IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.13281 of 2007 JITENDRA KUMAR KASHYAP, s/o Late Triveni Singh, R/o village Kanauli, P.S. Makhdumpur, District Jehanabad … Petitioner Versus 1. STATE OF BIHAR 2. Sharda Devi, W/o Late Ram Vinay Sharma, R/o Kanauli, P.S. Makhdumpur, District – Jehanabad. … Opp. Parties. ----- For the petitioner : M/s Rama Kant Sharma, Sr. Advocate Laxmi Kant Sharma, Adovcate For the State : Mr. Jharkhandi Upadhaya, A.P.P. For O.P. No. 2 : M/s Manish Kumar No. 2 & Dharmendra Chaubey, Advocates. ----------- ORDER This application at the instance of the petitioner is for the quashing of the order dated 7.12.2005 passed by the learned Addl. Chief Judicial Magistrate, Hilsa, Nalanda in Telhara P.S. Case No. 222 of 2004 , whereby on the basis of the charge sheet submitted by the police cognizance for offences under sections 302, 201, 120B/34 I.P.C. has been taken against all the accused including the petitioners. It appears that the aforesaid Telhara P.S. case was registered against unknown criminals on the basis of a fardbeyan given by Chaukidar 1414 Ramdeo Paswan at about - 2 - 8.30 A.M. on 8.9.2004. According to the informant at about 6 A.M. in the morning while he was giving fodder to his cattle some persons were crossing through his darwaza and from them he overheard that the dead body of an unknown person had been thrown behind Karara bridge. Hearing this the informant along with 1 – 2 persons of the village went to verify the matter and found that the unknown dead body which had been killed at some other place had been thrown there whereafter he rushed to the police station and gave information and came back to the P.O. where the S.I. inspected the dead body and found serious injuries behind the neck and thereafter the dead body was sent for post mortem examination. It appears that in course of investigation after about a month on 8.10.2004 Sharda Devi, the widow of the deceased, filed a petition before the Superintendent of Police, Nalanda alleging therein that she was married some 40 years back with deceased Ram Binay Sharma and since there had been no issue from the wedlock, in keeping with the wishes of her husband, she adopted the son of her sister, namely, Pankaj Kumar, some 40 years back and nourished and cared for him as their own son and after marriage of Pankaj, he and his wife were residing with the deceased and his wife. It was further alleged that deceased Ram Binay had six brothers all of whom were - 3 - criminal minded and as such she got herself separated from them. It is said that two brothers of her husband were killed and elder brother Shyamdeo Sharma, also a person of criminal antecedent, involved in several cases, had just come out from jail and took his other two brothers, Phulendra and Jitendra (petitioner), in his collusion and when it became clear that they would not get the property of the deceased, under a conspiracy by bringing a vehicle of their friend, took her husband with them and in the said vehicle Phulendra was found sitting. It is also stated that on inquiry being made by her they gave out that her husband had gone to the place of her samdhi whereafter she sent her adopted son to inquiry about it but Ram Binay could neither be found nor traced. She thought of giving information to Ghosi police but Shyamdeo and Phulendra terrorized her in many ways and finally she came to know that her husband had been killed and they kept giving threats of dire consequences, whereupon she gave information to the police. It has been submitted that the falsity of the case would be apparent from the facts that accused Shyamdeo Sharma lodged a complaint on 8.10.2004 categorically alleging therein that his brother Ram Binay had been taken by the alleged adopted son Pankaj Sharma , Umesh Sharma , Butai Sharma and - 4 - Sharda Devi and Phulendra but in the morning in the house of his brother he learnt from the wife of Pankaj Kumar that in the night Ram Binay Sharma suffered from diarrhoea and they had taken him for treatment and next day when they went there to inquire about their brother they learnt from Sharda Devi that their brother had died due to diarrhoea and his last rites had been performed at Fatuha. It is also said that on 20.9.2004 the Officer Incharge and constable had shown them a photograph of their deceased brother and the Officer Incharge told them that their brother had been killed and the dead body had been thrown near Katar pul. But as the police was not carrying out its duty and obligations and investigation he filed a petition on 23.9.2004 before the police whereafter another petition was filed by the brother petitioner herein but as no action was taken, they filed a complaint before the Superintendent of Police and the Court prior to the statement of Sharda Devi but the police by perfunctory investigation turned the table and concocted story according to the belated statement of the victim lady for property dispute. It has also been submitted that as Sharda Devi wanted to give all the property of Ram Binay to her adopted son Pankaj, it was Sharda Devi who was instrumental in the murder of the deceased. - 5 - It was also submitted that the falsity of the case would be further apparent from the fact that although Sharda Devi distributed cards for the sharadh ceremony of her husband performed on 19.9.2004 yet till the time she had deposed before the police she had not raised any suspicion against any one. But subsequently she concocted the present story by falsely implicating the brothers of her husband including the petitioner so as to put pressure on them not to claim share in Ram Binay’s property. An alibi has also been set up by the petitioners inasmuch as he was a constable was posted with the District Magistrate, Katihar and on 7.9.2004 he had accompanied the District Magistrate to Patna and came to Bhagalpur on 9.9.2004. The fact of the petitioner being on duty was certified by the District Magistrate and also the Deputy Collector, Confidential Cell, Katihar, and a request was made to verify the alibi of the petitioner. The letters written by the Collector and Deputy Collector have been annexed as annexure to this application. The grievance of the petitioner is that notwithstanding letters issued by such Government officials, the I.O. did not seek to verify the alibi and in perfunctory manner held the investigation and eventually submitted chargesheet against - 6 - the petitioner and his two full brothers. The submissions is that the petitioner has fallen a victim of perfunctory investigation and as such has prayed for direction to issue for re-investigation of the case under the provisions of section 173(8) Cr.P.C. in the ends of justice. It is true that in the proceeding under section 482 Cr.P.C. the Court is not required or duty bound to look into the alibi set up by the defence. However, in grave situation or in cases of faulty investigation the Court is not debarred from directing further investigation to prevent a miscarriage of justice. In the facts and circumstances of the case while setting aside the order taking cognizance the court below is directed to issue directions to the investigation officer for further investigation in respect of the petitioner in view of the letters written by the District Magistrate and the Deputy Collector, Nazarat, Katihar since the submissions of a report under section 173 (2) Cr.P.C. does not preclude further investigation. Accordingly this application is allowed and the matter - 7 - is remitted back to the court below to act in terms of the observations made above. Patna High Court, Patna. Dated : The 12th of November, 2008 Sanjay Pd./A.F.R. (Abhijit Sinha, J.)