Patna High Court - Orders
Dilip Yadav & Ors vs State Of Bihar on 10 March, 2010
IN THE HIGH COURT OF JUDICATURE AT PATNA
Cr.Misc. No.45933 of 2007
1.DILIP YADAV son of Rajendra Yadav
2.Rajendra Yadav son of Kameshwar Yadav
3.Pappu Yadav son of Saket Yadav,
All residents of village-Naubatpur, P.S.-Khizar Sarai, Dist.-Gaya.
Versus
STATE OF BIHAR
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5. 10.3.2010. Heard Mr. Anil Kumar Roy, learned counsel for the petitioners and Dr. Maya Nand Jha, learned APP for the State.
I have also perused the report dated 5th January, 2008 sent by the Additional Sessions Judge, F.T.C.-I, Gaya.
The petitioner while invoking inherent jurisdiction of this court under section 482 of the Code of Criminal Procedure (Cr.P.C.) had initially challenged the order dated 19.2.2000 passed by learned Chief Judicial Magistrate, Gaya, whereby cognizance for the offences under sections 380, 307 and 302/34 of the Indian Penal Code and section 27 of the Arms Act was taken in Khizarsarai P.S. Case No.118 of 1999. Subsequently, the petitioner filed a supplementary affidavit on 12.12.2007. In paragraph-2 of the supplementary affidavit he made a prayer "that permission may be granted to the petitioners to make correction in first paragraph of main petition as well as prayer portion of the quashing application in place of order dated 19.2.2000 of cognizance order to order dated 22.9.2004 passed by F.T.C.-1, Gaya, in S.T. No. 626/04". The case was firstly taken up for hearing at the point of admission on 12.12.2007 by a Bench of this court. It is appropriate to quote the order dated 12.12.2007, which is as follows:-
"In this quashing application it has 2 been shown on behalf of the petitioners with reference to the order dated 19.2.2000 that cognizance of the offence has been taken u/ss 380, 307, 302/34 of the I.P.C. and section 27 of the Arms Act against the persons who have been charge sheeted, namely, Ganesh Yadav and B.D.O.Yadav @ Ramdeo Yadav, while investigation is pending against rest of the accused persons. It has been submitted that the petitioners, namely, Dilip Yadav, Rajendra Yadav and Pappu Yadav did not figure in the order taking cognizance of the offence but proceeding has been started against them without taking cognizance against them.
Let carbon copy of the case diary of S.T. No.557/ 2007 arising out of Khizarsarai P.S. Case No.118 of 1999 be called for from the court of F.T.C.-1, Gaya and also a report as to whether in respect of the petitioners cognizance of the offences have been taken, and put up this case after three weeks within top-ten cases.
In the meantime, during the period no coercive steps shall be taken against the petitioners.
Let the order be sent by fax at the cost of the petitioners."
Thereafter, by order dated 19.1.2009 a Bench of this court called for the record of Sessions Trial No.557 of 2007 from the court of learned presiding officer, F.T.C.-I, Gaya, so as to reach this court by 30.1.2009. In compliance of the court's order, record of Sessions Trial No.557 of 2007 has been received which is kept on the record of this case.
3
The petitioners in paragraph-1 of the petition had made a prayer to quash the order dated 19.2.2000 passed by learned Chief Judicial Magistrate, Gaya, whereby the learned court below has taken cognizance of the offences under sections 380, 307 and 302/34 of the Indian Penal Code and section 27 of the Arms Act. In this case one supplementary affidavit was filed on behalf of the petitioners, which was affidavited on 12.12.2007. The supplementary affidavit has been kept on the record.
The case was firstly taken up at the point of admission on 12.12.2007 and on that date this court while calling for carbon copy of the case diary also directed that in the meanwhile no coercive step shall be taken against the petitioners. I have already quoted the order dated 12.12.2007 hereinabove. On perusal of the order dated 12.12.2007 it is evident that this court was persuaded that by order dated 19.2.2000 the court had taken cognizance for the offences under sections 380, 307 and 302/34 of the Indian Penal Code and section 27 of the Arms Act against accused persons, namely, Ganesh Yadav and B.D.O.Yadav @ Ramdeo Yadav. It was specifically submitted that names of these petitioners were not mentioned in the order taking cognizance. It appears that after being persuaded that without cognizance proceedings were initiated against these petitioners by the court below, this court ordered not to take any coercive step against these petitioners.
The petition was again taken up for hearing at the point of admission on 19.1.2009. However, this court called for 4 records of Sessions Trial No.557 of 2007 from the court of learned Presiding Judge, F.T.C.-1, Gaya.
Short fact of the case is that on the basis of fardbeyan of one Rajendra Jamadar, a first information report vide Khizarsarai P.S. Case No.118 of 2009 was registered on 4.11.1999 for the offences under sections 147, 148, 149, 452, 323, 307, 380 and 302 of the Indian Penal Code and section 27 of the Arms Act. In the fardbeyan the informant had categorically stated that seven accused persons including these three petitioners entered the house of the informant in the night of 4.11.1999. On hearing some sound, the informant woke up and saw the accused persons including these petitioners. Thereafter, scuffle took place. Subsequently, in the occurrence firing was opened which hit the son of the informant. The informant also received fire arm injury. Thereafter, the accused persons snatched golden nose-pin from the wife of the informant and all the accused persons fled away. The informant disclosed that from the roof of his house he noticed that one another accused namely, Rajendra Yadav, besides seven accused persons, was standing near his door armed with a rifle. In the said occurrence son of the informant succumbed to his injuries. On the basis of first information report, police started investigation and first charge sheet was submitted by the police on 15.2.2000 against only one accused, which has been annexed as annexure-2.
In this case earlier a report was called for from the court of learned Additional Sessions Judge, Gaya, who by his letter dated 5th January, 2008 sent the report along with some 5 orders passed by the learned Chief Judicial Magistrate, Gaya. The report indicates that on 19.2.2000 charge sheet was submitted only against one accused person, namely, B.D.O.Yadav @ Ramdeo Yadav. However, at the time of hearing of the petition, it was submitted by the learned counsel for the petitioners that charge sheet was submitted on 19.2.2000 against two accused persons, namely, Ganesh Yadav and B.D.O. Yadav @ Ramdeo Yadav. The report further indicates that after submission of first charge sheet on 18.8.2003, police submitted supplementary charge sheet against four accused persons, namely, Rishi Yadav, Biran Yadav @ Bakaru Yadav, Ganesh Yadav and Bhut Yadav @ Dinesh Yadav. The police, while submitting supplementary charge sheet, as per the report, did not sent up three accused persons i.e. all the three petitioners for facing trial. However, learned Chief Judicial Magistrate, Gaya after perusing the case diary and finding sufficient materials took cognizance of the offence against all the accused persons including these petitioners. The order of cognizance against these petitioners and other accused persons was passed on 18.8.2003. The learned Additional Sessions Judge in its report dated 5th January, 2008 has made it clear that by order dated 18.8.2003, the learned Chief Judicial Magistrate, Gaya, has also taken cognizance against all these three accused persons, who preferred the present petition before this Court.
Surprisingly, in the supplementary affidavit which was filed on 12.12.2007, the petitioners again suppressed the fact regarding order of cognizance taken against these petitioners. In 6 the supplementary affidavit, the petitioners preferred to bring on record the order dated 22.9.2004 whereby processes under Sections 82 and 83 were ordered to be issued against accused B.D.O. Yadav @ Ramdeo Yadav, Dilip Yadav (petitioner no.1), Raj Bans Yadav and Pappu Yadav (petitioner no.3). It appears that the order of cognizance dated 18.8.2003 was purposely suppressed with a view to persuade the court to pass an order of stay in their favour on the ground that without order of cognizance even processes were issued against these three petitioners. It is also difficult to comprehend that when all the three petitioners were specifically named in the first information report how they were not sent up for trial by the police, but, in any event, the learned court below after perusing the materials on record has already taken cognizance of the offence against these petitioners also.
Prima facie, I am satisfied that the submissions made on behalf of the petitioners that without order of cognizance processes were issued against them appears to be incorrect and false. On this ground, the petition is liable to be rejected and the same stands rejected. It is necessary to direct the court below to proceed with the case against all the accused persons. Office is directed to immediately remit the lower court records, which were received pursuant to the order of this Court.
Rejection of this petition may not end the matter. In view of the fact that by way of suppression of fact, the petitioners succeeded in obtaining an interim order from this Court which continued for such a long time, it is necessary to direct for 7 conducting an investigation into the entire episode. This appears to be apparent commission of fraud in a court proceeding and if no action is taken against the concerned persons, it will amount to allowing to perpetuate the crime. In that view of the matter, I am of the view that this matter can well be investigated by institution of a regular case. In view of the fact that there is possibility of involvement of many persons in commission of the offence conspiring with each other, I feel that this matter can well be investigated by a specialized investigating agency. This is an appropriate case in which direction can be issued to the Central Bureau of Investigation to institute a case and investigate the same. The Superintendent of Police, Central Bureau of Investigation, Patna, is directed to institute a case and investigate the entire episode. The investigating agency is allowed to enquire/investigate even the role of local police, if any, in rendering undue and illegal favour to aforesaid three petitioners who were named in the first information report relating to serious offences.
Let a copy of this order be handed over to the Superintendent of Police, Central Bureau of Investigation, Patna, through Sri Bipin Kumar Sinha, Standing Counsel, Central Bureau of investigation, Patna High Court, Patna forthwith. Office is directed to hand over copy of the entire order sheet including the petition, supplementary affidavit, the report which was submitted by the learned Additional Sessions Judge, Gaya, and other connected copy of records to the Central Bureau of Investigation, 8 Patna, as and when approached by the investigating agency. The investigating agency may obtain copy of the entire order sheet from the court below, both from the court of Chief Judicial Magistrate, Gaya, and court of trial judge and also copy of the case dairy with supervision note, if any. If the investigating agency approaches the court below, the same may be provided to them without any delay.
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Md.S. ( Rakesh Kumar, J.)