Patna High Court
Dineshwar Kumar & Anr vs State Of Bihar & Anr on 31 January, 2011
Author: Rakesh Kumar
Bench: Rakesh Kumar
CRIMINAL MISCELLANEOUS No.28816 OF 1999
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In the matter of an application under Section
482 of the Code of Criminal Procedure,1973.
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1. DINESHWAR KUMAR, SON OF BALMIKI PASWAN, RESIDENT OF
VILLAGE SAHARI, P.S. BARH, DISTRICT PATNA.
2. JAFFER JAWED, SON OF MUZIBULLAH ALAM, RESIDENT OF
VILLAGE MASHURPUR, P.S. KHEJIRI, DISTRICT BALIA, (U.P.).
... ... PETITIONERS.
Versus
1. THE STATE OF BIHAR
2. ARUN KUMAR ROY, SON OF YOGENDRA ROY, RESIDENT OF VILLAGE
MANJHA KANDHWARIYA, P.S. PHULWARIA, DISTRICT GOPALGANJ.
... ... OPPOSITE PARTIES.
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For the Petitioners : Mr. S.K. Giri, Adv.
For the State : Mrs.Renu Kumari, A.P.P.
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P R E S E N T
THE HON'BLE MR. JUSTICE RAKESH KUMAR
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Rakesh Kumar,J. Two aforesaid petitioners, who are
police official, have approached this
Court, while invoking its inherent
jurisdiction under Section 482 of the Code
of Criminal Procedure with a prayer to
quash the order dated 25.2.1999 passed by
the Sub Divisional Judicial Magistrate,
Gopalganj in Complaint Case No.1878 of
1998, whereby the learned Magistrate took
cognizance of offence under Sections 147,
148, 149, 302 and 307 of the Indian Penal
Code and Section 27 of the Arms Act and
directed for summoning all the accused
persons including petitioners.
2. Short fact of the case is that
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on 29.10.1998, a complaint was filed by
opposite party no.2 in the court of Chief
Judicial Magistrate, Gopalganj vide
Complaint Case No.1878 of 1998 arraying the
petitioner no.2 as Accused No.1, one Home
Guard Jawan and 18 other Daroga and
Constables for an occurrence, which had
taken place on the same day i.e. 29.10.1998
at about 7.30 A.M.(morning). The complaint
was filed on allegation of committing
offence under Sections 147, 148, 149, 302
and 307 of the Indian Penal Code and 27 of
the Arms Act. It was disclosed in the
complaint petition that complainant was
cousin brother of one Madhusudan Singh, who
was not in a position, due to shock of
death of his son, to make complaint and as
such he had filed the complaint. It was
disclosed by the complainant that on the
date and time of the occurrence, all the
accused persons came to the house of
Madhusudan Singh and Accused No.1
(petitioner no.2) along with some
Constables entered into the Varandah and
other Constables and Daroga surrounded the
house. Thereafter, the petitioner no.2 told
that some persons had came there after
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committing crime. Whereupon Krishna Prasad
Singh @ Anshu, who was sitting in a room
told that no one had came there. In the
meanwhile, the Accused No.1(Petitioner
no.2) from his service revolver fired on
Anshu whereby he fell down and died. The
Accused No.1(Petitioner no.2) after coming
to know that the said boy was studying at
Allahabad and after completing examination
of B.A. final, he had come to his house,
the Accused No.1 fired on leg of one Home
Guard whereby the Home Guard Jawan received
injury. Subsequently, they carried the
Jawan and dead body to Hathua Hospital and
from there, they came to Gopalganj Police
Station, Via Mirganj Police Station and had
kept the dead body there on the pretext of
getting the postmortem done. It was also
alleged that one Yogendra Singh was
threatened and thereafter from him on blank
papers, signatures and identification was
taken. It was also alleged that Accused
No.1 (Petitioner no.2) had un-authorizedly
detained father of the deceased. After
filing the complaint, the complainant was
examined on S.A. and thereafter, in support
of the complaint, altogether 11 witnesses
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were examined. During the enquiry, certain
documents were also produced and
thereafter, the learned Magistrate, after
examining all the materials being fully
satisfied that prima facie case of brutal
murder of deceased Krishna Prasad Singh @
Anshu was made out against the petitioner
no.2, who was, at the relevant time,
Officer-in-Charge of Mirganj Police
Station, (2) Anmol Yadav, Officer-in-Charge
of Uchkagaon Police Station, (3) Dineshwar
Kumar, A.S.I. of Mirganj Police Station and
other accused whose name had not been
furnished by the complainant, who had
assisted the murder by showing police
powers acting without jurisdiction and as
such cognizance for the offence under
Sections 147, 148, 149 and 302 of the
Indian Penal Code was taken against the
accused persons including the petitioners
and direction was issued for issuance of
processes against the accused persons.
3. Aggrieved with the order of
cognizance, the aforesaid petitioners
approached this Court by filing the present
petition. It was filed on 10.11.1999 and on
17.2.2000, the case was admitted for
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hearing, notice was directed to be issued
to opposite party no.2, Lower Court Records
were called for and pending disposal of
this application, it was directed that
further proceeding in Complaint Case
No.1878 of 1998 shall remain stayed. The
order of stay is still continuing.
4. Shri S.K. Giri, learned counsel
for the petitioner, has raised several
grounds assailing the impugned order of
cognizance. It was submitted that it was
not a case of murder, but the police, while
searching a veteran criminal, who had just
committed the offence prior to the
occurrence in the present case, had gone to
the house of the father of the deceased and
while police party arrived near his house
about six accused persons, who were sitting
on Varandah immediately entered into the
house and locked the door from inside and
thereafter, from window and ventilator,
they started indiscriminate firing to
police party. In self defence, police also
fired. After the firing was stopped, the
police any how entered into the house.
However, most of the accused persons
managed to flee away and while police
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reached inside the house, dead body of son
of the informant was found in a room. Shri
Giri submits that for the said occurrence,
police had lodged an F.I.R. vide Phulwaria
P.S. Case No.54 of 1998 registered under
Sections 307, 353, 332, 333, 324, 216 A and
34 of the Indian Penal Code as well as
Section 27 of the Arms Act against five
accused persons. Learned counsel has
referred to Annexure-4 to the petition,
which is a typed copy of the F.I.R. of
Phulwaria P.S. Case No.54 of 1998. Learned
counsel for the petitioners has also
referred to Annexure-3 to the petition,
which is a typed copy of F.I.R. of Mirganj
P.S. Case No.188 of 1998 registered under
Sections 384, 386, 387 and 34 of the Indian
Penal Code against one Guddu Rai and other
four accused persons.
5. It was submitted by Shri Giri
that in the early morning, an occurrence
had taken place in which a dreaded
criminal, namely, Guddu Rai at about 6.30
A.M.(morning) on 29.10.1998 along with
other two accused persons armed with rifle
and gun had looted one Suraj Prasad and
fled away. On the information of Suraj
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Prasad, an F.I.R. as Mirganj P.S. Case
No.188 of 1998 was registered on 29.10.1998
at 7.15 A.M.(morning). After registering
the F.I.R., police started to search the
accused persons and they got information
that accused persons had gone towards the
village of deceased and while police
arrived there and encounter took place in
which son of Madhusudan Singh succumbed to
the fire arm injury and one Home Guard
Jawan received fire arm injury and as such
an F.I.R. vide Phulwaria P.S. Case No.54 of
1998 was registered. On the aforesaid
facts, it has been emphasized that it was
not a murder, but the police, while
discharging their official duty in self
defence, had fired and in an encounter
death had taken place. Learned counsel for
the petitioners submits that occurrence had
taken place, while petitioners being police
officers, were discharging their official
duty and as such the learned Magistrate has
committed serious error in passing the
order of cognizance even against the
petitioners in absence of any prosecution
sanction issued by the competent authority.
In absence of prosecution sanction, it was
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submitted that the order of cognizance is
liable to be set aside.
6. Shri S.K. Giri has further
argued that the learned Magistrate was well
knowing that for the same occurrence in
which son of Madhusudan Singh was killed
and a Jawan was also injured, police had
registered a case and investigating the
same and as such under the provisions
contained in Section 210 of the Code of
Criminal Procedure, the learned Magistrate
was required to stay the enquiry during the
investigation of the police case i.e.
Phulwaria P.S. Case No.54 of 1998. On
aforesaid grounds, it has been argued that
the order of cognizance is not sustainable
in the eye of law and same is liable to be
set aside.
7. Smt. Renu Kumari, learned
Additional Public Prosecutor appearing on
behalf of the State, has strongly opposed
the prayer of the petitioner. It was
submitted that it was a case of brutal
murder of a young student, who after
appearing in B.A. examination from
Allahabad University during vacation, had
came to his native place and in a brutal
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manner, he was killed by the accused
persons particularly petitioner no.2,
namely, Jaffer Jawed, who was at the
relevant time Officer-in-Charge of the
Mirganj Police Station. It was submitted
that at no stretch of imagination for such
an occurrence, it can be said that
petitioners' act was in relation to
discharge of official duty. Accordingly, it
was submitted that in the facts and
circumstances of the present case, there
was no requirement for obtaining sanction
for prosecuting the petitioners and as such
the learned Magistrate has rightly passed
the impugned order.
8. Besides hearing learned counsel
for the parties, I have also perused the
materials available on record. In this
case, by an order of this Court, Lower
Court Record was called for, which has been
received and are lying with the record of
the present case. I have minutely examined
the same.
9. Of course, defence taken by the
petitioner before this Court is not at all
required to be either entertained or
examined that too while hearing a petition
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under Section 482 of the Code of Criminal
Procedure in a case where order of
cognizance was only passed, but with a view
to come to just decision in the matter, I
was persuaded to examine the entire record
to ascertain as to whether the defence
taken by the petitioners has got any
substance or not. While examining the Lower
Court Record, I have come across with an
order passed by this Court in Cr. Misc.
No.5266 of 1999 dated 18.11.1999, whereby
the application filed by co-accused Anmol
Kumar (Anmol Yadav), who was Officer-in-
Charge of Uchkagaon Police Station against
the order of cognizance was dismissed.
10. In the present case, as per
complainant, occurrence had taken place at
about 7.30 A.M. (morning) on 29.10.1998.
Shri Giri, learned counsel for the
petitioners, had taken the plea that the
police party had arrived in search of a
dreaded criminal, namely, Guddu Rai, who
had committed an offence of loot on the
same day at about 6.30 A.M.(morning). A
typed copy of the F.I.R., which has been
brought on record vide Annexure-3 to the
petition i.e. Mirganj P.S. Case No.188 of
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1998 makes it clear that after the
occurrence in Mirganj P.s. Case No.188 of
1998, which had taken place at 6.30 A.M.
(morning), the informant of the said case
had submitted a written application before
the Officer-in-Chargte of Uchkagaon Police
Station. From page-28 of the brief, it is
evident that said written application of
informant of Mirganj P.S. Case No.188 of
1998 was forwarded by Officer-in-Charge of
Uchkagaon Police Station on the same day to
the Officer-in-Charge of Mirganj Police
Station since the place of occurrence was
within the jurisdiction of Mirganj Police
Station. Meaning thereby that the Officer-
in-Charge of the Mirganj Police Station
i.e. petitioner no.2 had received
information regarding the occurrence after
the written application of the informant
was forwarded to him by the Officer-in-
Charge of the Uchkagaon Police Station. On
perusal of the copy of the F.I.R. of
Phulwaria P.S. Case No.54 of 1998
(Annexure-4 to the petition), it appears
that the petitioner no.2, on his self
statement, had recorded the said F.I.R.
i.e. Phulwaria P.S. Case No.54 of 1998
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wherein he had disclosed the time of
occurrence at about 8.30 A.M. (morning) on
the same date. His self statement was
recorded at 9.30 A.M. (morning) at the door
of Madhusudan Rai of village Gosai Majha
Phulwaria, Gopalganj. In the said F.I.R.,
informant (petitioner no.2) has stated that
while they reached at about 8.30 A.M.
(morning) near the house of Madhusudan Rai,
father of the deceased, he noticed that 6
to 7 accused persons armed with rifle and
gun and bearing belt of bullet were sitting
at the door of Madhusudan Rai out of whom
the informant and other police official
identified dreaded criminal Guddu Rai,
Nanhe Rai and Ajay Rai. After noticing the
arrival of the police, they entered into
the northern room from the Varandah and
locked the door from inside and thereafter,
from window and ventilator, they started
indiscriminate firing. Thereafter, in self
defence, police also fired. In the said
occurrence, one Home Guard received serious
injury by fire arm. For about 20 minutes,
there were indiscriminate firing. In the
meanwhile, the police party through gallery
entered into the courtyard (Aangan). In the
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meanwhile, accused persons opened the door
of the room and started firing while
fleeing away. After the firing was stopped,
they entered into the house where they
found the dead body of one of the accused.
The informant has claimed that he had seen
the deceased at the time of occurrence. He
had identified him while he was firing from
the window. The F.I.R. further disclosed
that number of firing was made by all the
police officials. However, in the F.I.R.
itself, the informant has shown that no
fired cartridges, which was shown to be
fired from different police rifles, were
not recovered nor any seizure list was
prepared for such fired cartridges.
However, it was shown that number of fire
cartridges were found inside the room. The
quick action in the present case on the
basis of the occurrence i.e. occurrence of
Mirganj P.S. Case No.188 of 1998, which had
taken place at 6.30 A.M. (morning), for
which the informant of the said case had
submitted a written application before the
Uchkagaon Police Station creates serious
doubt in the mind of the court. Of course,
the court is not recording finding on this
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issue, but prima facie, it appears that
every thing was created subsequent to the
murder of the son of Madhusudan Rai. In
respect of Madhusudan Rai, from the record,
it appears that some information was
gathered that he was in the habit of
harbouring criminals, but in the present
case, facts remains that student of
Allahabad University, while he had come to
his native place during the pooja vacation
was done to death by the police official
particularly the petitioner no.2, which has
come during the enquiry of the complaint
case.
11. Another point for strengthening
the belief on the facts of the complaint
case is that the death of son of Madhusudan
Rai had taken place on 29.10.1998 in the
morning at 7.30 A.M. and on the same date,
the complaint was filed in the court of
Chief Judicial Magistrate, which is evident
from the Lower Court Record. The prompt
action taken by the complainant creates no
doubt on the genuineness of the allegation.
In this case, during enquiry, altogether 11
witnesses were examined which include
younger and minor sister of the deceased
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boy, who have also supported the
prosecution case. Besides this, on perusal
of the record, it transpires that on the
prayer made on behalf of the complainant,
postmortem report was also summoned and
copy of the same was brought on record,
which shows that death had occurred due to
the reason that the deceased had received
fire arm injury on his chest. Many other
materials were also brought on record
during the enquiry and the learned
Magistrate, by assigning a detailed reason,
has passed the impugned order of
cognizance. So far as application of
prosecution sanction is concerned, on the
facts and circumstances, I am of the
opinion that at the moment, it cannot be
considered that act alleged was squarely in
relation to discharge of official duty.
Moreover, whether an act was in relation to
discharge of official duty was there or not
can well be seen during the trial and not
at this stage. So far as application of
Section 197 of the Code of Criminal
Procedure is concerned, this protection has
been granted to an officer, who are
removable only by the State Government or
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by the Central Government. At the moment,
it cannot be conclusively said that both
the petitioners were removable by the State
Government. So far as application of
Section 210 of the Code of Criminal
Procedure is concerned, said plea was not
taken before the court below. Immediately
after the order of cognizance, the two
petitioners had rushed to the court and
also got an order of stay which continued
for more than ten years.
12. In view of the facts and
circumstances, I am of the opinion that the
learned Magistrate, while passing the
impugned order, has not committed any
error, rather this Court is of the opinion
that the learned Magistrate has passed a
very reasoned and sound order which
requires no interference by this Court.
13. Accordingly, the petition
stands rejected.
14. In view of rejection of this
petition, interim order of stay dated
17.2.2000 stands automatically vacated.
15. Office is directed to remit
back the Lower Court Record along with a
copy of this order. Since the matter had
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remained un-necessarily pending before this
court for quite a long time, it is expected
that the learned court below will proceed
with the case expeditiously so that the
case may come to its logical end without
any further delay.
( Rakesh Kumar,J.)
PATNA HIGH COURT
Dated 31st January,2011
N.A.F.R./N.H.