CRIMINAL MISCELLANIOUS No.19607, 34657 & 49995, ALL OF 2006 ******* In the matter of applications under Section 482 of the Code of Criminal Procedure. ******* 1.BIJOY PRAKASH 2.JAI PRAKASH NARAYAN YADAV, --PETITIONERS Versus THE STATE OF BIHAR----------------OPP.PARTY (Cr.Misc. no.19607/2006) MUKESHWAR PRASAD------------------PETITIONER Versus STATE OF BIHAR--------------------OPP.PARTY (Cr.Misc.no.34657/2006) ARVIND KUMAR----------------------PETITIONER Versus 1.STATE OF BIHAR 2.VIJAY PRAKASH ------------------OPP.PARTIES (Cr.Misc. no. 49995/2006) ******* For the Petitioners : M/s Rana Pratap Singh, (In Cr.Misc.nos.19607 Chittaranjan Sinha, & 34657 of 2006) & Sumant Singh, Anirbhan For Opp.Party no.2 Kundra, Krishna Narayan (In Cr.Misc.no.49995 Jha, & Sanjay Kr. Singh Of 2006) For the Petitioners : M/s Prasoon Sinha & (In Cr.Misc.no.49995 Udai Shankar Singh Of 2006) For the State : Mr. Damodar Pd. Tiwari, APP. ******* P R E S E N T THE HON'BLE MR. JUSTICE AKHILESH CHANDRA 2 Akhilesh Chandra, J. Heard learned counsels representing the parties and learned Additional Public Prosecutor for the State. 2. Since all the three cases are interconnected, and at the time of orders on admission in the cases wherein orders were passed, subsequently they have already been ordered to be heard together with earlier admitted cases. Accordingly, all the three cases have been heard together and are being disposed, with the consent of the parties, of by this common order under Section 482 of the Code of Criminal Procedure. 3. The former two cases that is Cr.Misc. no.19607 and 34657, both of 2006, have been preferred by respective petitioners seeking quashing of order dated 02nd May, 2006 passed in G.R. Case no. 1308 of 2005; Khaira P.S. Case no.187 of 2005, by the Subdivisional Judicial Magistrate, Jamui, rejecting their prayer seeking discharge under Section 239 of the Code of Criminal Procedure. 4. Latter case, that is, Cr.Misc. no. 49995 of 2006 has been preferred seeking quashing of order 3 dated 18th April, 2006 passed by the learned Subdivisional Judicial Magistrate, Jamui, in Complaint Case no. 880C of 2005 taking cognizance against the petitioner for the offence under Section 323 of the Code of Criminal Procedure. 5. Admitted relevant facts is that one Khaira P.S . Case no. 183 of 2005 under Sections 25 (1-a) (1-b), 26 and 35 of the Arms Act, 47(A) of Excise Act, 353, 201 and 171 of the Indian Penal Code and 123/132 of the Representation of Peoples Act on 18th October, 2005 against petitioner no.1 of Cr.Misc. no. 19607 of 2006 and others such as Ashok Ram and Batohi Yadav besides three unknown. On a written report of S.I. Binod Kumar, Incharge, Cheeta S.T.F., with the assertion that the informant along with 29 Commandos was on duty at District Control Room, Jamui since 7.30 A.M. on 18th October, 2005 when some complaint was received during Assembly Election of 2005 as voters were being terrorized by orders of superiors which proceeded for verification and necessary actions, arrived near village Khaira, Booth 4 no.137. He found large gathering and could see two vehicles were coming from Garhior, signals were given to stop. In first vehicle (Tavera-Chevarlet no. JH-25K 8851) Police found one person in civil dress but three were in Police Uniform and in second vehicle (Bolero no. BR-53 3046) two persons were sitting , one rifle was also found kept in one vehicle which started fleeing towards Khaira brick soling road but after the chase one of the occupant in Civil dress could be over powered, who disclosed his name as Vijoy Prakash Yadav, a candidate of such election, and also disclosed that the persons fleeing were his body guards. 6. The second vehicle was also stopped, on interrogation from this could be disclosed that occupants are Ashok Ram, an independent candidate in said Assembly Election, another was Batohi Yadav, three persons in Police Uniform succeeded in fleeing but the person in civil dress could be caught. Details of wearing of the persons apprehended is also there. One rifle was recovered from beneath the seat besides one red colour brief case containing Rs.6.68 lacs in cash and 12” patti 5 with dynamo set 60 cartridges of 3006 bore and 50 bottles of rum was also recovered, seizure list was prepared and thereafter the case was instituted. 7. Subsequently, the accused persons apprehended in the above case appears released by the Investigating Officer of the case giving rise to institution of Khaira P.S. Case no.187 dated 20th October, 2005 for the offences under Section 218, 225A(1) and 120 of the Indian Penal Code. Subsequently, section 409 of the Indian Penal Code was added on 24th October, 2005 against five persons including the three named, namely. Khaira P.S. Case no. 183 of 2005 and Jai Prakash Narayan Yadav, Central Minister, brother of Vijoy Prakash and all these two brothers are petitioners in Cr.Misc. no. 19607 and Investigating Officer of the cases suspended Assistant Sub-Inspector of Police, Mukeshwar Prasad, petitioner in Cr.Misc. no. 34657 of 2006, the subsequent case was instituted on the written report of Sub-Inspector Shahid Akhter, stating therein that the three accused persons were apprehended and earlier Khaira P.S. Case no. 183 of 2005 was instituted 6 against the three persons. Investigating Officer of the case, Mukeshwar Prasad, in conspiracy with Central State Minister, Jai Prakash Nrayan Yadav, released the named apprehended accused persons under his pressure irrespective of the case instituted for non-bailable offences with the Investigating officer also. The matter was enquired into by the Deputy Superintendent of Police by the orders of Superintendent of Police through Memo. no.1963 Gopniye dated 10th October, 2005. In it revealed from his report through Memo.no.1101 dated 19th October, 2005 that under pressure of Central State Minister in a conspiracy, the apprehended accused persons were released on bail but no such paper was produced except plain paper under the signatures of alleged bailers. Accordingly, the case was instituted. 8. It is also undisputed that in both the cases, that is, Khaira P.S. Case no. 183 and 187, both of 2005, the Police, after investigation submitted charge sheet against the accused persons and cognizance was taken by the courts for the offences, the case was instituted and found true after investigation by the 7 Police. 9. It is also admitted position that petitioner no.1 of earliest case had preferred Cr.Misc. no.25557 of 2006 on 26th June, 2006 seeking quashing of order dated 8th June, 2006 passed in Khaira P.S. Case no. 183 of 2005 by the Subdivisional Judicial Magistrate, Jamui, refusing his prayer under Section 239 of the Code of Criminal Procedure seeking discharge and order under challenge was quashed by the order dated 20th May, 2007 with a direction to court below to pass speaking and reasoned order after hearing both sides in accordance with law. It would be out of place mention that petitioner no.2 of said case Jai Prakash Narayan Yadav had also filed Cr.Misc. no. 14149 of 2006 on 3rd April, 2006 seeking quashing of order dated 23rd January, 2006 passed in Khaira P.S. Case no. 187 of 2005 taking cognizance for the offences under Sections 218, 225A and 120B and 409 of the Indian Penal Code but the same has recently been dismissed as withdrawn on 4th August, 2010. 10. Meanwhile, Bijoy Prakash Yadav, the 8 named accused in Khaira P.S. Case no.183 and 187, both of 2005, filed Compliant Case no.880 of 2005, on 20th October, 2005 in the Court of Chief Judicial Magistrate, Jamui for the offences under Section 307, 323, 341, 394, 384, 504 /34 and 120 B of the Indian Penal Code against Sri Arvind Kumar, Superintendent of Police, Jamui besides 25-30 unknown armed members of Special Task Force alleging therein that on 18th October, 2005 at about 5.00 P.M. after polling of the day was over and the complainant, a candidate for Assembly seat, representing Rashtriya Janta Dal, reached at campus of Forest Depatment Khaira, he found the A.S.P. sitting in the campus. The complainant went to meet him and complained of booth capturing by the candidate representing Janta Dal (U). He asked about his identity. When it was disclosed and I-Card was shown, as alleged, the S.P. started abusing, kept the I-card and search of vehicle was conducted from were licensed rifle was seized inspite of protest and when on demand the licence was shown it was also kept and thereafter at the time at the dictates of S.P., members of 9 State Task Force assaulted the complainant by butt of rifles and even the S.P. himself gave him some lathi blow besides one blow on private part by feet. Intention of Police was to encounter the complainant in collusion with the rival candidate. It is further stated that one brief case was called from somewhere and at the pistol point the complainant was paraded carrying rifle and attaché from Forest Department to the Police Station where photograph keeping attaché on his hand carrying rifle was taken. It is also alleged that intention of the Superintendent of Police was to kill the complainant near Forest Department but due to arrival of Media personnel the game could not succeed. Subsequently, belonging of the complainant, ornament, wrist watch, rifle etc, worth rupees 1.5 lacs was snatched. It is again stated that when vehicle of one independent candidate Ashok Rai, Advocate, arrived near the Forest Department, his vehicle too was intercepted and the candidate was assaulted and publicly made naked. In the assault, one finger of right palm of Ashok Rai has also been broken. In said vehicle, wine and one whiper 10 said to be detonator was also kept. In this way the conspiracy against the complainant was organized just to falsely implicate. By force his signatures on plain papers were also obtain. Inspite of the information given to the Officer in charge, no treatment was provided nor case was instituted against the assailants who kept the complainant and witnesses under wrongful confinement for several hours. However, after verification of rifle the complainant and the witnesses were released at about 11.30 P.M. He was in great pain and he remained under treatment so no cause was instituted on 19th October, 2005 and the complaint was filed on 20th October, 2005 wherein statement of the complainant on solemn affirmation could be recorded on 18th November, 2005 and thereafter some witnesses were also examined. But the court finding the case under Section 323 of the Indian Penal Code took cognizance for the said offence giving rise to Cr.Misc. no. 49995 of 2006. 11. The learned counsel representing the petitioners in earlier two cases vehemently submitted 11 that neither there was any material against them nor there was valid sanction for prosecution against the Investigating Officer of the case but the Court below by the non-speaking order refused to discharge them. Even case laws cited have also not been mentioned. It is also contended that there is no evidence at all showing presence of Jaiprakash Narayan Yadav, the Central State Minister and the petitioner Mukeshwar Prasad, Investigating Officer was well justified in releasing the apprehended accused persons in Khaira P.S. Case no. 183 of 2005 finding the offences bailable. Learned counsel further placed reliance upon the decision of Apex Court in the case of State of Karnataka V. Muniswamy; (1977) 2 S.C.C. 699, and in the case of Lalu Prasad alias Lalu Prasad Yadav V. State of Bihar through CBI (AHD) Patna, (2007) 1 SCC 49. On the other hand, learned Additional Public Prosecutor by placing reliance upon decision of Apex Court in the case of State of Delhi V. Gyan Devi; 2001(1) PLJR page 42 (SC), and referring paragraphs 46, 124, 342, 388 and 412 to 414 of the case diary submitted that there 12 was sufficient material against all the accused persons to proceed for and rightly the court below turned down their prayer made under Section 239 of the Code of Criminal Procedure. At the same time, the learned Additional Public Prosecutor refused to accept that the impugned order as non-speaking, which order, runs as such: “Today is the date fixed for order. There are six petition filed on behalf of accused persons, namely, Jai Prakash Narain Yadav, Vijoy Prakash, Triveni Yadav, Ramdeo Yadav, Mukeshwar Prasad, Ashok Ram, Batohi Yadav, Md. Illiyas Hussain @ Md. Illiyas Khan, Syed Saukat Ali and Nehal Fakruddin @ Neela, who prayed to discharge them from this case u/s 239 Cr.P.C., as no material is on record against them. Heard the learned counsels on behalf of petitioners as well as learned A.P.O. on behalf of the State. Learned counsel for petitioners has submitted that neither any material on record nor any whisper about the alleged occurrence against the accused petitioners and so, they may be discharged from this case. Learned A.P.O. has vehemently opposed the prayer and submitted that there is sufficient materials on record against the accused petitioners that a prima facie case is made out against the accused petitioners. I also perused the case record, case diary, materials available on record as well as ruling filed on behalf of petitioners. In this case, the learned C.J.M. has taken cognizance against the said petitioners u/ss 218, 225(A), 120B and 409 I.P.C. I find sufficient materials 13 against the accused petitioners to face trial in this case. Under the facts and circumstances of the case and the materials available on record, I find no merit in the petitions filed on behalf of accused petitioners u/s 239 Cr.P.C. and accordingly, the same stand rejected.” 12. As it appears from the order under challenge, reproduced above, the trial court though has said that he has gone through the case diary and the rulings cited by the petitioners but at the same time he has not taken any care to even refer the decisions what to speak of their applications. Similarly, the trial court failed to refer even the relevant paragraph of the case diary what to speak of stating gist of the materials contained therein compelling him to proceed with the trial and frame charges against the accused persons. 13. No doubt, at the time of framing of charge or proceeding with the case normally any detailed order is not required. 14. But once the accused persons, in exercise of their right, seek discharge or assert that there is no material against them, it is the duty of the trial court to pass speaking order assigning at least, in short, the reasons and the materials contained in the case diary 14 so that one could appreciate that order, whatever is has been passed by application of judicial mind. 15. It also appears from the subsequent order of same day, that is, 02nd May,. 2006, that after passing of the impugned order all the ten accused persons separately, by filing petitions, sought one month’s time from the court enabling them to move to the superior Court. There was objection and, ultimately, 16th May, 2006 was the date fixed to bring stay order or physical presence for framing of the charge. Some of the accused persons, who were in custody, were ordered to be produced on the date fixed. 16. It is undisputed that till the date fixed, that is, 16th May, 2006, there was no stay order from this Court in either of the cases. As it appears from order dated 09th August, 2006 passed in Cr.Misc. no. 19607 of 2006 that, for the first time, further proceeding of the court below was ordered to be stayed vide order dated 21st July, 2006 passed in Cr.Misc. no. 14149 of 2006. 17. None of the side could be able to intimate this Court as to what happened on 16th May, 15 2006 or thereafter whether charges were framed / explained and trial commenced or the order remained ineffective. 18. The learned counsel for the petitioner in Cr.Misc. no. 49995 of 2006 vehemently submitted that the complaint case has been filed by Bijoy Prakash Yadav only on frivolous grounds just to put pressure upon the Police and create an undue defence in Khaira P.S. Case no. 183 and 187, both of 2005, inspite of knowing that such cases have already been instituted against the complainant opposite party no.2, there is no whisper of such institution of the case though distorted facts relating to such cases appears mentioned in the complaint petition. The learned counsel by placing reliance upon the case of State of Haryana V. Bhajan Lal ; A.I.R. 1992 S.C. 604, submitted that since complaint case has been filed just in personal vengeance, so the impugned order as of complaint deserve to be quashed. Learned counsel for opposite party no.2, who representing him in Cr.Misc. no. 19607 of 2006 submitted that it is the re-production of work 16 happened on the day and how the Police specially the Superintendent of Police behaved with a candidate fighting for Assembly election. Materials therein have been supported by the complainant and the witnesses in the statement and they need not be reproduced. Learned Additional Public Prosecutor also supported the impugned order. 19. From the plain reading of the complaint petition finding case at Annexure-1 and statement of the complainant on solemn affirmation, it is evident that the complainant has not mentioned even a word about institution of Khaira P.S. Case no. 183 of 2005 against him and his witnesses cited in the complaint petition, knowing fully well that he and his witnesses have been released by Police in aforesaid. The complainant may or may not have knowledge of institution of Khaira P.S. Case no.187 of 2005 relating to his and other named accused as alleged unauthorized release, by the person having no authority. But, almost what has been alleged against the complainant in written report of Khaira P.S. Case no. 183 of 2005 wherein the 17 complainant and his witnesses were detained appears mentioned in the complaint but undisputedly there is no reference of its investigation against them. One may assume that in the complaint petition institution of Khaira P.S. Case no.183 of 2005, purposely could not be mentioned, only to deprive the Court from, deriving truth on putting some questions to the complainant or his witnesses or considering other options as prescribed under Section 156(3) and 210 of the Code of Criminal Procedure relating to possible institution of cases upon similar and same facts with the police. 20. Such act of the complainant in view of the admitted institution of the cases against him brings the complaint in the category of the complaint containing allegations to satisfy personal vengeance etc. and concealing the truth consequently needs interference of this Court. 21. In view of the facts and circumstances, discussed above, finding, the order under challenge in earlier two criminal cases, i.e., the order dated 02nd May, 2006 in Khaira P.S.Case no. 187 of 2005, a non- 18 speaking order needs a fresh order by the Court below, but only in the event of charges against the accused persons are neither framed / explained nor the trial commenced so far the impugned order dated 02nd May, 2006 in latter case, i.e., Cr.Misc. no. 49995 of 2006 passed in Complaint Case no. 880C of 2005 and the Complaint Petition, both are quashed. Accordingly, all the three cases stand disposed of. (Akhilesh Chandra, J.) Patna High Court, The 18 th August, 2010, AAhmad/ (NAFR).