Patna High Court - Orders
Shivatama Yadav &Amp; Ors vs State Of Bihar on 5 April, 2011
IN THE HIGH COURT OF JUDICATURE AT PATNA
CR. APP (SJ) No.713 of 2006
SHIVATAMA YADAV & ORS
Versus
STATE OF BIHAR
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18. 05.04.2011. I have heard Sri D.K.Sinha, learned senior counsel appearing for the applicant, who was the informant of the case which was tried as Sessions Trial No.57 of 1999 by Additional Sessions Judge, Fast Track Court-Vth, Buxar has made a prayer through the present I.A. to cancel the courts order dated 28.01.2009 by which the appellant Shivatma Yadav was admitted to bail by this Court after hearing another I.A.No.2407 of 2008. The ground for seeking the cancellation of the order of bail passed by this Court is that on 2.10.2009, after being released from custody Shivatma Yadav, the appellant came by a motorcycle, which was not bearing any registration number plate, to the house of one Baidyanath Prasad who was a witness and who had deposed in the case, to threaten him to do away with his life as also those of his family members because, 2 on account of his evidence, the appellant Shivatma Yadav had been found guilty and sentenced. The application was addressed to S.D.M., Dumraon and it appears that the informant of the above noted case also complained to the District Magistrate, Buxar who sent the petition for enquiry to the Superintendent of Police, Buxar and on enquiry being conducted by the officer-in- charge of the concerned police station, the report was submitted that in fact the appellant Shivatma Yadav had conducted himself in the manner complained of. It appears that while making the report the police submitted an additional report before the S.D.M., Dumraon for initiating a proceedings under Section 107 Cr.P.C. and that proceeding was still under way.
It was also contended by Sri Sinha, learned senior counsel appearing
for the informant of the case that after receipt of the report from the office of the Superintendent of Police, Buxar the District Magistrate, Buxar was requesting the learned Advocate General to file a cancellation petition before this Court 3 for cancelling the order by which Shivatma Yadav was admitted to bail so that the same was cancelled and he was committed to custody. However, there was no petition file by the state and, ultimately, the informant was compelled to take up the matter himself by filing the present I.A. application.
Sri Rana Pratap Singh, learned senior counsel appearing for the informant has contended that it was a solitary incident which has been found true and that too appears without any specific overt-act being committed by the appellant. It was contended that the incident had occurred on 2.10.2009 but the I.A. was filed on 24.9.2010 in the office of this Court and as such the informant sat over the matter for about a year. In the meantime, the proceeding under Section 107 Cr.P.C. was initiated and notices were issued and the whole issue and allegations are subjudice on account of being the subject matter of an enquiry properly initiated under the appropriate provision of law. It was contended that when the 4 enquiry was yet to be brought to a logical conclusion, cancelling the order of bail it may tantamount to upholding the allegations and, thus, it will affect adversely the result of the enquiry under Section 116 Cr.P.C.
The grievance of the appellant was that the learned Advocate General in spite of being requested by the District Magistrate, Buxar was not taking any steps for filing I.A. before this Court. This court simply wants to point out that it is always the wisdom of the Advocate General or any government advocate to consider the facts which could have been placed before him for applying his mind and then to decide whether a case was properly made out so as to present facts before the court for adjudication. Mere recommendation by a District Magistrate or even a decision of the State Government may not be sufficient to influence the mind of an advocate to file an application for initiating a proceeding through any petition before any court. An Advocate General acts as per his own conscience, he 5 is never dictated by the recommendations of any officer of the state and if his wisdom is not convinced to initiate the proceeding, then he could very well be within his conscience not to do it.
This court finds reasons for the learned Advocate General or the office of the Advocate General not to take up the matter properly on the judicial side of this Court. The solitary incident was occurring on the second of October, 2009 it were mere allegations of hurling abuses and threatening words upon the family members of a witness, namely, Baidyanath Prasad by the appellant Shivatma Yadav who had, allegedly, arriving there by a motorcycle without any number plate. There is no allegation any where made through any statement even in the I.A. that the appellant was behaving similarly or in a worst fashion on subsequent occasions so as to repeating the same acts. The matter is being enquired into under Section 116 Cr.P.C and this should be outside propriety that this court, without awaiting for the conclusion of that 6 enquiry, direct the cancellation of the order which was passed by it on 28.1.2009.
In the result, the court finds no reason to interfere in its order so as to cancelling it and direct the committal of appellant Shivatma Yadav.
Petition is dismissed.
B.Kr. ( Dharnidhar Jha,J.)