CRIMINAL MISCELLANIOUS No.19607, 34657 &
49995, ALL OF 2006
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In the matter of applications under Section
482 of the Code of Criminal Procedure.
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1.BIJOY PRAKASH
2.JAI PRAKASH NARAYAN YADAV, –PETITIONERS
Versus
THE STATE OF BIHAR—————-OPP.PARTY
(Cr.Misc. no.19607/2006)
MUKESHWAR PRASAD——————PETITIONER
Versus
STATE OF BIHAR——————–OPP.PARTY
(Cr.Misc.no.34657/2006)
ARVIND KUMAR———————-PETITIONER
Versus
1.STATE OF BIHAR
2.VIJAY PRAKASH ——————OPP.PARTIES
(Cr.Misc. no. 49995/2006)
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For the Petitioners : M/s Rana Pratap Singh,
(In Cr.Misc.nos.19607 Chittaranjan Sinha,
& 34657 of 2006) & Sumant Singh, Anirbhan
For Opp.Party no.2 Kundra, Krishna Narayan
(In Cr.Misc.no.49995 Jha, & Sanjay Kr. Singh
Of 2006)
For the Petitioners : M/s Prasoon Sinha &
(In Cr.Misc.no.49995 Udai Shankar Singh
Of 2006)
For the State : Mr. Damodar Pd. Tiwari,
APP.
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P R E S E N T
THE HON’BLE MR. JUSTICE AKHILESH CHANDRA
2
Akhilesh Chandra, J. Heard learned counsels representing the
parties and learned Additional Public Prosecutor for the
State.
2. Since all the three cases are
interconnected, and at the time of orders on admission in
the cases wherein orders were passed, subsequently they
have already been ordered to be heard together with
earlier admitted cases. Accordingly, all the three cases
have been heard together and are being disposed, with
the consent of the parties, of by this common order
under Section 482 of the Code of Criminal Procedure.
3. The former two cases that is Cr.Misc.
no.19607 and 34657, both of 2006, have been preferred
by respective petitioners seeking quashing of order dated
02nd May, 2006 passed in G.R. Case no. 1308 of 2005;
Khaira P.S. Case no.187 of 2005, by the Subdivisional
Judicial Magistrate, Jamui, rejecting their prayer seeking
discharge under Section 239 of the Code of Criminal
Procedure.
4. Latter case, that is, Cr.Misc. no. 49995
of 2006 has been preferred seeking quashing of order
3
dated 18th April, 2006 passed by the learned
Subdivisional Judicial Magistrate, Jamui, in Complaint
Case no. 880C of 2005 taking cognizance against the
petitioner for the offence under Section 323 of the Code
of Criminal Procedure.
5. Admitted relevant facts is that one
Khaira P.S . Case no. 183 of 2005 under Sections 25
(1-a) (1-b), 26 and 35 of the Arms Act, 47(A) of Excise
Act, 353, 201 and 171 of the Indian Penal Code and
123/132 of the Representation of Peoples Act on 18th
October, 2005 against petitioner no.1 of Cr.Misc. no.
19607 of 2006 and others such as Ashok Ram and
Batohi Yadav besides three unknown. On a written
report of S.I. Binod Kumar, Incharge, Cheeta S.T.F.,
with the assertion that the informant along with 29
Commandos was on duty at District Control Room,
Jamui since 7.30 A.M. on 18th October, 2005 when
some complaint was received during Assembly Election
of 2005 as voters were being terrorized by orders of
superiors which proceeded for verification and
necessary actions, arrived near village Khaira, Booth
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no.137. He found large gathering and could see two
vehicles were coming from Garhior, signals were given
to stop. In first vehicle (Tavera-Chevarlet no. JH-25K
8851) Police found one person in civil dress but three
were in Police Uniform and in second vehicle (Bolero
no. BR-53 3046) two persons were sitting , one rifle was
also found kept in one vehicle which started fleeing
towards Khaira brick soling road but after the chase one
of the occupant in Civil dress could be over powered,
who disclosed his name as Vijoy Prakash Yadav, a
candidate of such election, and also disclosed that the
persons fleeing were his body guards.
6. The second vehicle was also stopped, on
interrogation from this could be disclosed that occupants
are Ashok Ram, an independent candidate in said
Assembly Election, another was Batohi Yadav, three
persons in Police Uniform succeeded in fleeing but the
person in civil dress could be caught. Details of wearing
of the persons apprehended is also there. One rifle was
recovered from beneath the seat besides one red colour
brief case containing Rs.6.68 lacs in cash and 12″ patti
5
with dynamo set 60 cartridges of 3006 bore and 50
bottles of rum was also recovered, seizure list was
prepared and thereafter the case was instituted.
7. Subsequently, the accused persons
apprehended in the above case appears released by the
Investigating Officer of the case giving rise to institution
of Khaira P.S. Case no.187 dated 20th October, 2005 for
the offences under Section 218, 225A(1) and 120 of the
Indian Penal Code. Subsequently, section 409 of the
Indian Penal Code was added on 24th October, 2005
against five persons including the three named, namely.
Khaira P.S. Case no. 183 of 2005 and Jai Prakash
Narayan Yadav, Central Minister, brother of Vijoy
Prakash and all these two brothers are petitioners in
Cr.Misc. no. 19607 and Investigating Officer of the
cases suspended Assistant Sub-Inspector of Police,
Mukeshwar Prasad, petitioner in Cr.Misc. no. 34657 of
2006, the subsequent case was instituted on the written
report of Sub-Inspector Shahid Akhter, stating therein
that the three accused persons were apprehended and
earlier Khaira P.S. Case no. 183 of 2005 was instituted
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against the three persons. Investigating Officer of the
case, Mukeshwar Prasad, in conspiracy with Central
State Minister, Jai Prakash Nrayan Yadav, released the
named apprehended accused persons under his pressure
irrespective of the case instituted for non-bailable
offences with the Investigating officer also. The matter
was enquired into by the Deputy Superintendent of
Police by the orders of Superintendent of Police through
Memo. no.1963 Gopniye dated 10th October, 2005. In it
revealed from his report through Memo.no.1101 dated
19th October, 2005 that under pressure of Central State
Minister in a conspiracy, the apprehended accused
persons were released on bail but no such paper was
produced except plain paper under the signatures of
alleged bailers. Accordingly, the case was instituted.
8. It is also undisputed that in both the
cases, that is, Khaira P.S. Case no. 183 and 187, both of
2005, the Police, after investigation submitted charge
sheet against the accused persons and cognizance was
taken by the courts for the offences, the case was
instituted and found true after investigation by the
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Police.
9. It is also admitted position that
petitioner no.1 of earliest case had preferred Cr.Misc.
no.25557 of 2006 on 26th June, 2006 seeking quashing
of order dated 8th June, 2006 passed in Khaira P.S. Case
no. 183 of 2005 by the Subdivisional Judicial
Magistrate, Jamui, refusing his prayer under Section 239
of the Code of Criminal Procedure seeking discharge
and order under challenge was quashed by the order
dated 20th May, 2007 with a direction to court below to
pass speaking and reasoned order after hearing both
sides in accordance with law. It would be out of place
mention that petitioner no.2 of said case Jai Prakash
Narayan Yadav had also filed Cr.Misc. no. 14149 of
2006 on 3rd April, 2006 seeking quashing of order dated
23rd January, 2006 passed in Khaira P.S. Case no. 187 of
2005 taking cognizance for the offences under Sections
218, 225A and 120B and 409 of the Indian Penal Code
but the same has recently been dismissed as withdrawn
on 4th August, 2010.
10. Meanwhile, Bijoy Prakash Yadav, the
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named accused in Khaira P.S. Case no.183 and 187,
both of 2005, filed Compliant Case no.880 of 2005, on
20th October, 2005 in the Court of Chief Judicial
Magistrate, Jamui for the offences under Section 307,
323, 341, 394, 384, 504 /34 and 120 B of the Indian
Penal Code against Sri Arvind Kumar, Superintendent
of Police, Jamui besides 25-30 unknown armed
members of Special Task Force alleging therein that on
18th October, 2005 at about 5.00 P.M. after polling of
the day was over and the complainant, a candidate for
Assembly seat, representing Rashtriya Janta Dal,
reached at campus of Forest Depatment Khaira, he
found the A.S.P. sitting in the campus. The complainant
went to meet him and complained of booth capturing by
the candidate representing Janta Dal (U). He asked
about his identity. When it was disclosed and I-Card
was shown, as alleged, the S.P. started abusing, kept the
I-card and search of vehicle was conducted from were
licensed rifle was seized inspite of protest and when on
demand the licence was shown it was also kept and
thereafter at the time at the dictates of S.P., members of
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State Task Force assaulted the complainant by butt of
rifles and even the S.P. himself gave him some lathi
blow besides one blow on private part by feet. Intention
of Police was to encounter the complainant in collusion
with the rival candidate. It is further stated that one
brief case was called from somewhere and at the pistol
point the complainant was paraded carrying rifle and
attaché from Forest Department to the Police Station
where photograph keeping attaché on his hand carrying
rifle was taken. It is also alleged that intention of the
Superintendent of Police was to kill the complainant
near Forest Department but due to arrival of Media
personnel the game could not succeed. Subsequently,
belonging of the complainant, ornament, wrist watch,
rifle etc, worth rupees 1.5 lacs was snatched. It is again
stated that when vehicle of one independent candidate
Ashok Rai, Advocate, arrived near the Forest
Department, his vehicle too was intercepted and the
candidate was assaulted and publicly made naked. In
the assault, one finger of right palm of Ashok Rai has
also been broken. In said vehicle, wine and one whiper
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said to be detonator was also kept. In this way the
conspiracy against the complainant was organized just to
falsely implicate. By force his signatures on plain
papers were also obtain. Inspite of the information
given to the Officer in charge, no treatment was
provided nor case was instituted against the assailants
who kept the complainant and witnesses under wrongful
confinement for several hours. However, after
verification of rifle the complainant and the witnesses
were released at about 11.30 P.M. He was in great pain
and he remained under treatment so no cause was
instituted on 19th October, 2005 and the complaint was
filed on 20th October, 2005 wherein statement of the
complainant on solemn affirmation could be recorded on
18th November, 2005 and thereafter some witnesses
were also examined. But the court finding the case
under Section 323 of the Indian Penal Code took
cognizance for the said offence giving rise to Cr.Misc.
no. 49995 of 2006.
11. The learned counsel representing the
petitioners in earlier two cases vehemently submitted
11
that neither there was any material against them nor
there was valid sanction for prosecution against the
Investigating Officer of the case but the Court below by
the non-speaking order refused to discharge them. Even
case laws cited have also not been mentioned. It is also
contended that there is no evidence at all showing
presence of Jaiprakash Narayan Yadav, the Central State
Minister and the petitioner Mukeshwar Prasad,
Investigating Officer was well justified in releasing the
apprehended accused persons in Khaira P.S. Case no.
183 of 2005 finding the offences bailable. Learned
counsel further placed reliance upon the decision of
Apex Court in the case of State of Karnataka V.
Muniswamy; (1977) 2 S.C.C. 699, and in the case of
Lalu Prasad alias Lalu Prasad Yadav V. State of
Bihar through CBI (AHD) Patna, (2007) 1 SCC 49.
On the other hand, learned Additional Public Prosecutor
by placing reliance upon decision of Apex Court in the
case of State of Delhi V. Gyan Devi; 2001(1) PLJR
page 42 (SC), and referring paragraphs 46, 124, 342,
388 and 412 to 414 of the case diary submitted that there
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was sufficient material against all the accused persons to
proceed for and rightly the court below turned down
their prayer made under Section 239 of the Code of
Criminal Procedure. At the same time, the learned
Additional Public Prosecutor refused to accept that the
impugned order as non-speaking, which order, runs as
such:
“Today is the date fixed for order.
There are six petition filed on behalf of
accused persons, namely, Jai Prakash Narain
Yadav, Vijoy Prakash, Triveni Yadav,
Ramdeo Yadav, Mukeshwar Prasad, Ashok
Ram, Batohi Yadav, Md. Illiyas Hussain @
Md. Illiyas Khan, Syed Saukat Ali and Nehal
Fakruddin @ Neela, who prayed to discharge
them from this case u/s 239 Cr.P.C., as no
material is on record against them. Heard
the learned counsels on behalf of petitioners
as well as learned A.P.O. on behalf of the
State.
Learned counsel for petitioners has
submitted that neither any material on record
nor any whisper about the alleged occurrence
against the accused petitioners and so, they
may be discharged from this case.
Learned A.P.O. has vehemently opposed
the prayer and submitted that there is
sufficient materials on record against the
accused petitioners that a prima facie case is
made out against the accused petitioners.
I also perused the case record, case
diary, materials available on record as well as
ruling filed on behalf of petitioners. In this
case, the learned C.J.M. has taken cognizance
against the said petitioners u/ss 218, 225(A),
120B and 409 I.P.C. I find sufficient materials
13against the accused petitioners to face trial in
this case. Under the facts and circumstances
of the case and the materials available on
record, I find no merit in the petitions filed on
behalf of accused petitioners u/s 239 Cr.P.C.
and accordingly, the same stand rejected.”
12. As it appears from the order under
challenge, reproduced above, the trial court though has
said that he has gone through the case diary and the
rulings cited by the petitioners but at the same time he
has not taken any care to even refer the decisions what
to speak of their applications. Similarly, the trial court
failed to refer even the relevant paragraph of the case
diary what to speak of stating gist of the materials
contained therein compelling him to proceed with the
trial and frame charges against the accused persons.
13. No doubt, at the time of framing of
charge or proceeding with the case normally any
detailed order is not required.
14. But once the accused persons, in
exercise of their right, seek discharge or assert that there
is no material against them, it is the duty of the trial
court to pass speaking order assigning at least, in short,
the reasons and the materials contained in the case diary
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so that one could appreciate that order, whatever is
has been passed by application of judicial mind.
15. It also appears from the subsequent
order of same day, that is, 02nd May,. 2006, that after
passing of the impugned order all the ten accused
persons separately, by filing petitions, sought one
month’s time from the court enabling them to move to
the superior Court. There was objection and, ultimately,
16th May, 2006 was the date fixed to bring stay order or
physical presence for framing of the charge. Some of
the accused persons, who were in custody, were ordered
to be produced on the date fixed.
16. It is undisputed that till the date fixed,
that is, 16th May, 2006, there was no stay order from this
Court in either of the cases. As it appears from order
dated 09th August, 2006 passed in Cr.Misc. no. 19607 of
2006 that, for the first time, further proceeding of the
court below was ordered to be stayed vide order dated
21st July, 2006 passed in Cr.Misc. no. 14149 of 2006.
17. None of the side could be able to
intimate this Court as to what happened on 16th May,
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2006 or thereafter whether charges were framed /
explained and trial commenced or the order remained
ineffective.
18. The learned counsel for the petitioner
in Cr.Misc. no. 49995 of 2006 vehemently submitted
that the complaint case has been filed by Bijoy Prakash
Yadav only on frivolous grounds just to put pressure
upon the Police and create an undue defence in Khaira
P.S. Case no. 183 and 187, both of 2005, inspite of
knowing that such cases have already been instituted
against the complainant opposite party no.2, there is no
whisper of such institution of the case though distorted
facts relating to such cases appears mentioned in the
complaint petition. The learned counsel by placing
reliance upon the case of State of Haryana V. Bhajan
Lal ; A.I.R. 1992 S.C. 604, submitted that since
complaint case has been filed just in personal
vengeance, so the impugned order as of complaint
deserve to be quashed. Learned counsel for opposite
party no.2, who representing him in Cr.Misc. no. 19607
of 2006 submitted that it is the re-production of work
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happened on the day and how the Police specially the
Superintendent of Police behaved with a candidate
fighting for Assembly election. Materials therein have
been supported by the complainant and the witnesses in
the statement and they need not be reproduced.
Learned Additional Public Prosecutor also supported the
impugned order.
19. From the plain reading of the
complaint petition finding case at Annexure-1 and
statement of the complainant on solemn affirmation, it
is evident that the complainant has not mentioned even
a word about institution of Khaira P.S. Case no. 183 of
2005 against him and his witnesses cited in the
complaint petition, knowing fully well that he and his
witnesses have been released by Police in aforesaid.
The complainant may or may not have knowledge of
institution of Khaira P.S. Case no.187 of 2005 relating
to his and other named accused as alleged unauthorized
release, by the person having no authority. But, almost
what has been alleged against the complainant in written
report of Khaira P.S. Case no. 183 of 2005 wherein the
17
complainant and his witnesses were detained appears
mentioned in the complaint but undisputedly there is no
reference of its investigation against them. One may
assume that in the complaint petition institution of
Khaira P.S. Case no.183 of 2005, purposely could not
be mentioned, only to deprive the Court from, deriving
truth on putting some questions to the complainant or
his witnesses or considering other options as prescribed
under Section 156(3) and 210 of the Code of Criminal
Procedure relating to possible institution of cases upon
similar and same facts with the police.
20. Such act of the complainant in view of
the admitted institution of the cases against him brings
the complaint in the category of the complaint
containing allegations to satisfy personal vengeance etc.
and concealing the truth consequently needs
interference of this Court.
21. In view of the facts and circumstances,
discussed above, finding, the order under challenge in
earlier two criminal cases, i.e., the order dated 02nd
May, 2006 in Khaira P.S.Case no. 187 of 2005, a non-
18
speaking order needs a fresh order by the Court below,
but only in the event of charges against the accused
persons are neither framed / explained nor the trial
commenced so far the impugned order dated 02nd May,
2006 in latter case, i.e., Cr.Misc. no. 49995 of 2006
passed in Complaint Case no. 880C of 2005 and the
Complaint Petition, both are quashed. Accordingly, all
the three cases stand disposed of.
(Akhilesh Chandra, J.)
Patna High Court,
The 18 th August, 2010,
AAhmad/ (NAFR).