IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.6477 of 2010 DURGA PRASAD GUPTA @ DURGA KHATIK Versus STATE OF BIHAR ----------- 3/ 28.1.2011 Heard learned counsel for the parties. Opposite party no. 2 has appeared in pursuance to notice to him in the light of order dated 7.10.2010. The petitioner seeks the quashing of the order of summoning passed on 5.1.2010 by the C.J.M., Nawada by which the petitioner was summoned to stand his trial under section 384 of the IPC. The facts of the case are that the informant, namely, A.S.I. B.K. Mishra was on patrolling and checking duty in the evening of 21.10.2009 and found that some drivers of three-wheelers had created a commotion. It was further found that one man who had attempted to run away, was arrested and from enquiries from drivers, like, Prabhat Kumar, Mantoo Kumar, it was found that the man arrested was demanding Rangdari from them and on account of non-payment, he was holding out threats. It was stated further that the arrested person was also questioned and his person was searched. It was found that he was keeping in his possession many slips over which the numbers of different three- wheelers were noted and further that three coins of rupees five denomination as also thirteen currency notes of rupees ten denomination were recovered. The arrested person pointed out his name as Arun Kumar Pandit and 2 further pointed out that he was collecting Rangdari as per the instruction of the present petitioner. Thus, what appears is that the implication of this petitioner was on the confession of arrested accused Arun Kumar Pandit before the police. On close of the investigation after registering Nawada Town P.S. Case no. 411 of 2009, the case was found not true against the present petitioner but, still the petitioner was summoned to stand his trial. It was submitted by the learned counsel for the petitioner that in fact the son of the petitioner had filed Complaint Case no. 424 of 2007 against the informant police officer, namely, B.K. Mishra, ASI, Nawada town police station and two others in which the petitioner was cited as a witness. The informant of the case, namely, ASI B.K. Mishra was putting pressure upon the petitioner not to depose in support of the allegations made in the above complaint petition, which he refused and in order to put criminal pressure upon him, the false FIR was drawn up by creating the confession of a co-accused before the police. The copy of the complaint petition filed by the son of the petitioner has been annexed as Annexure 3 to the present petition. As may appear from the very statement of facts upon which the present petitioner has been summoned, it could hardly be in doubt that the only material on which the petitioner was implicated in the case was the confession of the co accused before the police. The confession before the police of accused persons 3 could be good ground for effecting arrest of any person as it may give rise to a suspicion regarding the indulgence of a person in commission of any particular offence. But, when it comes to passing a summoning order, such inadmissible evidence or material could never be made the basis of initiating a prosecution. More over, there exists reasonable grounds to take note of the submission that the petitioner might have been implicated on account of some ulterior reason as assigned by learned counsel appearing on behalf of the petitioner. The son of the petitioner, namely, Pappu Kumar Gupta alias Pappu Khatik had preferred Complaint Case no. 424 of 2007 against the informant police officer and few other officials, both of the police and the telephone department and it appears from perusal of that complaint petition that the name of the petitioner was appearing at serial number one of the column of the witnesses. The complaint petition, as is evident, was filed in 2007 and the FIR was drawn up in the year 2009. There might be very sound reasons to suggest that the whole attempt of the informant could be to heap vengeance and harassment upon the petitioner as, not only he was a witness, but his son had also filed a case which he was likely to support in the court. Police officers have the power to record confession. The confession, moreover, is not a written document in the present case, it is simply a statement said to be orally made by the accused who was arrested with some cash and a few chits of papers. It would have been very easy for an officer of the status of the informant, who is aware of the implications of creating such 4 materials, like, a confessional statement and it could have been all the more easy thereafter to put pressure upon the complainant. The submission was that the complaint petition was also dismissed. That dismissal might be on account of willful implication of the petitioner in the police case. I am convinced from the materials placed before me that the whole exercise of the informant was to heap vengeance and harassment by launching a vexatious prosecution by creating completely inadmissible evidence, in the light of which, the order summoning the petition is quashed. The petition is allowed. Anil/ ( Dharnidhar Jha, J.)