IN THE HIGH COURT OF JUDICATURE AT PATNA CR. WJC No.75 of 2009 ABDUL HASIB @ ABDUL HAMIB Versus THE STATE OF BIHAR & ORS ----------- 5. 11.9.2009 A counter affidavit is stated to have been filed on behalf of the Superintended of Police on 10.9.2008. The same is not available on record. The Court therefore requested the counsel for the State to make available his copy for perusal by the Court so as to not hold up the proceedings. The office is directed to place the original copy of the counter affidavit on the record. Heard learned counsel for the petitioner and the State. The petitioner was a candidate for the post of Mukhiya, of Gram Panchayat Raj Bankata, District- Gopalganj. He was successful. An F.I.R. came to be lodged against him for having contested the election on basis of wrong caste certificate that he was a ‘Churihar’ by caste when he was actually a ‘Manihar’ by caste. To that extent there may not be any occasion for this Court to interfere in exercise of its writ jurisdiction. Fardbeyan was recorded on 12.8.2008 and F.I.R. was registered on 14.8.2008. On 21.8.2008 the State Election Commission wrote that ‘Churihar’ and ‘Manihar’ appears to be one caste amongst Muslims and the term appears to have been used interchangeably and for which the Commission looked into the records of the years 1909, 1917 and 1936. The commission was therefore of the opinion that this was a matter which requires further investigation as to whether actually they constitute two separate 2 castes or were names used interchangeably. At Annexure-13 to the writ application is a letter of the District Magistrate dated 12.9.2008. It does not meet the materials discussed by the State Election Commission on which the Commission was prima facie of the opinion that they perhaps constitute one caste. What the District Magistrate says is that in view of the fact that in the notification issued by the State Government, the caste Churidar is mentioned at serial 96 in list- I and in the list –II no caste by the name of Manihar is mentioned, he was not competent to make enquires into the matter and in turn sought further guidance from the State Election Commission itself. The counter affidavit of the Superintendent of Police has chosen not to answer the prima facie view of the Commission dated 21.8.2008 as discussed above. All that it states that investigation has been completed and charge sheet filed. It is apparent from the two letters dated 21.8.2008 and 12.9.2008 that there appears to be a serious controversy as to whether the two categories constitute different names of one caste or whether they constitute two different castes. Until this factual aspect of the matter is not clarified administratively the F.I.R. becomes speculative and non est. The F.I.R. itself suffers from vagueness. The Court would have thought that if the Police investigated the matter and submitted charge sheet, it may have resolved the controversy based on impirical investigation and data. The Superintendent of Police has chosen not 3 to make any such statement on oath much less of the materials on the basis of which charge sheet came to be submitted. The affidavit is by an officer as senior in rank as the Superintendent of Police. The casualness of the affidavit by such a senior officer disappoints the Court. The Court is not satisfied that based on such a casual affidavit, the petitioner can be permitted to be exposed to the vagaries of a criminal prosecution. This Court therefore holds that the F.I.R itself is not sustainable in view of the documents of the respondents themselves making the very basis of the F.I.R. unsustainable. The First Information Report lodged against the petitioner registered as Kuchaikot P.S. Case No. 126 of 2008 is hereby quashed. After the enquiry as referred to in the communication dated 21.8.2008 and 12.9.2008 is concluded based on impirical data and materials, if the authorities arrive at a prima facie finding of guilt of the petitioner, they shall be at liberty to proceed appropriately. The writ application stands allowed. P. Kumar (Navin Sinha, J.)