IN THE HIGH COURT OF JUDICATURE AT PATNA CR. REV. No.486 of 2007 NAND KISHORE SRIVASTAV Versus STATE OF BIHAR ----------- 3 15.9.2008 This revision has been preferred against the order dated 12.3.2007 passed by the Additional Chief Judicial Magistrate, Bhagalpur in Kotwali (Barari) P.S.Case No.440/94/ G.R.No. 1811/04A/ T.R.No. 1337/07 thereby the cognizance under Section 304/34 of the Indian Penal Code has been taken against the petitioner and others. Heard learned counsel for the parties. This is a case of custodial death which relates to the occurrence of the year 1994. According to prosecution case, the then Dy.S.P. Shailendra Kumar Singh conducted a raid to arrest the accused of Jagdishpur P.S.case No. 118/94. In course of raid Rajendra Mandal and Shankar Mandal were arrested and they were remanded in Jagdishpur P.S.Case No. 130/94.It has been alleged that they were brutally beaten by the police. As a result, Rajendra Mndal died during the course of treatment. The case was ultimately investigated by the C.I.D. and the first charge-sheet was submitted on 12.12.2005 against Surendra Singh. Later on a supplementary charge-sheet was submitted on 8.3.2007 against this petitioner and three others including the then Dy. S.P. It is submitted by the learned counsel for the petitioner that the learned Additional Chief Judicial Magistrate, Bhagalpur has taken cognizance against this petitioner without considering the materials available in the case diary. This petitioner had no concern with the raiding party or to arrest and thrash the victim. In the entire case diary not a single witness has - 2 - named this petitioner. It is further submitted that the widow of the victim also lodged a case being complaint case No. 557/94 (annexure-4). In that very case also this petitioner has not been added as accused .The entire allegation is against the members of raiding party including Dy. S.P.Without any material and ground the Investigating Officer sent a letter to the competent authority for grant of sanction for prosecution against this petitioner also. The sanctioning authority without applying his mind granted sanction in mechanical manner. Apart from sanction, there is no material to show complicity of this petitioner in the alleged crime. Learned counsel for the State also after gonging through the entire case diary conceded that accept paragraphs 413 and 463 the name of the petitioner does not figure in the statement of any witness. Even the then Dy.S.P.in his statement before Investigating Officer did not name this petitioner. Paragraphs 413 and 463 are only in respect of sanction for prosecution. Considered the submission of learned counsel for the parties. Perused the entire case diary. Submission of learned counsel for the petitioner appears to be correct. There is no material in the case diary to show any complicity of this petitioner with the alleged crime. This petitioner was also not the member of raiding party. In the result, this application is allowed and the impugned order dated 12.3.2007 is hereby set aside but only in respect of this petitioner. B.Jha (Ghanshyam Prasad)