Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.50186 of 2007 ========================================================= Md. Lliyaas @ Md. Aliyaas Alam, son of late Zainuddin, resident of village Negora Duba, P.S. Galgalia, Distt. Kishanganj. Versus .... .... Petitioner/s The State of Bihar Gopal Agrawal @ Gopal Prasad Agrawal, son of Tarachand Agrawal, 1. 2. resident of Thakurganj, P.s. Thakurganj, Distt. Kishanganj. 3. Lal Dhanuka, resident of Thakurganj, P.S. Thakurganj, Distt. Kishanganj. Tarachandra Agarwal @ Tarachand Dhanuka, son of late Rameshwar .... .... Opposite Party/s ========================================================= Appearance : For the Petitioner/s : Mr. Prashant Sinha, Adv. Mr. Bindhyachal Singh Upadhyaya, Adv. Mr. Ashwini Kr. Adv. For the State : Mr. R.B. Roy ‘Raman’, A.P.P For the Oppsite Party No.: Mr. Raju Giri, Adv. Mr. Vikas Ratan Bharti, Adv. ================================================= CORAM: HONOURABLE JUSTICE SMT. ANJANA PRAKASH ORAL JUDGMENT Date: 21.08.2013 Anjana Prakash, J:
Legal Reasoning
Heard learned counsel for the Petitioner and the State. 2. The Petitioner seeks quashing of the order dated 21.5.2007 passed by the Chief Judicial Magistrate, Kishanganj, in Thakurganj P.S. Case No. 125 of 2002 (G.R. No. 566 of 2002). 3. The background facts of the case is that the Petitioner instituted a case on 7.8.2002 to the following effect: 4. That on a certain date when he and others were sitting after having performed the last rites of one Firoz, Gopal Opposite Party No. 2 came there. While every one was talking as to how Firoz had died, Gopal stated that Firoz had died on account of brain haemorrhage but the villagers protested saying that Firoz was Patna High Court Cr.Misc. No.50186 of 2007 dt.21-08-2013 2/6 not suffering from any illness. Then Gopal left saying that he would send Sanjay who may be given the entire report. However, Sanjay did not come on account of which the villagers were upset. Gopal then called them but they did not go. Then Tendu Lal and Ganesh were sent to his house with a message that Gopal was calling him. 5. He further narrated that about 4-5 days back, he had gone to the house of the Gopal where Tarachand remarked in the presence of Gopal, that he was trying to instigate the villagers against them which would be the detrimental to his interest. He then told Tarachand that he would say what was the right and he may do whatever he wanted. The further narration was that his brother Mohammadin used to teach children at Thakurganj. Tarachand called him to his house about three days back and when he returned, the deceased told them that he was threatened by him that if they instigate the villagers, he would be killed on account of which he was very scared. The Informant then locked up the house where the deceased used to teach the children at Thakurganj and told everyone that his brother would not henceforth teach them. 6. Later on, he along with the deceased and Manzoor went to depose in the case of the murder of Firoz and returned late at night. His brother, deceased had slept on the Verandah. At around 4 A.M. his sister-in-law(Bhabhi) Sailiya Khatoon woke him up and told him that the deceased was missing from his bed. At around 4.30 A.M., Patna High Court Cr.Misc. No.50186 of 2007 dt.21-08-2013 3/6 one child along with Idris came and told them that the dead body of the deceased was hanging from a tree. He suspected that on account of the murder of Firoz, Gopal Agrawal, Tarachand Agrawal, Rajesh, Laxmi Roy, Dev Mohan Roy, Jyotish, Sibu and Dolu were involved in the present occurrence. 7. When investigation proceeded, on 20.8.2002, the wife of the deceased was examined in paragraph-124 of the case diary. She stated that on the night of 6.8.2002 three persons came on the Motorcycle and started talking to her husband and when she asked her husband as to who they are, he said that they were the men of Tara Babu and had come for certain information. On the same night, accused Gopal, Laxmi, Pradeep and Rajesh came to their house and woke up her husband saying that Tara Babu had called him at the kiln. When she stopped her husband from going with them, she was threatened. The next day, when the deceased did not return, everyone started to look for him and then it was found out that the dead body was hanging from the tree. She alleged that since Md. Iliyas and Manzoor Ali were witnesses in the case of murder of Firoz, therefore, her husband had been killed. 8. On 11.11.2002 charge sheet was submitted as against the Opposite Party No. 2 and 3. They then moved this Court praying for an independent investigation into the matter when this Court directed that a high ranking Police Officer conduct an Patna High Court Cr.Misc. No.50186 of 2007 dt.21-08-2013 4/6 investigation. Then the wife of the deceased was examined under Section 164 Cr. P.C. on 23.6.2005 stating therein that on the night of occurrence, her husband had left with the Petitioner who was the Informant and his brother and Manzoor and did not return till next morning. She learnt later that the body of her husband was found hanging on the tree. 9. This time, on the basis of this statement, charge sheet was submitted also against the Petitioner, upon which the impugned order was passed, sending the Petitioner on trial even while exonerating the rest of the accused. 10. The counsel for the Petitioner submits that the Magistrate committed an error in law in passing such a detailed order as though he was holding a Trial. 11. On the other hand, the counsel for the private Opposite Parties submits when an investigation was carried out through a high ranking Officer and on finding no materials against the Opposite Parties, the Magistrate did not commit any error in law, in exonerating them upon fully appraising the facts of the case. 12. The case diary was called for in the present case which has been perused and placed by the learned A.P.P. 13. Admittedly, the First Information Report has been filed with vague suspicion having been expressed against the Opposite parties No. 2 and 3 and some others on account of the earlier Patna High Court Cr.Misc. No.50186 of 2007 dt.21-08-2013 5/6 occurrence. There is no eye witness to the actual occurrence of murder of the deceased. 14. During investigation, the wife of the deceased disclosed on 29.8.2002 i.e. eighteen days after the occurrence that the deceased had been taken away by the Opposite Party No. 2 at the behest of the Opposite Party No. 3. However, there is no account as to how the deceased was killed. She apparently is not an eye witness to the actual murder. It also appears that on 11.3.2004 when she was examined she stated that she did not identify anyone who had come to call her husband which was apparently not in conformity with her earlier statement. Subsequently, she once again changed her version on 26.2.2005 in her statement recorded under Section 164 Cr. P.C wherein she stated that the deceased had left with the Petitioner i.e. his brother and one Manzoor. Hence, at three different points the very same witness upon whom the entire case is based, has stated three different things which are totally vague. Even if the same is accepted, fact of the matter is that apart from the two sets of accused persons of having been allegedly last seen with the deceased, there is no further material against any of them. Hence, in my opinion, the Trial of any of the sets of accused in such circumstances would be an exercise in futility. 15. In view of such, the application is allowed and the entire proceeding including the order of cognizance dated 21.5.2007 Patna High Court Cr.Misc. No.50186 of 2007 dt.21-08-2013 6/6 to the extent that the Petitioner had been summoned, passed by the Chief Judicial Magistrate, Kishanganj, in connection with Thakurganj P.S. Case No. 125 of 2002 (G.R. Case No. 566 of 2002) is, hereby, quashed. (Anjana Prakash, J.) Patna High Court, Patna. Dated, the 21st August, 2013. NAFR/S.Ali