath Singh was an accused. The transfer was approved by the High Court. However, later in the year 2000, upon re-organization of the State of Bihar, as Hazaribagh fell in the State of Jharkhand, the present trial was transferred to District Bhagalpur in Bihar.

It was only after 11 years that charges could be framed by the Trial Court on 26.03.2006 against all the accused for off ences under various Sections of IPC as stated above. The prosecution examined 11 witnesses. It would be relevant to note that out of these 11 witnesses, PW-1 to PW-7 were examined on a single day i.e. 27.06.2006. The statement of all these seven witnesses were more or less similar to the eff ect that they saw the incident of fi ring but did not see who killed the two deceased. All seven witnesses were declared hostile by the Prosecution. PW-8 to PW-10 (three witnesses) were examined on 10.08.2006.

In the meantime, on an application under Section 311 of the Code of Criminal Procedure, 19732, the Trial Court, vide order dated 23.10.2006,summoned Lalmuni Devi (CW-1), mother of deceased (Rajendra Rai) as court witnessand03.11.2006 was fi xed for recording her statement. On 24.10.2006, Lalmuni Devi (CW-1) and her husband were abducted from their residence by none other than the brother of Prabhunath Singh (accused no.1) and his associates. The appellant (son of CW-1) made a complaint to the local police and when no action was taken, he approached the Superintendent of Police of District Saran and also the Director General of Police and the State Home Secretary which also went unattended. This resulted into fi ling a petition seeking a writ of Habeas Corpus before the Patna High Court.

The said Habeas Corpus Petition was registered as Cr.WJC No. 717 of 2006, Harendra Rai Versus State of Biharand Others.

The said Habeas Corpus Petition was decided by the Division Bench of the Patna High Court vide the detailed judgment dated 13.03.2007. 2 CrPC The Division Bench issued certain directions with respect to the trial in question. The said judgement would be dealt with in detail at a later stage.

Pursuant to the direction issued vide judgment dated 13.03.2007, the trial proceeded but again in a most shabby manner, not even complying with the directions of the High Court. The Special Public Prosecutor for the State, instead of getting the witnesses examined before the Court, fi led affi davits on their behalf reiterating their earlier statements. Only two witnesses were re-examined namely PW-1 and PW-10. With respect to PW- 2, PW-4 to PW-7, affi davits were fi led stating that they had nothing further to add and they reiterated their deposition given earlier. Shrimati Lalmuni Devi (CW-1) was again examined and cross-examined on 29.09.2008 where she fully supported the prosecution story. Prosecution evidence was closed on 29.09.2008. The Trial Court, vide judgment dated 24.10.2008, acquitted all the accused in both the Sessions Trials bearing no. 469 of 2007 and 470 of 2007. There was no challenge to the judgment of acquittal by the State.

During the trial, on the date of the statement of CW-1 i.e. 03.11.2006, there was some altercation in the Trial Court where the lawyers and pairokar of the accused, assaulted the family members of CW-1 inside the Courtroom. This was reported in the newspapers inviting attention of the Inspecting Judge. The Inspecting Judge set up an inquiry in which he collected evidence and recorded statements. Based upon the same, he gave a detailed report dated 21.02.2007 criticizing the conduct of the Presiding Offi cer of the Trial Court. The judgement in the Habeas Corpus petition incorporates the fi ndings of the Inspecting Judge in the report dated 21.02.2007. Relevant extract from the judgment in the Habeas Corpus petition is reproduced hereunder: “On coming to learn, through some newspaper report about the fracas created in the Court of 7th Additional Sessions Judge, Bhagalpur while the court proceedings were going on, Mr.

The proceedings of the Habeas Corpus petition also need to be appropriately referred to. After the incident of abduction of Lalmuni Devi (CW-1) on 24.10.2006, the Habeas Corpus petition was fi led on 31.10.2006 and was taken up by the Court on 01.11.2006. On the said date, it was adjourned on the request made by the Advocate General. On 02.11.2006, the Advocate General stated before the Court that, on receiving report of abduction of Lalmuni Devi and Rama Rai, investigation was started and in the night itself Rama Rai appeared before the Offi cer In-Charge and the Sub Divisional Police Offi cer. He stated that, apprehending some threats from diff erent quarters, he and his wife had gone underground for self-protection. Rama Rai said that he had come forward on his own to speak the truth about going into hiding on their own accord on account of certain rumors that were spread. Rama Rai, however, refused to disclose the whereabouts of his wife Lalmuni Devi. The Advocate General assured the Court that Lalmuni Devi would be given full protection not only for appearing before the Court but also otherwise so that she may not be harmed by anyone. On the above statement of the Advocate General, the Division Bench of the Patna High Court hearing the Habeas Corpus Petition directed for the production of Rama Rai to record his statement. The next date fi xed was 08.11.2006 for production of Rama Rai. It was further provided by the Division Bench that in the meantime if Lalmuni Devi appears before the Trial Court on 03.11.2006, the Court may proceed with the case but if she failed to appear on the said date, the prosecution case should not be closed till further orders by the Court.

On 08.11.2006, it was reported that the statement of Lalmuni Devi was recorded on the date fi xed i.e. 03.11.2006. Thereafter she was taken from Bhagalpur to Chapra from where she had been abducted and her statement was recorded under Section 164 CrPC before the Magistrate at Chapra. In the said statement, she stated that she was not abducted by anyone. The said statement was fi led before the High Court along with the counter affi davits. On the above submissions, the Advocate General stated that the petition had become infructuous.

The Division Bench was further informed that on 03.11.2006, the deposition of Lalmuni Devi was not normal and smooth. Her appearance had led to a clash between two groups of people although the said incident was not reported by the Trial Judge. However, it had attracted the attention of the Inspecting Judge, Bhagalpur through newspaper reports and based on the same he called for reports and directed for enquiry. The fi nal report dated 21.02.2007 given by the Inspecting Judge has already been referred to above.

On behalf of the writ petitioner before the High Court, it was submitted that their parents were not made free and they were still under the clutches and remote control of the accused. The Division Bench, therefore, did not close the proceedings of the case and adjourned the matter awaiting the result of the enquiry by Justice C.K. Prasad, as he was the Inspecting Judge.

The Division Bench further records that in the meantime two complaints were fi led regarding the abduction of Lalmuni Devi and her husband; one was fi led by their daughter in law Girija Devi at Panapur Police Station registered as Case No. 81 of 2006 and the other was lodged at Masrakh Police Station Dist. Saran registered as Case No.129 of 2006 at the instance of one Shankar Rai. Later on Shankar Rai retracted and had fi led a written note stating that he had fi led the complaint under some misunderstanding. The said Shankar Rai was one of the persons from the side of the abductees accompanying Lalmuni Devi at the time of her appearance before the Trial Court on 03.11.2006. The Division Bench directed that both these complaints be thoroughly investigated and the reports of investigation be submitted under the signature of the Deputy Inspector General of Police, Saran range.

On 17.11.2006, Lalmuni Devi appeared before the Division Bench and fi led an affi davit duly sworn in by her. In the said affi davit, it was stated that she and her husband Rama Rai were abducted by the men of Prabhunath Singh and were under their complete control all along. She appeared before the Court and gave oral statement before the Division Bench. The Court has recorded that she was an old and rustic village woman and seemed to be under stress and looked quite vulnerable. She spoke only Bhojpuri in which one of the members of the Division Bench Justice S.P. Singh was fl uent. She stated before the Court that she and her husband were in fact abducted by the men of Prabhunath Singh. They had used force against her and had threatened her. Both her statements before the Trial Court on 03.11.2006 and her statement under Section 164 CrPC were not free and voluntary but under duress and intimidation.

At this stage also the Advocate General reiterated that nothing further survives in the matter with regard to the abduction. However, the Division Bench declined to close the proceedings noting that it was evident that lurking behind the surface, were much larger and far better issues than the alleged abduction of two old villagers. The Registrar General of the High Court was given direction for making arrangements of stay of Lalmuni Devi at the Judges’ Guest House at Patna so that she was isolated from any infl uence and that her statement was to be recorded at the Guest House on 20.11.2006 by a Magistrate. The conduct of the Police was also noticed by the Division Bench that they were not willing to see the reality and continued to work under the infl uence of Prabhunath Singh. The Division Bench directed the Additional Director General of Police Dr. D.N. Gautam to supervise the proceedings.

On 20.11.2006, the statement of Lalmuni Devi was recorded in writing as also a video cassette by the Magistrate was prepared of the same and submitted in a sealed cover. The Advocated General on 05.12.2006 submitted the interim report by Dr. Gautam. He had severely criticized the supervision report and described it as one of the shallowest of the shallow pieces of investigation. It was then that the Court directed the investigation of two cases would be made under the overall charge of Dr. Gautam.

On 24.01.2007, the Advocate General submitted the report by Dr. Gautam. In the meantime, report of the Inspecting Judge dated 21.02.2007 was also received by the Division Bench. The orders passed on 08.11.2006, 17.11.2006 and 05.12.2006 were challenged before this Court by way of Special Leave Petition (Criminal) Nos. 187, 377 and 378 of 2007 respectively. All the SLPs were dismissed by some observations by a common order dated 15.01.2007.

The Division Bench had three materials before it namely affi davit of Lalmuni Devi, her statement recorded by the Magistrate on 20.11.2006, the reports of Dr. Gautam, Additional Director General of Police dated 30.11.2006, 16.12.2006 and 22.01.2007 and the enquiry report by Justice C.K. Prasad, the Inspecting Judge, Bhagalpur dated 21.02.2007.

The Division Bench proceeded to record in detail the version of Lalmuni Devi as to how she had been abducted along with her husband by Dina Nath Singh (brother of Prabhunath Singh) and Chotelal, MLA from Parsa. She had stated in detail as to what all places they had been taken to and how they were ill-treated. She also described that Prabhunath Singh, his security guard, the Mukhiya and Shankar told her to change her statement and if she would not do the same, then Prabhunath Singh would kill her other son (Harendra Rai) as well. She also described how she was taken to Court room where the incident took place in which the men of Prabhunath Singh assaulted her son, daughter-in-law and son-in-law who wanted to take her with them. The Judge was sitting in Court and in his presence her family members were assaulted but the Judge said nothing. She was also threatened that she would also be killed. She was again taken by Prabhunath Singh and his men from the Court on 03.11.2006. She also stated that she had not given any statement on 03.11.2006 and only her thumb impressions were taken as she was frightened and afraid that she might lose her other son, daughter-in-law and son-in-law who were being continuously assaulted. It was after three-four days that she reached her home. She also narrated in her statement in the enquiry report about the working of Prabhunath Singh and that he was again preparing to get her abducted. The honest and true version of Lalmuni Devi has been recorded above. In the report submitted by the Additional Director General of Police, he had condemned the report of D.I.G., Saran range, Chapra. He had concluded the report by observing that the investigation of the two cases was quite casual and the supervision and control of the investigation was also pitiable. He had also recorded the statements of Lalmuni Devi and Rama Rai which was again reproduced in the order and the same is not being repeated as it is more or less the same as recorded above. Dr. Gautam in his report also commented that the sequence of events started only after the application under Section 311 CrPC was allowed and Lalmuni Devi was called as a court witness on 03.11.2006.

Further, according to the report of Dr. Gautam, after abduction of Lalmuni Devi, her son and daughter-in-law represented not only to the offi cer-in-charge, Panapur Police Station but also to the Superintendent of Police, the Director General of Police and the Home Secretary at Patna. The Director General of Police forwarded the petition given by the son and daughter-in-law to the Superintendent of Police, Chapra by fax for taking necessary action on 25.10.2006. The same was communicated and received in the offi ce of Superintendent of Police, Chapra on the same day but it remained unattended till 02.11.2006. It was only after the petition was instituted on 31.10.2006 that formal notice was taken of the said petition by the Superintendent of Police. The report further notices that from 24.10.2006 till 03.12.2006, the son of Lalmuni Devi had been running from pillar to post between Chapra, Patna and Bhagalpur but no public authority paid any heed to his complaints. Dr. Gautam stated that he had tried to put the investigation of the two cases back on the right track and also pointed out the glaring omissions and defi ciencies in the investigation. He had also observed in his report that the cases instituted against the witnesses and the attitude of the Police was another cause of grave concern. He also made a request to the Court to be spared from being involved in the matter any further as he had no machinery of his own by which he could conduct an independent and impartial investigation.

The Division Bench further proceeds to record the fi ndings of the Inspecting Judge given in his report dated 21.02.2007, which we have already reproduced in the earlier part of this order.

The Division Bench further records the fi nding that the above facts and circumstances and the evidence placed on record clearly establish the connection between abduction of Lalmuni Devi at Chapra and the murder trial taking place before the Bhagalpur Court. Lalmuni Devi had been abducted to prevent her from deposing freely in the trial relating to the murder of her son. The abductors of the Lalmuni Devi succeeded in their design to make sure that she was not allowed to make a free deposition before the Bhagalpur Court. The fi nding of the Division Bench is extracted from the order and reproduced hereunder: -

…The reports of Dr. D.N. Gautam and the statement of Lalmuni Devi clearly establish the connection between her abduction at Chapra and the murder trial taking place before the Bhagalpur Court. It is evident that Lalmuni Devi was abducted to prevent her from deposing freely in the trial relating to the murder of her son. Her statement made in the Court and recorded by the Magistrate at the Judges’ Guest House, Patna and the report of Justice C.K. Prasad, the Inspecting Judge of Bhagalpur Judgeship further make it clear that the abductors of Lalmuni Devi succeeded in their design and she was not allowed to make a free deposition in the Bhagalpur Court.

Despite the above material which had come on record, the senior counsel appearing for Prabhunath Singh before the High Court continued to oppose any directions to be issued by the Division Bench. He reverted to the old theme that the petition had been rendered infructuous and the Court was needlessly proceeding further in the matter. The submission was that both the reliefs claimed in the petition namely, recovery of Lalmuni Devi and the other for getting a case registered and investigation carried out regarding her abduction stood already granted and the proceedings may be brought to an end. He also objected to the Court’s previous orders calling for reports from Dr. D.N. Gautam, Addl. Director General of Police. He also made an eff ort to argue that the report was based upon material which was in the nature of hearsay evidence and as such on its basis the Court may not hold that deposition of Lalmuni Devi before the Trial Court on 03.11.2006 was not free and voluntary.

The Division Bench rejected the submissions of Mr. Vindhya Kesari Kumar, learned senior counsel appearing for Prabhunath Singh as being without any substance or merit. The Division Bench further proceeded to record the fi nding that the deposition of Lalmuni Devi on 03.11.2006 before the Trial Court was not voluntary but was made under duress and intimidation while she was under the control of the accused. Following is the relevant extract from the said judgment:

…Every criminal trial, specifi cally a trial relating to a double murder is supposed to be held fairly and impartially. The present trial was not held at Chapra, in departure from the normal, but was transferred to Hazaribagh and then to Bhagalpur in order to ensure that it should be held fairly. But the materials before the court leave no room for doubt that the proceedings of the trial were violently interfered with and the trial’s sanctity has been badly abused. In light of the materials before it, the court has no hesitation in fi nding that the deposition of Lalmuni Devi on 03.11.2006 in Sessions Trial No.19 of 2003 before the 7th ADDL. Sessions Judge, Bhagalpur was not voluntary. It was made under duress and intimidation while she was fully under control of the accused. What this court fi nds indescribably regrettable is that the subversion of the trial was made possible only with the abetment, by acts of omission and commission, of those who were primarily responsible to ensure that it should be held independently, fairly and impartially. The unholy drama that took place in the Trial Court was not possible without the inaction and connivance of the Chapra Police, the active help and co-operation by the P.P. conducting the trial and the defence lawyer appearing for the accused. The saddest part in the entire episode is that the Presiding Judge turned a Nelson’s eye to what was happening in the Court room. He not only remained a silent spectator in the Court room but did not even report the matter to this Court. When an enquiry was directed there was an apparent attempt to cover up by all concerned...

Towards the end, the Division Bench recorded that the Advocate General by the said time, having perused the material which was placed, became fully alive to the seriousness of the matter. He gave up his earlier stand which was similar to the stand of the counsel for the accused Prabhunath Singh that the petition had been rendered infructuous and further proceeded to give some useful suggestions. It would be worthwhile to reproduce the stand of the Advocate General, as recorded by the Division Bench, which reads as follows:

…Here, I am pleased to note that the Advocate General was fully alive to the gravity of the matter. He completely gave up his earlier stand that with the appearance of Lalmuni Devi, the writ petition had become infructuous and gave some useful suggestions to the Court. The Advocate General submitted that though there was an apparent connection between the abduction of Lalmuni Devi at Chapra and the trial taking place at Bhagalpur, the two matters were required to be dealt with separately as one was still at the stage of police investigation while the other was a trial before a Court. With regard to the abduction case at Chapra, he stated that the Government is willing to accept investigation by any mode and by any agency as may be directed by the Court. With regard to the trial at Chapra, he submitted that the Government was willing to change the P.P. and to appoint a Special P.P. to conduct the trial in his place. He also submitted that prima facie the statement made by Lalmuni Devi before the Trial Court on 03.11.2006 was not free and voluntary and hence, she was required to be re-examined. He also said that there was need to change the Presiding Judge by transferring the case to another Court.…

Here an apt Latin Maxim which means he who acts through another, acts himself, may be quoted “qui facit per alium facit per se”.

Insofar as the investigation regarding the incident of abduction is concerned, the Division Bench, although noticed that the same was deplorable at that time but as it was still at the stage of investigation, the Advocate General assured that it would be done in a fair and impartial manner and also expeditiously. Directions were also issued that the report of Dr. Gautam along with the copy of the judgment, be sent to the Director General of Police and the Home Secretary, Bihar to take curative measures in the matter without any loss of time. The last part of the judgment contains the directions issued by the Division Bench with respect to the murder trial which was pending at Bhagalpur. The Division Bench found the suggestions given by the Advocate General positive and fully acceptable. Apart from transferring the trial out of Bhagalpur, the Court also issued a couple of other directions. The said directions are reproduced hereunder: “…In light of the discussions made above, it becomes necessary to give the following directions with regard to Sessions Trial No.19 of 2003 arising from Masrakh (Panapur) Police Station Case No.62 of 1995. i.

The above completes the proceedings which were undertaken in the Habeus Corpus petition resulting into the judgment of the Division Bench dated 13.03.2007 of the Patna High Court.

Pursuant to the directions of the Division Bench, the trial was transferred to Patna from Bhagalpur. The proceedings at the Sessions Court, Patna were equally disappointing and the conduct of the State Government, the Public Prosecutor so appointed and the investigating agency, including that of the Trial Judge, remained unchanged. Although in the earlier part of the judgment, the proceedings, after the judgment dated 13.03.2007 of the Division Bench, before the Trial Court have been incorporated but in order to maintain the continuity the same at the cost of repetition are reproduced here again:

Pursuant to the direction issued, vide judgment dated 13.03.2007, the trial proceeded but again in a most shabby manner and not complying with the directions of the High Court in letter and spirit. The Special Public Prosecutor for the State, instead of getting the witnesses examined before the Court, fi led affi davits on their behalf reiterating their earlier statements. Only 2 witnesses were re-examined namely PW-1 and PW-10. With respect to PW-2, PW-4 to PW-7, affi davits were fi led stating that they had nothing further to add and they reiterated their deposition given earlier. Shrimati Lalmuni Devi (CW-1) was again examined on 29.09.2008. Prosecution evidence was closed on 29.09.2008. The Trial Court, vide judgment dated 24.10.2008, acquitted all the accused in both the Sessions Trials bearing no. 469 of 2007 and 470 of 2007.

It would be appropriate to refer to the investigation, proceedings and evidence led during the trial right from the stage of FIR till the second statement of CW-1 Lalmuni Devi which was recorded on 29.09.2008. After the incident on 25.03.1995 at about 09.00 AM, the three injured were taken to the State Hospital Camp, Panapur. The Fard Bayan was registered on the oral statement given by one of the injured (later deceased) Rajendra Rai as recorded by Sub-Inspector N.N. Thakur at 10.30 AM. The said Fard Bayan was signed by the injured Rajendra Rai, two witnesses Narendra Singh, Sanjiv Kumar Singh and by the offi cer in-charge, Panapur Police Station, Camp Panapur. The Fard Bayan also bears the endorsement of Sub-Inspector N.N. Thakur forwarding it to the Police Station In-charge Masrakh under Sections 147, 148, 149, 307 IPC and Section 27 of the Arms Act for registering the report. Contents of the Fard Bayan have already been reproduced in the earlier part of this judgment.

On its basis, FIR was registered at P.S. Panapur as Case No. 62 of 1995 on 26.03.1995. The FIR contains endorsement of various authorities and Courts of its perusal. It also bears the endorsement that Section 302 IPC was added on 30.03.1995. On record is also available the Fard Bayan of Lalmuni Devi recorded during the investigation on 21.08.1995.

The statement of one Baidyanath Tiwari and one of the injured Smt. Devi recorded under Section 164 CrPC is also available on record. Baidyanath Tiwari stated that the incident of fi ring had taken place at around 09.00 AM. He was a teacher of Sanskrit in Gogal Singh High School Nayagaon, Chapra and on the relevant date was the Presiding Offi cer at the Polling Booth No.100. Around 09.00 AM, he noticed that four-fi ve anti-social elements, armed with fi re-arm weapons, started indiscriminate fi ring. In that group, there was one short height person who had covered his face. He further stated that the CRPF deputed at the Polling Booth and the patrolling party started fi ring in retaliation which created a stampede. At some distance, he noticed a couple of people having fallen down in which one was a woman. He further stated that he did not know whether the injured had received the injury from the fi ring of anti-social elements or the CRPF men. He however states that Prabhunath Singh was not one of those who were fi ring. He also states that he knew Prabhunath Singh from before. This statement was recorded on 23.05.1996 i.e. after more than one year from the date of the incident.

Smt. Devi’s statement under Section 164 CrPC was recorded on 17.05.1996. She had also stated that when she was returning home after casting her vote, a little ahead of the school where the polling was taking place from the fi eld of Raher (kind of Pulse), four-fi ve persons came out, they were armed. Some of them had covered their faces with piece of cloth and they started fi ring, as a result of which, she along with Rajendra Rai, Kadama Rai and Daroga Rai received injuries. Daroga Rai had died on the spot and Rajendra Rai fell unconscious. At that time, Prabhunath Singh was not there. She further stated that she knew Prabhunath Singh ever since he became a Member of the Legislative Assembly.

The chargesheet dated 29.08.1995 is also on record and bears an endorsement of the CJM dated 30.08.1995. The injury reports of Daroga Rai, Smt. Devi and Shri Rajendra Rai are also on record. The Post-mortem reports of both Rajendra Rai and Daroga Rai are on record.

The Trial Court had framed charges against the accused Krishna Nandan Singh, Shatrughan Singh, Santosh Singh, Sheetal Singh, Satyendra Singh and Harendra Singh on 26.05.2006 under Section 302/149, 147, 148 IPC and Section 27 of the Arms Act. On the same day separately, a charge was framed against Prabhunath Singh by the same Trial Court under Section 302 IPC and Section 27 of the Arms Act. On 27.07.2006, the statement of seven witnesses were recorded as follows: PW-1 - Parma Rai;] PW-2 - Harinath Rai; PW-3 – Kedama Ram; PW-4 – Harinder Rai; PW-5 – Dinanath Bhagat; PW-6 – Smt. Devi; PW-7 – Tarkeshwar Rai.

These witnesses i.e. PW-1 to PW-7 are mentioned as witnesses in the chargesheet. It is interesting to note that their statements are almost identical. The opening line is that they were giving this evidence on their own free will; that they had not come to depose under any coercion or threat; that nobody has kidnapped them and brought them for giving evidence. Very unusual opening of deposition by all these seven witnesses.

They further stated that on 25.03.1995 which is the date of incident, at about 09-09:30AM, they were returning after casting their votes when they heard shots being fi red; that they did not see who fi red the shots; Daroga Rai, Rajendra Rai and Smt. Devi had received fi re arm injuries; that they were returning along with the injured after casting their votes; that Police did not record their statements.

The prosecution requested for these seven witnesses to be declared as hostile and sought permission to cross-examine them, which was granted. The cross-examination by the prosecution of PW-1, PW-2, PW-4, PW-5, PW-6 and PW-7 is similar. However, insofar as PW-3 Kadama Ram is concerned, he was neither sought to be declared hostile nor was he cross- examined. All six witnesses denied having narrated to the Police regarding the incident supporting the prosecution story.

It would further be relevant to mention here that PW-1 was re- examined on 24.09.2008 pursuant to the directions issued by the Division Bench of the High Court on 13.03.2007. This time, he again came up with a similar statement that he had come to depose on his own accord and that he was not giving the statement under any coercion. The prosecution again was trying to further help the accused and tried to make up for the lacuna left earlier, as this time PW-1 mentioned the names of the persons he was accompanied with and deliberately did not take the name of CW-1. He further stated that all of a sudden fi ring started from the fi elds of Raher as a result of which Rajendra Rai, Smt. Devi and Daroga Rai received injuries. He further stated that the fi elds of Raher were dense and one feet higher than his height and as a result he could not see the persons who were fi ring. He further stated that he took the injured to the hospital at Panapur where the Doctor had referred them to the Chapra Sadar Hospital.

Rest of the witnesses did not come forward to give their statement pursuant to the directions of the High Court. However, they fi led their affi davits stating that they have nothing further to add and would only reiterate their earlier statements.

PW-8 and PW-9 were the security personnel who were on duty at the Polling Station. They only stated that they heard the sound of fi ring. They did not know who had fi red and who had been injured.

PW-10 is Dr. Sudhir Kumar, who had examined the injuries of three injured and had proved the injury report which was marked as Ex.2 (Smt. Devi), Ex.2/1 (Daroga Rai) and Ex.2/2 (Rajendra Rai). In the cross- examination, he states that all the injured were in sensitive condition and were badly injured so he immediately referred them to the Chapra Hospital for better treatment. He further states that no police person came to his hospital and recorded statement of any of the three injured persons. Again, he was re-examined on 24.09.2008 on the request of the Public Prosecutor in which statement he further strengthened the case of the defence by repeatedly stating that all the three injured were unconscious (at least three times).

PW-11 is Dr. Ashok Kumar Gada, who had conducted the post- mortem on the body of Daroga Rai, proved the post-mortem report that it was under his signature which was marked as Ex.3.

CW-1 Lalmuni Devi, in her original statement dated 03.11.2006,had stated that she had come to depose on her own; nobody has brought her; that she did not know anything about the case; that the Police had not recorded her statement at the Patna Medical College; that she did not put her thumb impression or signature on any document.

It would also be worthwhile to briefl y refer to the proceedings before the Trial Court after the judgement of the High Court dated 13.03.2007. a) Actual proceedings started on 13.06.2008 before the Trial Court at Patna. On the said date, on the request of the six accused they were allowed to remain on their previous bail. Thereafter fi ve-six dates were fi xed on which nothing substantial happened. b) On 08.09.2008, the Special Public Prosecutor moved an application under Section 311 CrPC stating that the prosecution wants to examine evidence of CW-1 Lalmuni Devi, PW-1 Parma Rai and PW-10 Dr. Sudhir Kumar who had already been examined earlier before the High Court. The case was ordered to be put up on 10.09.2008. The Trial Court allowed the application under Section 311 CrPC and ordered for recalling of the witnesses Parma Rai (PW-1) and Dr. Sudhir Kumar (PW-10). It further directed the Superintendent of Police, Chapra to produce the prime witness Lalmuni Devi (CW-1) and fi xed 24.09.2008 for their evidence.

With respect to the judgment of the acquittal dated 24.10.2008, a grievance petition was submitted by the seizure list witnesses, which was acknowledged by the then Inspecting Judge, Justice Navin Sinha, as he was then. The entire Sessions Trial Court records were called for and duly examined and studied by the Inspecting Judge. The Inspecting Judge noticed the glaring defi ciencies both deliberate and malicious, step by step. The Inspecting Judge not only noticed the deliberate mischief on the part of the Investigating Agency but also the Public Prosecutor and the Presiding Judge of the Trial Court in not discharging their pious duty of doing justice. The Inspecting Judge recorded that the trial that had been conducted by the Presiding Offi cer leads to only two possible conclusions, either the judgment is based on extraneous considerations or the Offi cer completely lacks judicial acumen.

The said report was placed before the Standing Committee of the High Court and considered in the meeting dated 07.07.2009 wherein it was resolved to accept the recommendation. Later on when the said minutes came up for confi rmation in the meeting dated 14.07.2009 it was resolved vide agenda item No.1(ii) that the recommendation made by the Inspecting Judge not only be accepted but be enlarged with further direction that the judgment in question dated 24.10.2008 be listed on judicial side before appropriate Bench for considering suo motu exercise of revisional power under CrPC. The said resolution of the Standing Committee is reproduced hereunder:

Resolution It is resolved to confi rm the proceedings of the meeting of the Standing Committee held on 7th July 2009 with the following modifi cations. i. Under the Agenda- Any other matter- it is resolved to place on record the appreciation of valuable contribution made by Hon’ble Mr. justice V.N. Sinha as a Member of Committee during his tenure, which has just expired (V.N. Sinha, J. Abstaining.) ii. In respect of Agenda Item No.5 of Vol.I the resolution will stand enlarged with a further direction that the judgment in question dated 24.10.2008 be listed on judicial side before appropriate Bench for considering suo motu exercise of revisional power under Code of Criminal Procedure. iii. In respect of Additional Agenda Item No.2 the resolution is modifi ed to the extent that shri Krishna Kant Tripathi shall also not be posted as Principal Judge in Family Court at Aurangabad but as District and Sessions Judge Nawadah and Shri Akhilesh Kumar Jain Shall be posted as District and Sessions Judge at Jehanabad instead of Nawadah.

It is on the decision of the Standing Committee that Criminal Revision No. 1345 of 2009 was registered with cause title as “The State of Bihar Versus Prabhunath Singh & Ors”. The Learned Single Judge dismissed the said criminal revision, vide impugned judgement dated 02.12.2011, giving rise to the present appeal.

Learned Single Judge of the High Court, while dismissing the revision, recorded the following fi ndings: a) Revisional Power is akin to the appellate power in view of Section 401 CrPC. b) Fard Bayan, turned into lodging of FIR, has not been proved by any witness. The offi cer or authority, who recorded the said statement, has not been produced as a witness. Moreover, it does not contain a certifi cation of the mental/physical health of the injured (later deceased). Besides, the non-production of any such witness, who was present and heard the statement being made, has not been produced as a witness. Hence, Fard Bayan is not liable to be read as evidence. c) PW-10, the doctor, who attended to the injured persons and had prepared the injury report, had stated that the three injured were unconscious. Hence, the deceased Rajendra Rai (the injured) was not in a position to make his statement (Fard Bayan/Bayan Tahriri). He also stated that Daroga Rai was very serious and accordingly, after having given fi rst aid, all the injured were referred to Sadar Hospital, Chapra. d) Dr B.D. Prasad had conducted the post-mortem of Rajendra Rai, but he was not produced in Court as a prosecution witness and the contention that his report could be admitted under Section 294 of CrPC, is unacceptable as the post-mortem report is not covered by the said provision. e) CW-1 Lalmuni Devi is not a hearsay witness, as held by the Trial Court, but is a tutored witness in view of her last two lines in cross-examination. (The High Court went one step further from the Trial Court in treating the CW-1 as a tutored witness.) f) Any other prosecution witness of fact does not corroborate the testimony of CW-1. Instead, their testimonies are against CW-1 as no other prosecution witness has stated about her presence. g) It was observed that although CW-1 was not named in the chargesheet but Pirbahor Police Station probably recorded her statement while she was attending to her injured son in the Primary Medical Health Centre (PMHC), which is suffi cient to indicate that her statement was recorded during the investigation. h) Zahira Sheikh’s judgement is not applicable as it relates to mayhem on account of communal hatred and disharmony, resulting in some mass massacres. The present case may have some political tinge, but that could not be of the same or deeper hue as was in Zahira’s case.

We have heard learned counsel for the parties and also perused the original record.

The arguments advanced on behalf of the appellant are briefl y summarized as follows: a) None of the issues fl agged in the report dated 04.05.2009 of the Inspecting Judge regarding the manner and illegality of trial of the case were considered much less in accordance with law. b) Trial of the case was not conducted as per directions vide order dated 13.07.2007 in Cr.WJC No. 717/2006 passed by the Division Bench of the High Court in the Habeas Corpus Petition. c) A case is made out for de-novo trial to cure the travesty of justice committed in a case wherein in a broad day light, two persons were done to death, apart from causing injury to another. d) Witnesses were not allowed to be properly examined and the trial of the case was not conducted by the Special Public Prosecutor as per directions of the High Court. e) The Special Public Prosecutor of the case was not competent person since he was not having practice as an advocate for ten years in terms of Section 24(8), CrPC. f) The fi ndings in the impugned order are perverse and erroneous and the evidences, available on record are not appreciated properly. g) The evidence of CW-1 has not been appreciated in accordance with law either by the Trial Court or the High Court. On the sole evidence of CW-1 the conviction of accused deserves to be recorded. h) Not a single Police Offi cer, including the Investigating Offi cer, was examined in the case showing clear malice.

On the other hand, learned senior counsel appearing for the Respondent Nos. 2 to 8 submitted as follows: a) That the judgment of the High Court and the Trial Court are just, valid and proper, based upon the evidence adduced during trial. b) It was a case of no evidence as all the witnesses turned hostile. c) Lalmuni Devi’s (CW-1) evidence was tutored and could not be relied upon. d) The FIR itself was not proved. e) The Doctor, who had examined the injured, had stated that they were in an unconscious state and as such also Rajendra Rai could not have been in a condition of narrating the incident. f) Neither the Investigating Offi cer nor any of the police offi cials, though may be formal in nature were produced. g) Scope of revision before the High Court was limited and so would be the status before this Court. h) No perversity or material irregularity have been found or argued by the learned counsel for the appellants. i) The present appeal, with its limited scope, deserves to be dismissed.

Learned counsel appearing for the State of Bihar has supported the appellant.

Before dealing and discussing the evidence led in the Trial Court, relevant facts relating to the manner in which the trial has been conducted, deliberate lapses on the part of the Public Prosecutor in leading the prosecution witness, lapses on the part of the Trial Court in not exercising the powers vested in it to ensure a fair and just trial, the facts mentioned in the reports of the Inspecting Judge and also the fi ndings recorded by the High Court in the Division Bench, need to be mentioned. Lapses on the part of the prosecution conducting the trial and that on the part of the Investigating Agency:

Briefl y the lapses are summarized as under: a) No explanation was given for not producing the scribe of the FIR. In case the scribe was not available for some reason then someone else from the police station could have been produced to prove the hand writing and signature of the scribe. b) The Investigating Offi cer not produced by the prosecution, is again a clear and deliberate lapse. c) Non-production of other prosecution witnesses of preparing the recovery/seizure list, inquest report, carrying the dead-body to the hospital, and absence of any eff ort to prove other formal aspects of the investigation clearly indicate malice and deliberate lapse on the part of the prosecution. d) The conduct of the Public Prosecutor in fi ling affi davits in evidence of the witnesses of fact despite directions of the High Court and further examining witnesses under 311 CrPC to strengthen the case of defence refl ects the tainted role of the Public Prosecutor.

The legal issues which arise for consideration in the present case may be summarized as under: A) Whether the Supreme Court, in appeal against acquittal, can consider the High Court’s judgement dated 13.03.2007 passed in the Habeas Corpus Writ Petition, which was not part of the evidence produced (although it was part of the Trial Court record) and was not relied upon by the prosecution before the Trial Court, as a piece of incriminating evidence in the nature of a Public Document and, if yes, up to what extent? B) Whether the previous or subsequent conduct of the accused, established on record, can be treated as a circumstance against the accused in view of Section 8 of the Evidence Act? C) Whether the FIR or Bayan Tahriri can be said to be proved as a piece of reliable prosecution evidence and if so, what would be the position of law on the issue of treating the FIR or Bayan Tahriri as the Dying Declaration? D) Whether the testimony of a Prosecution Witness (an old feeble, rustic, illiterate lady and mother of the deceased and an eye- witness of the incident), who stated in the end of her cross- examination that “her son (another alive son) had asked her to take the name of accused before the Court,” can be treated to be a reliable evidence against such accused, especially in view of the checkered and abnormal history of the case? Issue (A): - Relevance and admissibility of the FIR:

According to the general procedure, facts need to be proved by adducing evidence in the Court of law, and the evidence must be produced in accordance with the procedure mentioned in the Indian Evidence Act, 1872. The doctrine of judicial notice, as provided under Section 56, is an exception to this rule.

Section 56 of the Evidence Act says that “No fact of which the Court will take judicial notice need to be proved.” Section 57 of the Evidence Act goes one step further by providing that the Court has no other option but to take judicial notice of the facts mentioned in the list given in the Section as it uses the word “shall” and not “may”. Section 58 of the Evidence Act says that if the parties or their agents have agreed to admit a fact during the court proceeding or in writing before the hearing, then such fact need not be proved unless the Court believes that it needs to be proved. The aforementioned three Sections i.e. 56 to 58 of the Evidence Act are reproduced hereunder: “56. Fact judicially noticeable need not be proved.––No fact of which the Court will take judicial notice need be proved.

57. Facts of which Court must take judicial notice.––The Court shall take judicial notice of the following facts: –– [(1) All laws in force in the territory of India;] (2) All public Acts passed or hereafter to be passed by Parliament 1 [of the United Kingdom], and all local and personal Acts directed by Parliament 1 [of the United Kingdom] to be judicially noticed; (3) Articles of War for [the Indian] Army [Navy or Air Force] (4) The course of proceeding of Parliament of the United Kingdom, of the Constituent Assembly of India, of Parliament and of the legislatures established under any laws for the time being in force in a Province or in the States;] (5) The accession and the sign manual of the Sovereign for the time being of the United Kingdom of Great Britain and Ireland; (6) All seals of which English Courts take judicial notice: the seals of all the [Courts in [India] and of all Courts out of [India] established by the authority of [the Central Government or the Crown Representative]; the seals of Courts of Admiralty and Maritime Jurisdiction and of Notaries Public, and all seals which any person is authorised to use by [the Constitution or an Act of Parliament of the United Kingdom or an] Act or Regulation having the force of law in [India]; (7) The accession to offi ce, names, titles, functions, and signatures of the persons fi lling for the time being any public offi ce in any State, if the fact of their appointment to such offi ce is notifi ed in [any Offi cial Gazette]; (8) The existence, title and national flag of every State or Sovereign recognised by 10[the Government of India]; (9) The divisions of time, the geographical divisions of the world, and public festivals, fasts and holidays notifi ed in the Offi cial Gazette; (10) The territories under the dominion of 10[the Government of India]; (11) The commencement, continuance and termination of hostilities between [the Government of India] and any other State or body of persons; (12) The names of the members and offi cers of the Court, and of their deputies and subordinate offi cers and assistants, and also of all offi cers acting in execution of its process, and of all advocates, attorneys, proctors, vakils, pleaders and other persons authorised by law to appear or act before it; (13) The rule of the road [on land or at sea]. In all these cases and also on all matters of public history, literature, science or art, the Court may resort for its aid to appropriate books or documents of reference. If the Court is called upon by any person to take judicial notice of any fact, it may refuse to do so unless and until such person produces any such book or document as it may consider necessary to enable it to do so.

58. Facts admitted need not be proved.––No fact need be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule of pleading in force at the time they are deemed to have admitted by their pleadings: Provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions.”

We are concerned with Section 56 of the Evidence Act, which deals with the authority of a Court to accept certain facts, which are either of common knowledge or from sources which guarantee the accuracy or are a matter of authoritative offi cial record or court record, without the need to establish such fact. The judicial notice of any fact is taken when the facts cannot reasonably be doubted.

This Court, in its various pronouncements, has taken support of Section 56 of the Evidence Act to do substantial justice in respective matters. Some of them are being reproduced hereinafter to get a better picture of how judicial notice is taken: a) In the case of State of Kerala v. Unni3, in paragraph 27 it has been held as follows: “27. Judicial notice can be taken of the fact that each village would not have a chemical laboratory where the process of analysis of ethyl alcohol can be carried out.” For example, if a sample is taken in a village, by the time sample is sent for and is analysed, the volume of ethyl alcohol may increase. Although we are informed that some chemical is mixed when a sample is taken, no material has (Emphasis added) been placed in that behalf. b) In the case of Prabhakara v. Basavaraj K.4, it was observed in paragraph no. 21 as follows: “21. A relief can only be on the basis of the pleadings alone. Evidence is also to be based on such pleadings. The only exception would be when the parties know each 3 4