Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.4027 of 2010 ====================================================== 1. Prem Raj Chauhan S/O Sri Naresh Prasad, At Present Officer Incharge Of Darbhanga Sadar Police Station R/O Vill.- Chauhan Tola, Khuskibagh, P.S.- Sadar Purnea, Distt.- Purnea .... .... Petitioner/s Versus 1. The State Of Bihar 2. Ram Prasad Ram S/O Thakkan Ram R/O Vill.- Jagatpur, P.S.- Phulparas, Distt.- Madhubani .... .... Opposite Party/s ====================================================== Appearance : For the Petitioner/s : Mr.Ajay Thakur, Adv. Mr. Amit Kumar, Adv. For the Opposite Party/s No.2:Mr. Hriday Narayan Pandit For the State: Mr. S.M. Rahman, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI CAV ORDER 5 27-06-2012 Petitioner has challenged order dated 04.06.2009 passed by ACJM, Jhanjharpur in Complaint Case No.69/2007 whereby and whereunder the learned lower court took cognizance for an offence punishable under [STATUTE] as well as summoning the petitioner including others along with order dated 02.01.2010 passed by learned Additional District and Sessions Judge, 2nd, Madhubani dismissing the Cr. Revision No. 396/09 filed against aforesaid order dated 04.06.2009. 2. Ram Prasad Ram, O.P. No.2, filed complaint petition no. 69/07 putting the date of occurrence from 03.11.2006 to 04.11.2006 against the petitioner and two others disclosing 2 therein that on account of misappropriation of Government fund, as per order of the present Mukhiya Phulparas P.S. Case No.208/2006 was instituted against Dinesh Ram and in the aforesaid background there was ruckus on 03.11.2006 at 6:00 A.M. followed with scuffle amongst two groups wherein brother of complainant sustained injury resulting institution of Phulparas P.S. Case No. 210/2006. 3. The O/C, Phulparas got complainant, his brother, Sukhdeo Ram, Madan Ram, Diwan Ram, Ranjan Singh, Vidyanand Singh, Suresh Singh and Sitaram Singh apprehended and admitted to Referral Hospital, Phulparas. Doctor had referred, Sukhdeo, Diwan, Madan, Ranjan and Vidyanand to DMCH under the influence of accused persons on account of which they all were brought to police station and from there Madan, Ranjan and Vidyanand were referred to PMCH while Sukhdeo Ram was detained at P.S. Inspite of insistence of complainant, the O/C did not accede to his release. Complainant returned back to his house. On 04.11.2006 at about 1:00 P.M. a rumour has floated in the village regarding death of Sukhdeo Ram in the Hajat whereupon complainant had gone to P.S. and found his brother dead lying outside the Hajat. On query the O/C abused him. 4. The learned ACJM proceeded with an enquiry under 3 Section 202 of the Cr.P.C. wherein complainant was examined on S.A. along with other witnesses followed with taking of cognizance by the order impugned and that happens to be cause for filing instant petition. 5. It has been submitted on behalf of the petitioner that petitioner happens to be a Government servant being Officer Incharge of Phulparas P.S. and from the narration of the complaint petition, it is evident that whatever allegation had been attributed that was within the coverage of in due discharge of the duty. Hence, it was incumbent upon learned lower court to insist for sanction in accordance with Section 197 of the Cr.P.C. before taking of cognizance. As such, the order of the cognizance happens to be bad. It has further been submitted that there happens to be inconsistency amongst the statement of the witnesses whosoever been examined during course of enquiry apart from the fact that none of the witnesses including the complainant himself happen to be an eyewitness to occurrence. Therefore, on merit of the case also, the order impugned is not justified. 6. Then submitted that the instant compliant cannot proceed because of the fact that for the same cause Phulparas P.S. Case no. 210/2006 had already been instituted and the matter was being investigated upon. Sukhdeo Ram, deceased was one of 4 injured of that very case and after whose death [STATUTE] was added. Apart from this, it has further been submitted that learned lower court before proceeding with complaint case no.69/07 should have adopted the procedure prescribed under Section 210 Cr.P.C. asking for report from the P.S. concerned when it was already divulged in the compliant petition regarding presence of Phulparas P.S. Case No.210/2006 for the same cause. It has further been submitted that during course of investigation of Phulparas P.S. Case No. 210/2006, the son and wife of the deceased was examined under Section 161 as well as 164 of the Cr.P.C. whereunder they have erased the allegation whatever been leveled by the complainant who happens to be step brother of deceased, Sukhdeo Ram. It has further been submitted that there happens to be inordinate delay in launching of the complaint and this is sufficient to infer as a malicious prosecution which has been filed with a purpose to implicate the petitioner along with other co-accused to satisfy personal grudge and vendetta in the background of dirty village politics. So, submitted that in the aforesaid background, the order impugned as well as the order passed by learned lower court happens to be bad in law as well as on facts and is fit to be set aside. 7. On the other hand, learned lawyer for O.P. No.2 by 5 filing counter affidavit controverted each and every aspect so raised on behalf of the petitioner. It has further been submitted that from own annexure of the petitioner the nefarious activities adopted by the petitioner resulting death of Sukhdeo Ram is visible. Then submitted that for the purpose of taking of cognizance, only prima facie material has to be seen which from the statement of witnesses including S.A. of the O.P. No.2 being fully supported with. Then submitted that the other grounds whatever been argued on behalf of the pe

Applicable IPC Section: 302

Statute Text:
Section 302 of the Indian Penal Code. Murder. Whoever commits murder shall be punished with death, or imprisonment for life, and shall also be liable to fine.