Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No. 48673 of 2008 =============================================== Rajesh Kumar Tiwary, Son of Anil Kumar Tiwary, resident of mohalla-Satish Sarkar Lane, Masakchak, P.S.-Kotwali, Distt.-Bhagalpur. .... .... Petitioner/s Versus 1. The State of Bihar. 2. Dilip Kr. Mishra, S/o Sri Satya Narain Mishra, R/o Mohalla-Masakchak, Pani Tanki, Ghantaghar, Chowk, Kotwali, Bhagalpur. .... .... Opposite Party/s =============================================== Appearance : For the Petitioner/s : Mr. Rana Pratap Singh, Sr. Adv. Mr. Anil Kumar Sinha, Adv. Mr. Ravindra Kumar, Adv. For the Opposite Party/s: Mr. B.P. Pandey, Sr. Adv. Mr. Pravin Kumar Sinha, Adv. Mr. Suresh Chandra Giri, Adv. For the State : Dr. Indiwar Kumari, APP. =============================================== CORAM: HONOURABLE JUSTICE SMT. ANJANA PRAKASH ORAL ORDER 24. 11.07.2013 The Petitioner seeks quashing of the entire proceeding including the order of cognizance dated 06.11.2008 passed by the Chief Judicial Magistrate, Bhagalpur in Kotwali P.S. Case No. 464/99. The background facts of the case is that on 24.08.1999 at 11 A.M. one Satyanarayan Mishra gave a ferdbeyan before the Officer In-charge, Kotwali P.S. at the hospital claiming himself to be the father-in-law of the deceased. He stated that his daughter-in-law used to live with her husband in a rented accommodation at Masakchak Mohalla. His son and
Legal Reasoning
Patna High Court Cr.Misc. No.48673 of 2008 (24) dt.11-07-2013 2 daughter-in-law used to come to his house every day. On the previous day i.e. 23.08.1999 she came to his house and made tea for him whereafter she expressed her desire to go back to her house. However, he requested her not to go since her husband had left for Patna. She pleaded that she be permitted to go since her clothes were wet and that she would return after washing the same. Saying this she left for her home. At around 11 A.M. he received information that his daughter-in-law was in a restless condition with a stomache ache and was saying that she had consumed poison. On the advice of others he immediately removed her to the hospital around 2 o’clock in the afternoon but she could not be saved. His son allegedly returned from Patna on 24.08.1999 in whose presence he gave the present statement at the Hospital upon which U.D. Case numbered as 15/99 was instituted. A Post-mortem was conducted and the Doctors opined that death had been caused on account of grain preservative ‘CELPHOS’. It appears while the investigation of the case was still underway seven days later on 30.08.1999 the son of the informant and husband of the deceased Patna High Court Cr.Misc. No.48673 of 2008 (24) dt.11-07-2013 3 filed a Complaint before the Chief Judicial Magistrate stating therein that on 23.08.1999 when he returned from Patna at about 11 P.M. and reached home he found his house silent and apart from the children none else was present. The children informed him that the rest of the family members had gone to the hospital where the condition of his wife was serious. He then immediately proceeded to the hospital and found his parents and other family members crying. He asked his father as to what had happened. At this the father informed him that at about 10 A.M. on 23.08.1999 one Pramod who was an employee of the Petitioner had come and taken the keys of the Office. A little while later as an every day routine his daughter-in-law left for the Office. One hour later the said Pramod came back and told the informant’s father that she had called them immediately. When they reached there they found the deceased lying on a cot in a restless condition who stated that had she listened to the advice of her mother-in-law such an occurrence would not have taken place. The parents of the informant tried to ask her as to what had happened but she only uttered the name of the Petitioner. The parents of the informant became very Patna High Court Cr.Misc. No.48673 of 2008 (24) dt.11-07-2013 4 apprehensive about her health and immediately took her to the hospital where during treatment she died. The further narrative was that the Petitioner was using half of his official residence as Office Premises. However, his conduct was not good. While the family was busy in getting the post-mortem conducted and the last rites performed the Petitioner along with others came into the house and removed the office furniture worth about a lakh of rupees. By this act, the Complainant deduced that the Petitioner by way of a well-planned conspiracy with others had committed the murder of his wife. Further, on 06.08.1999 the Petitioner is also said to have forcibly got him to sign to blank papers and threatened him of dire consequences. He also complained that no First Information Report had been instituted nor was any action being taken against the accused persons. This Complaint was sent for investigation u/s 156(3) Cr.P.C. upon which the present case was instituted u/s 302/120B/380/384 IPC. It appears that on 06.09.2000 the S.P. Bhagalpur issued Report No. III that the Petitioner and other FIR named accused persons be arrested and questioned since prima facie suspicion had been Patna High Court Cr.Misc. No.48673 of 2008 (24) dt.11-07-2013 5 raised against them. On 16.10.2000 the Petitioner represented before the ADGP, Bhagalpur Zone requesting him to withdraw the warrant of arrest issued by the S.P. Bhagalpur and for an indepth investigation into the matter because in all probability the in-laws had committed this act for the reason of misappropriating the life insurance amount of the deceased. After receipt of such representation ADGP issued a communication dated 25.10.2000 to the S.P. that till there was concrete materials against the Petitioner his liberty which was precious should not be jeopardized. Subsequently, on 28.07.2004 the Dy.S.P. Bhagalpur issued a Prosecution Report and directed the Investigating Officer to arrest the FIR accused persons, even though no witness had been examined or further material collected against the accused persons after the direction of the ADGP dated 25.10.2000. Subsequently, on 10.09.2004 the Investigating Officer filed an application before the Court praying for issuance of warrants of arrest against the accused persons which the Magistrate allowed and the same was received by the Patna High Court Cr.Misc. No.48673 of 2008 (24) dt.11-07-2013 6 Investigating Officer on 02.08.2006. In the meanwhile soon after an application for issuance of warrants of arrest was filed by the Investigating Officer on 09.11.2004 the S.P. looked into the materials and noted that the version of the Informant contradicted that of his father. He also took note of the various communications of the higher officials and that their directions had not been carried out. He commented that several aspects including motive needed to be investigated and therefore directed that the Investigating Officer conduct follow- up action on the directions of the higher officials. However, once again without holding any further investigation, since warrant of arrest had been received on 20.08.2006 by the Investigating Officer he filed a Petition on 17.10.2007 praying therein for issuance of an order under Sections 82 and 83 Cr.P.C. which was allowed by an order dated 17.11.2007. In fact before the said application was filed by the Investigating Officer, the ADGP, Bhagalpur had issued a letter to the S.P. Bhagalpur dated 27.07.2007 that a comprehensive report be submitted in the matter. He noted in his communication that the deceased had left a suicide note taking responsibility Patna High Court Cr.Misc. No.48673 of 2008 (24) dt.11-07-2013 7 for her death as also that three witnesses in their statements recorded u/s 164 Cr.P.C. had alleged complicity of the Informant. In such circumstances a further investigation be held in the matter. On 23.10.2007, the ADGP, Bhagalpur once again issued a communication to the S.P. that he was himself enquiring into the matter on the direction of the Police Headquarters and till the conclusion of the same, the Petitioner be not proceeded against. The S.P by letter dated 25.06.2008 directed the Investigating Officer to record the statement of important witnesses including the parents of the deceased and conclude the investigation expeditiously. In the meanwhile, since the Petitioner was apprehensive that the directions of the higher officials were not being followed he filed Cr.W.J.C. No. 312 of 2007 for quashing the order dated 17.11.2007 by which the Judicial Magistrate, issued the order of attachment in the light of warrant of arrest issued against him on 15.09.2004. A Counter-Affidavit was then filed on behalf of the Dy.S.P. Bhagalpur on 03.09.2008 before this Court that there was no material forthcoming against the Petitioner and the Investigating Officer had been Patna High Court Cr.Misc. No.48673 of 2008 (24) dt.11-07-2013 8 directed to file an application before the Court for recall of warrant of arrest issued against the Petitioner and other accused persons. On such statement, Cr.W.J.C. No. 312 of 2007 was withdrawn. However, when the Investigating Officer filed a Petition on 04.09.2008 before the Magistrate for recall of warrant of arrest against the Petitioner he was asked to explain as to why warrant of arrest had not been executed against the accused persons despite such an order earlier. It was immediately thereafter on 27.10.2008 that charge-sheet was submitted under Section 306/34 IPC and cognizance was taken upon the same. The submission of the Petitioner is that the categorical stand of the Investigating Agency before this Court was that there was no material forthcoming against Petitioner despite which it submitted charge- sheet, evidently on account of the show-cause notice having been issued by the Magistrate for non- execution of the warrant of arrest. The Petitioner further submits that the liberty of a citizen is extremely precious and should not be curtailed or dealt with without an application of mind. The Magistrate having done so the order of cognizance is Patna High Court Cr.Misc. No.48673 of 2008 (24) dt.11-07-2013 9 bad. On the other hand, the Counsel for the Informant submits that even though there is no cogent material against the Petitioner but on the allegation that the deceased had uttered his name he should be put on trial. I find that there is no dispute that initially the father of the present informant had filed a substantive case about the deceased having consumed poison who subsequently died in the afternoon. This statement was given in presence of the Informant. Hence informant’s later allegation that at 11 P.M. when he returned his parents told him that the deceased had uttered the name of Petitioner appears to be unreliable. There was no reason as to why the in-laws of the deceased who were the only persons present at the time she took ill would not give the true version before the Police at the first instance. Moreover, even if the deceased had uttered the name of the Petitioner it is difficult to assume that it was in the context of abetting her to commit suicide and not in any other. This material does not even raise a reasonable suspicion against him and hence to put a person on trial on this sole material would be Patna High Court Cr.Misc. No.48673 of 2008 (24) dt.11-07-2013 10 against the interest of justice. Also there is mention that the deceased had left a suicide note taking responsibility of her act under which circumstances to allege that the Petitioner had abetted the suicide is apparently baseless. Evidently, there is no material to this effect or any evidence disclosing the complicity of the Petitioner as admitted by the Investigating Agency before this Court on 03.09.2008. I also find that the First Information Report filed after seven days also mentions that there was some kind of dispute between the parties with regard to the Office premises hence the possibility of the version given by the Informant belatedly for ulterior reasons cannot be ruled out. In such circumstances, the order of cognizance on baseless allegations is fit to be set aside. Considering such aspects of the matter, the application is allowed and the entire proceeding including the order of cognizance dated 06.11.2008 passed by the Chief Judicial Magistrate, Bhagalpur in Kotwali P.S. Case No. 464/99 is, hereby, set aside. Vikash/- (Anjana Prakash, J.)