1 IN THE HIGH COURT OF JUDICATURE AT PATNA CR. WJC No.322 of 2009 ARUN KUMAR BHAGAT Versus STATE OF BIHAR ----------- For the Petitioner : Mr. Akhileshwar Prasad Singh, Advocate. For the respondent State: Sri Manoj Kumar Jha, A.C.to G.A.I. 2 31.07.2009 Petitioner’ prayer is for amalgamation of Trial no. 1650 of 2009 and Trial no. 2337 of 2009, both arising out of G.R.No. 34 of 2007 (Madhubani Town P.S. Case No.2 of 2007), in view of the petitioner and Respondent Nos. 4 to 6 being accused in the same case and the accusation leveled against them are interconnected and interlinked. The petitioner is a peon in Madhubani Nagar Parishad. Respondent No.4 Rekha Nayak is the Chairman of Nagar Parishad and Respondent No.5 Sunil Nayak is the husband of Respondent No.4 and Respondent No.6 Jata Shankar Jha was the then Executive Officer of Nagar Parishad. Vide Annexure-1, FIR under Madhubani Sadar P.S. Case No.2 of 2007 under Sections 409, 420, 467, 468/34 of the Indian Penal Code was instituted by Jainendra Kumar, an Officer of Bihar Administrative service against the petitioner, Respondent Nos. 4 and 5 and one Dharmendra Singh, the then Executive Officer of the Parishad with the allegation that the petitioner being an executing agent, in collusion with other FIR named accused, misappropriated a sum of Rs.4,28,880/- which was the money given for executing a scheme for construction of dust-bins at 48 places and construction of drainage, but the work was not done at all and the money obtained for the work was 2 misappropriated . Along with the enquiry report, the District Magistrate reported about the complicity and connivance of the petitioner and other accused persons. However, it was found that the present Executive Officer Dharmendra Prasad Singh who was made accused in the FIR was not Executive Officer at the relevant time and at that time the respondent no.6 Jata Shankar Jha was the Executive Officer. Therefore, charge-sheet was submitted against the petitioner and respondent nos. 4 to 6. It is submitted that firstly charge sheet was submitted against the petitioner and respondent nos. 4 to 6 and, thereafter cognizance of the offence was taken against them and they were also put on trial under a separate trial. The petitioner is on trial under Tr.No. 1650 of 2009 and Respondent Nos. 4 to 6 are on trial under separate trial No. 2337 of 2009. Both the trials are in the same court of Judicial Magistrate, but the two trials are proceeding separately. Petitioner’s grievance is that he should be tried with other accused persons by amalgamation of trial. Learned counsel for the petitioner referring to Annexure-3 pointed out that the petitioner had himself written to the Commissioner, Darbhanga Division about the commission of the offence by way of duping the petitioner. Annexure-3 appears to have been written to the Commissioner, Darbhanga Division complaining that he (petitioner) is a peon who was under control of the respondent nos. 4 and 5 who were the Chairman and the husband of the Chairman of the Nagar Parishad and that on exercise of coercion, his signatures were 3 obtained on some cheques and plain paper and the amount was withdrawn and misappropriated by Respondent nos. 4 and 5. Learned counsel for the petitioner further refers to Annexure-4 which is the enquiry report of the District Magistrate, Madhubani as made on the petition of the petitioner. In this enquiry report also the District magistrate has stated about the complicity and collusion of the petitioner and the respondent Nos. 4 to 6, who were made accused in the FIR and who are facing trial on submission of charge-sheet. In course of hearing, learned counsel for the petitioner submitted that the petitioner wants to state the real facts before the Court and he also wants to go to the extent of confession also by way of intending to be an approver in the case. In such view of the matters, learned counsel submitted that the petitioner had filed a petition before the learned Magistrate for amalgamation of the two trials so that the petitioner may be tried under evidence produced as well as the admission/ confession made by the petitioner in presence of other accused. Vide the impugned order dated 15th January 2009 learned Magistrate refused the petitioner’s prayer simply on the ground that in the trial of the petitioner one witness had already been examined, whereas in the trial relating to other three accused persons only one witness was in attendance and two were absconding. The revisional court also maintained the order on the same grounds. Annexure-10 is the copy of the order-sheet of the 4 Chief Judicial Magistrate, Madhubani. In the order dated 27th June 2008 the learned Chief Judicial Magistrate mentions that record of Trial no. 1925 of 2008 (“G.R.No.34 of 2007) was received in his court and it was tagged with the record of Trial no.560 of 2008 (G.R.No.34 of 2007) and then he amalgamated the record. Vide order dated 31st July 2008 of the learned Chief Judicial Magistrate, it is mentioned that the amalgamated records were sent to Sri P.D. Mishra, Judicial Magistrate 1st Class, Madhubani for disposal. Thus both the records were amalgamated by the Chief Judicial Magistrate and they were sent to the learned Magistrate in that condition for proceeding with the trial. But it appears that the learned Magistrate is proceeding with the two trials separately. There does not appear to be any bifurcation of the trial after the order dated 27th June 2008 of the learned Chief Judicial Magistrate amalgamating two records for the purpose of trial. In such view of the matters and considering the nature of the offence as well as the facts and circumstances of the case and the petitioner’s prayer that both the cases be tried together, learned Standing Counsel appearing for the State submitted that in the petitioner’s case, one witness has already been examined and that in the another case out of three accused, one is in attendance and the two are absconding. But this does not appear to be impediment in the analogous trial. The witness examined can be re-examined before the other accused persons of the trial, while analogous trial is conducted further. The 5 learned Magistrate need not wait unnecessarily for the appearance of absconding accused and he can proceed with the trial of the accused who are present before the court and in case the learned Magistrate feels necessary, he may also proceed to recording of evidence under Section 299 Cr.P.C. against the absconding accused. During hearing, learned counsel for the petitioner has submitted that the petitioner intends to file a petition under Section 306 Cr.P.C. with a prayer to become an approver in the case. If any such petition is filed within two weeks from the date of receipt of the order, the learned Magistrate will dispose of the same according to law. On the reasons as stated above, the impugned orders dated 15th January 2009 (Annexure-12) of the learned Magistrate and 18th February 2009(Annexure-13) of the learned Sessions Judge are set aside. The learned Magistrate will proceed with the joint trial of the cases. Thus, the petition is allowed with the observations/directions as above. Jay/ (C. M. Prasad,J)