Patna High Court
Case Details
1 IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.21695 of 2012 ====================================================== Anshu Kumar Singh @ Anshu Kumar, S/o Shivchandra Singh, R/o Village- Ganga Pipar, P.S. Chiraiya, District- East Champaran. .... .... Petitioner. The State of Bihar Versus .... .... Opposite Party. ====================================================== Appearance : For the Petitioner/s : Mr. For the Opposite Party/s : Mr. ====================================================== CORAM: HONOURABLE MR. JUSTICE GOPAL PRASAD ORAL ORDER 3 04.09.2013. Heard. 1. This is a petition for quashing the order dated 07. 04. 2012 passed by the Additional Sessions Judge, F.T.C. IV, by which he has been rejected the petition filed under Section 227 of Code of Criminal Procedure for discharge the petitioner. 2. The prosecution case as alleged in the First Information Report by the informant Abhishek Kumar Rai that about 9 A.M. his elder brother Alind Rai disclosed that Abhay Sahi has decided to send his uncle Parma Sahi to compromise the case and hence if Parma Sahi comes then intimate him (Alind Rai). Thereafter, it is alleged that Parma Sahi along with one unknown person came and then the 2 informant took them to be to his brother, namely, Alind Rai and then Parma Sahi disclosed that the said unknown person was Shashi Bhushan Singh @ Fauji who is his Bhagna. At that time except informant and his brother Alind Rai there was Parma Sahi, Raj Kumar Rai, Ashok Kumar Soni, K. P. Singh, Alok Kumar Jha, Diwakar Sharma, Mukesh Thakur and Deepak Kumar Rai were present. At about 11 A.M. the
Facts
informant went on the first floor and slept there and about 12.45 P.M. he heard sound of firing then he got up and saw from the eastern window that Parma Sahi armed with pistol and Shashi Bhushan Singh armed with revolver fired towards the window and they flee away on two motorcycles. When the informant went in the room of his brother then he saw Alind Rai having been fallen besmeared with blood with heavy fire arm injury on his side. The informant took his brother to J. K. Hospital at Bettiah by private jeep, who died during treatment. 3. On the Fardbeyan of the informant F.I.R. was lodged and after investigation charge sheet submitted. The cognizance was taken against two named accused persons and 3 the petitioner who was not named in the F.I.R. After commitment, the case was placed before the Additional Sessions Judge, Bettiah. 4. A petition was filed under Section 227 of Code of Criminal Procedure that this petitioner has neither been named in the First Information Report nor there is any eye witness to the occurrence nor any legal evidence against him and only material in the case diary against the petitioner is the confessional statement of the petitioner itself recorded by the police while petitioner was in police custody during investigation. The confessional statement before the police during custody is no legal evidence as is inadmissible in evidence and there is neither any recovery nor the petitioner has been identified by any witness. Hence there is nothing to indicate implication of the petitioner except alleged confessional statement before the police in police custody, which is inadmissible in evidence and there is no material against the petitioner to warrant framing of charge and hence required to be discharged. 5. The Trial Court rejected the petition under 4 Section 227 of Cr.P.C. on the ground that F.I.R., though, petitioner was not named, but the F.I.R. mentions that besides named accused in the F.I.R. some other unknown persons were present along with named accused who were involved in conspiracy of the murder of the deceased and they had helped the F.I.R. named accused in escaping out from the place of occurrence and in confessional statement of this petitioner, he has confessed his involvement, and, though, it is true that there is no legal value of confessional statement before the police in police custody unless confession leads to recovery, but except confessional statement of the petitioner, there are also call details report of mobile phone of this petitioner and other co-accused which are also on record which also corroborates the involvement of the petitioner in the occurrence and so there is sufficient evidence and material to reject the petition of discharge and hence trial court rejected the petition under Section 227 of Cr.P.C.
Legal Reasoning
out prima facie case for involvement of the petitioner on the ground that said mobile phone not belongs to the petitioner. 7. Learned counsel for the State however contends that communication between the petitioner and the accused persons on the said mobile indicates some nexus between them. 8. However reading the Section 227 and 228 of Cr.P.C. in juxtaposition, it apparent that the charge can be framed on presumptive opinion on the material evidence 7 collected during investigation taking the evidence true on face value without meticulously judging, but if the Judge consider that there is no sufficient ground for proceeding against the accused he shall discharge the accused and record his reason for the same. However, it is relevant to quote part of para 4 of the decision reported in 1977 SC 2018; “if the evidence which prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is a challenge in cross- examination or rebutted defence evidence, if any cannot show that the accused has committed the offence then there will be no sufficient ground for proceeding with trial. 9. It is relevant to quote part of para 18 A.I.R. 1980 SC 52; “ ….. At this stage even a very strong the material suspicion founded on before Magistrate which lead to form a prosecution opinion as to existence of the factual ingredient constituting the office…..”. 10. The trial court however in impugned order held that the material found against the petitioner is the confessional 8 statement of the petitioner in police custody which is inadmissible in evidence. But observed that there are some call details which corroborate the implication of the petitioner. 11. Hence the only evidence is that petitioner received a call from the mobile by which intimation given to the reporter of “Prabhat Khabar”. 12. However the trial court held that the confessional statement has no value unless lead to recovery, but has held that there are sufficient evidence on record in as call details report of mobile phone of the petitioner and other accused which is quite vague regarding the involvement of
Arguments
6. Learned counsel for the petitioner contends that trial court has fully misconceived in rejecting the petition under Section 227 of Cr.P.C. The allegation made in F.I.R. is 5 that two persons have been named accused in the F.I.R. are Parma Sahi and Shashi Bhushan Singh @ Fauji and there are some unknown persons, but neither the name of the petitioner not any description of the petitioner is mentioned in the F.I.R., though, it is stated in F.I.R. that two persons flee away on motorcycle and three persons have been named as accused in F.I.R. as Abhay Sahi, Parma Sahi and Shashi Bhushan Singh and two unknown persons. There is nothing has been found during the investigation about two unknown persons, neither any recovery nor any Test Identification Parade of the petitioner conducted to identify him as person present on spot. During investigation the petitioner’s name transpired in view of fact that one Mani Kant Mishra, a reporter of “Prabhat Khabar” received a message on his mobile from mobile phone bearing SIM No. 9199989759 that caller was one Shashi Bhushan Singh @ Fauji told Manikant Mishra that the caller had killed Alind Rai and said Fauji (the caller) requested the reporter to publish the news in the newspaper. During investigation, the police found that from the same mobile number a call of 91 seconds was made on mobile no. 6 8064603032 was received from mobile no. 9199989759 by which the caller had intimated to Manikant Mishra and then police enquired and found the said mobile number 8064603032 belongs to the petitioner and arrested the petitioner and created fake confessional statement of the petitioner implicate him in the case. Hence it is contended that confessional statement before the police by the petitioner in police custody is not at all legal evidence and is not even required to look into for framing of charge. Further call received on mobile no. 8064603032 from SIM No. 9199989759 does not corroborate the allegation and making
Decision
the petitioner and hence the impugned order is set aside and the case is remanded back for consideration afresh. 13. Accordingly, the petition is allowed. m.p. (Gopal Prasad, J)