Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.44575 of 2008 ====================================================== Ram Pravesh Yadav son of Sri Tula Yadav, resident of village Barvadohari, P.S. Harihar Ganj, P.O. Hariharganj, District Palamu (Jharkhand) Versus .... .... Petitioner/s 1. The State of Bihar 2. Ram Swarath Paswan S/o not known, the then Officer Incharge, Kutumba Police Station, District Aurangabad .... .... Opposite Party/s ====================================================== Appearance : For the Petitioner/s : Mr. Rameshwar Singh, Advocate For the Opposite Party/s : Mr. R.B.S. Pahepuri, A.P.P. ====================================================== CORAM: HONOURABLE JUSTICE SMT. ANJANA PRAKASH ORAL ORDER 5 12-07-2013 Supplementary affidavit filed today on behalf of the Petitioner be kept on the record. The Petitioner seeks quashing of the order dated 20.4.2007, by which the Chief Judicial Magistrate, Aurangabad has dismissed Protest-cum-Complaint case No.889 of 2006.
Legal Reasoning
The background facts of the case is that on 30.10.2003 one Kameshwar Yadav, an under trial detenu in police custody, gave a fard beyan stating therein that another detenu, namely, Mahesh Yadav had committed suicide by wrapping his neck round a piece of lungi. On the basis of such statement Kutumba P.S. case No.96 of 2003 under Section 309 I.P.C. was instituted against the deceased. A postmortem report was conducted by a Board of Doctors which concluded that on inspection the neck was found extended and a circular ligature mark was found at the back of the Patna High Court Cr.Misc. No.44575 of 2008 (5) dt.12-07-2013 2 neck at the level of 2nd vertibras, extending anteriorly upto the chin. The death was said to have been caused on account of asphyxia. The doctors did not find any other external injuries on the person of the deceased. In due course, charge sheet was also submitted in the matter. Almost three months later, on 16.1.2004 the brother of the deceased filed a Complaint stating therein that he got information that his brother was being beaten up by some persons at the Bazar, at which the Officer Incharge of Hariharganj came there and enquired into the matter. The bystanders ran away but the Officer learnt that there was some case against him in Kutumba P.S. Thereafter the Officer Incharge of Hariharganj P.S. took Mahesh Yadav to Kutumba Police Station and handed him over to the Officer Incharge to find out as to whether any case was pending against him. When the Complainant learnt about this occurrence on 27.10.2003 he went to meet his brother at the Police Station. There allegedly, the deceased told him that the Officer Incharge was enquiring from him as to whether there was any case pending against him as also about M.C.C. He was then variously assaulted by the Officer Incharge on account of his non-disclosure. The Complainant and the other witnesses left the Police Station assuring him that they would return to him in a couple of days. On Patna High Court Cr.Misc. No.44575 of 2008 (5) dt.12-07-2013 3 29.10.2003 when he went to meet his brother once again, his brother allegedly told him that the Officer Incharge had climbed on his chest and had put stick under his neck in presence of another Constable, on account of which he was not feeling well. The deceased apprehended that he would die on account of such assault. On 30.10.2003 the Complainant learnt from some persons that a person had died in police custody, at which he went to Kutumb Police Station. There he learnt that the dead body was sent to Aurangabad for postmortem examination. He was allegedly told by the Petitioner that the deceased was a veteran criminal and had died. Then they got his dead body from Hariharganj Police Station on 30.10.2003. He alleged that the Police Officer at Kutumba P.S. had committed the murder of his brother and, therefore, they should be prosecuted. This Complaint was sent for investigation under Section 156(3) Cr.P.C. and a substantive case was instituted but the allegations were found untrue and, therefore, final report was submitted in the matter on 31.5.2005. The Petitioner thereafter filed a protest petition, which was treated as a Complaint and the witnesses were examined. However, the Magistrate on meticulous examination of the statements of the witnesses came to the conclusion that no offence Patna High Court Cr.Misc. No.44575 of 2008 (5) dt.12-07-2013 4 was made out. The Petitioner also approached the Human Rights Commission, but despite notices on the Police Officers, they did not appear. Learned Counsel for the Petitioner submits that the Magistrate while passing the order dated 20.4.2007 has committed a gross error inasmuch as he has examined the Complaint and the statement of the witnesses in such detail as though he was passing final judgment in the matter. He also seems to have considered the counter version i.e. Kutumba P.S. case No.96 of 2003 and hence the order is bad in law. The Counsel for the Petitioner relies on a judgment reported in 2007(1) PLJR page-392, wherein the High Court had deprecated the conduct of the Magistrate in examining the Complaint in full detail at the stage of cognizance. He also places reliance on a judgment reported in 2007(1) PLJR page-676 on the same point. He also submits that the postmortem examination report would reveal that circumstantially the case of the Complainant is well supported and, therefore, the Complaint should not have been dismissed in limine. There is no doubt that the Magistrate at the stage of cognizance is not to meticulously examine in detail the Complaint Patna High Court Cr.Misc. No.44575 of 2008 (5) dt.12-07-2013 5 but since the present application is one filed under Section 482 Cr.P.C. I would apply myself independently on the facts of the case. Admittedly the first occurrence is said to have taken place on 26.10.2003. The Complainant is said to have met his brother on 27.10.2003, on which date he learnt from him that the Officer Incharge Kutumba Police Station had assaulted him. He did not take any steps at that stage. He thereafter again visited him on 29.10.2003 when the deceased told him in great detail about the manner in which he had been assaulted. However the Complainant once again did not take any action upon such facts narrated to him by his own brother. He reports the matter only on 16.4.2004 i.e. almost three months later which raises a reasonable suspicion as to whether the Complaint filed so belatedly has any substance in it. The submission of the Petitioner is that in the mean while he had sent a fax message to the National Human Rights Commission but I find that even that letter is dated 13.11.2003 i.e. 12 days after the occurrence. The submission of the Petitioner that a criminal writ was filed by way of Cr.W.J.C. No.848 of 2007 i.e. four years later is also evidently a belated step on behalf of the Petitioner since the occurrence had taken place in the year 2003. Patna High Court Cr.Misc. No.44575 of 2008 (5) dt.12-07-2013 6 Also from the postmortem examination report, I find that a Board of the doctors had examined the dead body on 30.10.2003 but did not note any external injuries on the person of the deceased. They concluded that death had been caused due to asphyxia which supports the story as given out by the Informant in Kutumba P.S. case No.96 of 2003. Under these circumstances, I find no merit in the application. The same is dismissed. (Anjana Prakash, J) Narendra/-