IN THE HIGH COURT OF JUDICATURE AT PATNA CR. WJC No.650 of 2010 MD. SHAMSE ALAM Versus THE C.B.I.THRU.SUPERIN.POLICE ----------- 2 12.8.2010 The petitioner prays for staying the trial of Sessions Trial No.523 of 2004 pending before the learned Additional Sessions Judge, VII, Patna till the disposal of Criminal Appeal No.478 of 2007 pending before the Hon’ble Apex Court filed by one Kamlesh Kumar Gautam, informant of another case namely Gardanibagh(Shastrinagar) P.S. Case No.866 of 2002. The petitioner submits that on 28.12.2002 at about 4.15 P.M., three persons were killed while committing dacoity in a shop, in respect of which three cases were registered bearing Gardanibagh (Shastrinagar) P.S. Case Nos.866 of 2002, 867 of 2002 and 868 of 2002. The first case bearing Gardanibagh (Shastrinagar) P.S. Case Nos.866 of 2002 was registered on the F.I.R. lodged by one Kamlesh Kumar Gautam, the owner of the shop where occurrence took place. He stated that on 28.12.2002 at about 4.15 P.M., about 9 to 10 boys on the point of pistol began to commit dacoity. On hearing hulla public gathered. An scuffle took place between the informant and other public on the one side and the dacoits on the other side. In the meanwhile, the police reached at the place of occurrence. An encounter took place between the police and the criminals in which three miscreants were killed by the police, while rest fled away. 2 The second case bearing Gardanibagh (Shashtrinagar) P.S. Case No.867 of 2002 was registered on the F.I.R. of the petitioner, who was S.H.O. of the Police Station. It has been stated that on getting information of occurrence the petitioner arrived at the place of occurrence and in the encounter with criminals, three culprits were killed. The third case bearing Gardanibagh (Shashtrinagar) P.S. Case No.868 of 2002 was registered on the F.I.R. of one Mukesh Ranjan, who is the brother of one of the deceased namely Vikash Ranjan, wherein it has been alleged that the police personnel murdered the three persons in a fake encounter. The State Government handed over investigation of all the three cases to the Central Bureau of Investigation. After investigation final report was submitted in form of closure report stating that first two cases namely Gardanibagh (Shastrinagar) P.S. Case Nos.866 of 2002 and 867 of 2002 are false and in the third case charge sheet was submitted. The informant Kamlesh Kumar Gautam of first case bearing Gardanibagh (Shastrinagar) P.S. Case Nos.866 of 2002 filed a protest petition giving rise to Protest cum Complaint Case No. 01(C) 2003 against three deceased and seven unknown persons. However, the aforesaid complaint was dismissed by the learned Special Judicial Magistrate, C.B.I., Patrna by order dated 10.9.2003. Being aggrieved by the aforesaid order, the informant Kamlesh Kumar Gautam filed Criminal Misc.No.34800 of 2003 before this court which too was dismissed by order dated 3 17.5.2004. Against the aforesaid order, the informant Kamlesh Kumar Gautam preferred Special Leave to Appeal (Crl.) No.4117 of 2004 before the Hon’ble Apex Court which is pending for adjudication. The petitioner prays for staying the trial of S.Tr.Case No.523 of 2004 arising out of Gardanibagh (Shastrinagar) P.S. Case No.868 of 2002 on the ground that the main defence of the petitioner is contained in Gardanibagh (Shastrinagar) P.S. Case No.866 of 2002, in which the protest petition filed by the informant was dismissed by the learned court below and affirmed by this court. However, the appeal preferred by the informant is pending before the Hon’ble Apex Court. Counsel for the C.B.I. submits that in the instant case all the prosecution witnesses have been examined and trial is pending for examination of defence witness. He further submits that another co-accused namely Kamlesh Kumar Gautam who had filed Cr.W.J.C.No.836 of 2007 for staying the Sessions TrialNo.523 of 2004/918 of 2002 arising out of Gardanibagh (Shastri Nagar) P.S. Case No.868 of 2002, till the disposal of S.L.P.(Cri) No.4117 of 2004 pending in the Hon’ble Apex Court, has been dismissed by this Court vide order dated 26.9.2008. Heard counsel for the parties, the prayer of the petitioner is misconceived and devoid of any merit. A similar application bearing Cr.WJC No.836 of 2007 was filed by Kamlesh Kumar Gautam, the informant of Gardanibagh 4 KHAN (Shastrinagar) P.S. Case No.866 of 2002 for similar relief for staying the Sessions Trial No.523 of 2004/918 of 2004 arising out of Gardanibagh (Shastri Nagar) P.S. Case No.868 of 2002 has been rejected by this court by order dated 26.9.2008. In the instant case the prosecution has closed its evidence and defence has been called to adduce evidence. The defence of an accused is to be based on its own documents and witnesses that it may like to produce before the trial court. It has to stand on its own leg. It would not be dependent upon an outcome of another case, which too has not been filed by him. Nothing restricts the petitioner from adducing his defence. For the reasons stated above, I am not inclined to stay further proceeding in the instant Sessions Trial No.523 of 2004 arising out of Gardanibagh (Shastrinagar) P.S. Case No.868 of 2002 on the ground that deposition of defence witness/evidence should await outcome of S.L.A.(Crl.4117 of 2004) filed by Kamlesh Kumar Gautam, informant of another case against dismissal of his complaint by the Special Judicial Magistrate, C.B.I., Patrna. This application is accordingly dismissed. (S.P.Singh,J)