CRIMINAL MISCELLANEOUS No.30840 OF 2002
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In the matter of an application under Section
482 of the Code of Criminal Procedure,1973.
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SANTLAL PASWAN SON OF DEHAL PASWAN, RESIDENT OF
VILLAGE BISHANPUR KAWA, POLICE STATION BALIGAON,
DISTRICT VAISHALI.
... ... PETITIONER.
Versus
THE STATE OF BIHAR ... OPPOSITE PARTY.
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For the Petitioner : M/S Arun Kumar, Adv.
Md.Hussamuddin Azad,Adv.
For the State : Mrs.Indu Bala Pandey,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. The sole petitioner, while invoking
inherent jurisdiction of this Court under Section
482 of the Code of Criminal Procedure, has prayed
for quashing of an order dated 22.3.1999 passed
by the Chief Judicial Magistrate, Vaishali in
Trial No.645 of 1999 arising out of Baligaon P.S.
Case No.14 of 1998. By the said order, the
learned Magistrate has taken cognizance of
offence under Sections 324, 326, 302/34 of the
Indian Penal Code.
2. Short fact of the case is that on the
basis of fardbeyan of one Ganaur Paswan, an
F.I.R. vide Baligaon P.S. Case No.14 of 1998 was
registered on 14.5.1998 for the offence under
Sections 341, 323, 326, 307/34 and 324 of the
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Indian Penal Code, in which subsequently Section
302 I.P.C. was added after the death of the
injured. The informant had disclosed in his
fardbeyan that this petitioner and other accused
persons were involved in a case in which kerosene
oil was sprinkled on one Ram Bilas Paswan and in
the said occurrence, thereafter, accused Surendra
Paswan put fire on the cloths and thereafter, he
received serious burn injuries. In the F.I.R.,
there was specific allegation against the
petitioner and other accused persons. On the
basis of fardbeyan, F.I.R. was registered against
the petitioner and others. However, subsequently,
the injured Ram Bilas Paswan died and thereafter
in the F.I.R., Section 302 I.P.C. was added vide
order dated 16.6.1998. After investigation,
police submitted charge sheet against accused
persons, however, the case against this
petitioner was found un-true. Subsequently,
supplementary charge sheet was submitted on
31.10.1998 against some of the accused persons.
Again the petitioner was not forwarded by the
police. On 22.3.1999, the learned Magistrate took
cognizance of offence under Sections 324, 326,
302 of the Indian Penal against six accused
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persons and also against the petitioner. After
the order of cognizance, the petitioner
approached this Court by filing the present
petition. On 12.11.2002, due to non prosecution,
the case was dismissed by this Court.
Subsequently, it was restored and finally the
case was admitted on 3.9.2004. While admitting,
this Court summoned the lower court records and
also directed that during the pendency of this
application, further proceeding pending in the
court of Chief Judicial Magistrate, Vaishali at
Hajipur in Tr. No.645 of 1999 shall remain stayed
so far this petitioner is concerned.
3. Shri Arun Kumar, learned counsel
appearing on behalf of the petitioner, while
challenging the order of cognizance, submits that
the order of cognizance is liable to be set aside
on number of grounds. Firstly it was submitted
that after investigation, police submitted charge
sheet against other accused persons. However,
this petitioner was exonerated by the police.
After submission of first charge sheet, the
learned Magistrate took cognizance of offence
only against one of the accused persons, namely,
Budhan Paswan by its order dated 29.8.1998. It
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was submitted that once the learned Magistrate,
after submission of charge sheet, had taken
cognizance of offence only against accused Budhan
Paswan, the learned Magistrate, at subsequent
stage, was not authorized to take cognizance of
the offence even against this petitioner. It was
submitted that subsequent order amounts to
reviewing earlier order, which is not permissible
in the eye of law. It was further submitted that
even during further investigation, nothing was
collected against this petitioner and as such in
supplementary charge sheet also, nothing was
indicated against this petitioner. The learned
Magistrate, after submission of supplementary
charge sheet without any new material, was not
authorized to take cognizance of the offence
against the petitioner. It was submitted that
neither any protest petition was filed by the
informant nor any new material was brought before
the court below and as such the learned
Magistrate had committed grave error while taking
cognizance even against the petitioner. It was
submitted that the learned Magistrate had passed
the order without application of mind and in a
mechanical manner, the learned Magistrate has
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taken cognizance even against this petitioner.
Learned counsel for the petitioner has
alternatively argued that even the accused
persons against whom charge sheet was submitted
and they were put on trial, most of accused
persons have already been acquitted. It was
submitted that accused Budhan Paswan, against
whom there was specific allegation of sprinkled
kerosene oil, was put on trial in Sessions Trial
No.262 of 1998 and on 27.9.2002, the learned
Additional Sessions Judge, F.T.C.III has
acquitted Budhan Paswan. Learned counsel for the
petitioner has referred to Annexure-4 to the
supplementary affidavit i.e judgment of acquittal
dated 27th September,2002 passed in Sessions
Trial No.262 of 1998. Learned counsel for the
petitioner has referred to paragraph-10 of the
said judgment and it was argued that even during
the trial of Budhan Paswan, it was found that the
informant of the case was not actual eye witness
and as such he was acquitted. Learned counsel has
also submitted that other two accused, namely,
Surendra Paswan and Bisheshwar Paswan were put on
trial vide Sessions Trial No.401 of 2003 and they
too were acquitted on 20.4.2004. It has further
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been submitted that other accused persons have
already been acquitted from the charges. It has
been submitted that keeping in view the fact that
since most of the accused persons, who were put
on trial, have already been acquitted, no purpose
would be served by directing the petitioner to
face trial in such situation. Accordingly, it has
been prayed that while exercising power under
Section 482 of the Code of Criminal Procedure,
this Court may interfere with the order of
cognizance and allow the present petition.
4. Smt. Indu Bala Pandey, learned
Additional Public Prosecutor appearing on behalf
of the State, has vehemently opposed the prayer
of the petitioner. In this case earlier, case
diary was called for and same is lying with the
record of present case. Smt. Pandey, while
referring to number of paragraphs of the case
diary, has argued that even the victim, who
subsequently died due to burn injury, had given
statement before the police and categorically
stated regarding involvement of the petitioner.
Besides the victim, other witnesses have also
supported the case of the prosecution. On the
aforesaid ground, it has been submitted that
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keeping in view the material on record, it is a
fit case where this Court, while rejecting the
present case, may direct the court below to
proceed with the case expeditiously.
5. Besides hearing learned counsel for
the parties, I have also perused the materials
available on record. So far as argument advanced
by learned counsel for the petitioner that once
learned Magistrate had taken cognizance on
submission of first charge sheet, by its order
dated 29.8.1998, he was not authorized to pass
the impugned order of cognizance is concerned,
the court is of the opinion that such submission
is required to be noticed only for its rejection.
On the submission of first charge sheet, it is
true that the learned Magistrate had taken
cognizance of offence only against one Budhan
Paswan. However, it does not indicate that while
taking cognizance, the learned Magistrate had
discharged the petitioner from the case. After
submission of supplementary charge sheet i.e.
after completion of final investigation, the
learned Magistrate had examined the material
available on record and thereafter, the learned
Magistrate has passed the impugned order. Keeping
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in view the materials available in the case diary
as has been pointed out by learned Additional
Public Prosecutor as well as specific averment
made in the F.I.R. disclosing commission of
serious offence against this petitioner, I am of
the opinion that while taking cognizance, the
learned Magistrate has committed no error. So far
as acquittal of other accused persons are
concerned that has got no relevance for the
purposes of deciding the present case. Other
accused persons were put on trial. The reason for
their acquittal cannot be looked into by this
Court, while hearing a petition against the order
of cognizance. From the contents of the F.I.R.
itself, it is evident that serious offence was
committed by the accused persons. The deceased
was caught by all the accused persons. The
accused persons sprinkled kerosene oil on the
clothes of the deceased and thereafter, he was
put on fire. In burning stage, he tried to save
his life and ran for some time and thereafter,
the informant and other villagers arrived there
and for some time, he could be saved. However,
subsequently, he succumbed to the injuries. In
such situation, I am of the view that this Court
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should refrain from interfering with such
prosecution.
6. Accordingly, I do not find any merit
in the present petition. The petition stands
rejected.
7. Keeping in view the fact that the
matter remained pending for a long time before
this Court, it is desirable to direct the
concerned court to proceed with the case
expeditiously so that the case may come to a
logical end as early as possible.
8. With above observation and direction,
the petition stands rejected.
9. In view of rejection of this petition, interim order of stay stands automatically vacated.
10. Let the Lower Court Record and case
diary be remitted to the court below fortwith.
( Rakesh Kumar,J.)
PATNA HIGH COURT
Dated 15.9.2010
N.A.F.R./N.H.