Patna High Court - Orders
Devesh Kumar vs The State Of Bihar on 31 August, 2023
Author: Satyavrat Verma
Bench: Satyavrat Verma
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.55146 of 2023
Arising Out of PS. Case No.-402 Year-2022 Thana- PATLIPUTRA District- Patna
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DEVESH KUMAR S/O MAHESH KUMAR KARJI R/O VILL- PUJA
DEVPAR, PS- PUSA, DIST- SAMASTIPUR
... ... Petitioner/s
Versus
1. The State of Bihar
2. UTTAM KUMAR JHA SON OF DINESH JHA R/O VILL- DOBHI, PS-
DOBHI, DIST- GAYA, the then ASI Patliputra Police Station, Patna
... ... Opposite Party/s
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Appearance :
For the Petitioner/s : Mr. Ansul, Advocate
Mr. Anuj Kumar, Advocate
For the Opposite Party/s : Mr. Shailendra Kumar, A.P.P.
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CORAM: HONOURABLE MR. JUSTICE SATYAVRAT VERMA
ORAL ORDER
2 31-08-2023Heard learned counsel for the petitioner and learned APP for the State.
2. The present application has been filed seeking quashing of the FIR and the entire subsequent proceedings of Patliputra P.S. Case No. 402 of 2022 dated 07.07.2022 instituted for the offences under Section 279 of the Indian Penal Code read with Section 37 of the Bihar Prohibition and Excise Act and Section 185 of the Motor Vehicles Act.
3. Learned counsel for the petitioner submits that the informant instituted an FIR alleging that while he was on patrolling duty on 07.07.2022 at 01:15 a.m. he received an information that a Scorpio vehicle on the northern lane of Atal Path had met with an accident, upon receiving the information, Patna High Court CR. MISC. No.55146 of 2023(2) dt.31-08-2023 2/11 he reached the place of occurrence and found a Scorpio vehicle bearing registration no. BR1AE 5100 in damaged condition and found a person sitting on the driver seat. It is further alleged that on enquiry the person disclosed his name as Sanjay Chaudhary, thereafter the vehicle along with Sanjay Chaudhary were taken to the police station and on test from breath analyzer machine, it was found that Sanjay Chaudhary had consumed liquor. It is next alleged that, in the meantime, another person came who introduced himself as the petitioner an acquaintance of Sanjay Chaudhary. It is further alleged that it appeared that even petitioner had also consumed alcohol and, despite repeated request, he did not get ready for breath analyzer test and thereafter he was taken to the PMCH and his blood and urine sample were taken and thereafter he was released on personal bond and it was recorded in the FIR that after receipt of blood and urine sample of the petitioner further proceeding would be undertaken against him.
4. Learned counsel for the petitioner submits that from bare perusal of the allegation as alleged in the FIR, it would manifest that the informant alleges that he received an information that a Scorpio vehicle had met with an accident at Atal Path based on which he reached the place of occurrence Patna High Court CR. MISC. No.55146 of 2023(2) dt.31-08-2023 3/11 where he saw the vehicle in which one person was sitting who disclosed his name as Sanjay Chaudhary.
5. It is further submitted that what is not disputed rather stands admitted is that petitioner was not present at the place of occurrence nor he was present in the car rather what is alleged against him is that on coming to know that Sanjay Chaudhary has been brought to the police station, the petitioner also appeared at the police station where it is alleged that it was assumed that he was also drunk and he refused his breath analyzer test.
6. Learned counsel for the petitioner submits that it absolutely does not stand to reason that as to why the petitioner would have come to the police station in a drunken state being aware that liquor is prohibited in the State of Bihar and if the petitioner would have been drunk then definitely he would have created an evidence against himself and thus would have been implicated. It is, thus, submitted that no prudent person would create an evidence against himself and, hence, would get implicated.
7. Learned counsel for the petitioner submits that the dispute, in the present case, is purely political for which specific pleadings have been made in this application. It is further Patna High Court CR. MISC. No.55146 of 2023(2) dt.31-08-2023 4/11 submitted that petitioner is associated with the B.J.P. and presently the alliance is not working, as such, he has been made a scapegoat in the present case.
8. It is next submitted that petitioner is not a criminal rather prior to joining politics he was a Principal correspondent in Indian Express and thereafter joined Economic Times as Assistant Political Editor and was the Senior Editor with India Today in 2011-2012 and was also Political Editor of Mail Today and thereafter was also an Editorial Consultant of NDTV from 2013-2014 and even had his educational qualification from the prestigious institutions. It is submitted that petitioner passed his 10th examination from St. Michael, Patna thereafter he graduated form St. Xavier College, Ranchi and thereafter did his MA and M. Phil. in Sociology from Jawahar Lal Nehru University.
9. Learned counsel for the petitioner submits that from the allegation as alleged in the FIR, it would manifest that even Section 53 Cr.P.C. was breached as it incorporates examination of accused by the Medical Practitioner at the request of the police officer. Section 53 Cr.P.C. reads as follows:-
"(1) When a person is arrested on a charge of committing an offence of such a nature and alleged to have been committed under such circumstances that there are reasonable Patna High Court CR. MISC. No.55146 of 2023(2) dt.31-08-2023 5/11 grounds for believing that an examination of his person will afford evidence as to the commission of an offence, it shall be lawful for a registered medical practitioner, acting at the request of a police officer not below the rank of sub-inspector, and for any person acting in good faith in his aid and under his direction, to make such an examination of the person arrested as is reasonably necessary in order to ascertain the facts which may afford such evidence, and to use such force as is reasonably necessary for that purpose. (2) Whenever the person of a female is to be examined under this section, the examination shall be made only by, or under the supervision of, a female registered medical practitioner.
1[Explanation.--In this section and Sections 53A and 54,--
(a) "examination" shall include the examination of blood, blood stains, semen, swabs in case of sexual offences, sputum and sweat, hair samples and finger nail clippings by the use of modern and scientific techniques including DNA profiling and such other tests which the registered medical practitioner thinks necessary in a particular case; (b) "registered medical practitioner" means a medical practitioner who possesses any medical qualification as defined in clause (h) of Section 2 of the Indian Medical Council Act, 1956 (102 of 1956) and whose name has been entered in a State Medical Register.]"
10. Learned counsel for the petitioner, thus, submits Patna High Court CR. MISC. No.55146 of 2023(2) dt.31-08-2023 6/11 that from perusal of Section 53 Cr.P.C., it would manifest that the same incorporates that if a person is arrested on a charge of committing an offence of such a nature and alleged to have been committed under such circumstances that there are reasonable grounds for believing that an examination of his person will afford evidence as to the commission of an offence, it shall be lawful for a registered medical practitioner, acting at the request of a police officer not below the rank of sub-inspector, and for any person acting in good faith in his aid and under his direction, to make such an examination of the person arrested as is reasonably necessary in order to ascertain the facts which may afford such evidence, and to use such force as is reasonably necessary for that purpose.
11. It is, thus, submitted that the prerequisite for resorting to Section 53 Cr.P.C. is that the accused must be arrested but in the present case from bare perusal of the allegation as alleged in the FIR, it would manifest that petitioner was never arrested rather he was subjected to medical test without being arrested thus breaching the provision of Section 53 Cr.P.C.
12. Learned counsel next relies on Section 75 of the Bihar Prohibition and Excise Act, 2016 (hereinafter referred to Patna High Court CR. MISC. No.55146 of 2023(2) dt.31-08-2023 7/11 as the 'Act') to submit that no doubt Section 75 of the Act incorporates power to conduct breath analysis test and medical test which reads as under:-
"75. Power to conduct breath analysis tests and medical tests.-
(1) Any of the Officers mentioned in Section-
73 may ask any person to undergo breath analysis tests and/or such medical tests as he may deem fit.
(2) The person so asked, is duty bound to submit himself to such medical tests or breath analysis tests. Should he fails to do so, it shall be presumed that he has committed an offence under Section 37 of the Act and shall be prosecuted accordingly.
(3) The reports of such tests shall be admissible as evidences under the Indian Evidence Act, 1872."
13. It is submitted that the power as given to the police officer under Section 75 of the Act is broad and the officer under Section 73 of the Act can ask any person to undergo breath analysis test and on such medical test as he may deem fit.
14. The crux of the submission is that as per Section 75 of the Act arrest of an accused is not mandatory before subjecting him to any kind of test if ordered by an officer under Section 73 of the Act.
Patna High Court CR. MISC. No.55146 of 2023(2) dt.31-08-2023 8/11
15. Learned counsel for the petitioner further submits that Cr.P.C. is in the concurrent list and Bihar Prohibition and Excise Act, 2016 is a State list subject and if there is any conflict the subject incorporated in the concurrent list shall prevail.
16. Learned counsel for the petitioner next submits that no doubt it is alleged that the blood sample along with urine of the petitioner was taken at P.M.C.H. but then from perusal of the Act and the Rules, it would manifest that no provision has been made which even remotely suggests that how the samples are to be preserved for the purposes of testing, sampling and sending it to the FSL and identification.
17. Learned counsel for the petitioner also submits that no doubt these submissions are legal but then issue is of quashing of an FIR and thus relies on the celebrated judgment of the Hon'ble Supreme Court in the case of State of Haryana and Ors. vs Bhajan Lal and Ors. reported in AIR 1992 SC 604 wherein the Hon'ble Supreme Court laid seven principles which should be taken into account while exercising power under Section 482 Cr.P.C. and had also held that inherent power under Section 482 Cr.P.C. could be exercised either to prevent abuse of the process of the law or otherwise to secure the ends of justice.
18. Learned counsel thereafter relies on the guidelines Patna High Court CR. MISC. No.55146 of 2023(2) dt.31-08-2023 9/11 as enshrined in the aforesaid order of the Hon'ble Supreme Court wherein it has been recorded:-
"(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(3) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
Patna High Court CR. MISC. No.55146 of 2023(2) dt.31-08-2023 10/11 (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
19. Learned counsel for the petitioner relies on the guidelines nos. 2 and 7 and submits, at the cost of repetition, that no prudent person would indulge in an act and, thus, create evidence against himself and, hence, would get implicated i.e. to submit that the allegations, as alleged in the FIR, are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused and at the same time the allegations are manifestly attended with mala fide and have been instituted with an ulterior motive for wreaking vengeance on the accused with a view of spite him due to private and personal grudge. In the present case, it is submitted that the Patna High Court CR. MISC. No.55146 of 2023(2) dt.31-08-2023 11/11 dispute is completely political.
20. Mr. Chandra Bhushan Prasad, learned A.P.P. is directed to file counter affidavit. The learned A.P.P. submits that from perusal of the FIR, it appears that petitioner was released on personal bond, thus it is presumed that petitioner was arrested and thereafter released on personal bond. The learned counsel for the petitioner disputes the contention and submits that had the petitioner been arrested then he would have been released in terms of the Excise Act, 2016, which does not contemplate release of an accused on personal bond, but in terms of Section 37 of the Excise Act.
21. Put up this case on 31.10.2023.
22. In the meantime, the proceedings, in the learned trial court arising out of Patliputra P.S. Case No. 402 of 2022, shall remain stayed.
(Satyavrat Verma, J) Kundan/-
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