IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.2313 of 2006 RATAN TIWARY S/O VISHWA JEEWAN TRIPATHY, SAHGORA, GAGHA, GORAKHPUR, UP. VERSUS 1. THE STATE OF BIHAR THROUGH HOME SECRETARY, PATNA 2. DGP, BIHAR 3. SP, BETTIAH AND 4. O/C, POLICE STATION BETTIAH (M) WEST CHAMPARAN. ----------- 7 22.03.2010. The petitioner prays for quashing the entire criminal prosecution launched in Bettiah Mufassil Police Station case no. 129 of 2000, dated 26.6.2000 as well as for quashing order dated 29.6.2000 of warrant of arrest and subsequent order issuing process under sections 82 and 83 of the Cr.P.C. 2. The instant case has been registered on the fard beyan of local police lodged under sections 364A,302,324,307 and 120B of the I.P.C. and section 27 of the Arms Act against accused persons. It has been alleged that the accused persons kidnapped one Ramesh Todi alias Muna Todi and when people resisted, they opened fire killing one Md. Nezamuddin Mian. The petitioner was also identified as one of the accused persons. The employees of the factory alleged that the instant occurrence was committed at behest of the accused Ratan Tiwari as victim did not accede to the demand of - 2 - extortion. 3. The petitioner submits that subsequently police filed requisition on 29.6.2000 for issuance of warrant of arrest as well as process under sections 82 and 83 Cr.P.C. The learned Chief Judicial Magistrate vide impugned order dated 29.6.2000 issued both warrant of arrest as well as process. 4. The petitioner submits that no warrant of arrest can be issued in aid of investigation and in support of his submission learned counsel relied upon the judgment of this court in case of Krishna Murari Yadav Vs. State of Bihar, reported in 2005(3) PLJR 746. Learned counsel submits that it will be impermissible for the Magistrate to issue both warrant of arrest as well as process under sections 82 and 83 Cr.P.C. by same stroke of pen, if requirements mentioned thereof are not met. He further submits that 9 of the accused persons put on trial, have been acquitted by judgment dated 6.11.2006 in Sessions Trial No. 80 of 2005 and 2 more persons have been acquitted recently also. On these basis, he submits that the trial of the petitioner would be a futility and principle of stare decisis would apply. In support of his submissions, learned counsel relied upon decisions of single - 3 - bench of Allahabad High Court, passed in case of Sanju @ Sanjeev Kumar Vs State of U.P. and anr, reported in (2005(3) 243(All) and Diwan Singh Vs. State of UP, reported in 1965(2)ACC 118. On 27.1.2006 notice was issued to opp.party no. 4 and further proceeding in the instant case was stayed so far as this petitioner is concerned. Learned counsel further submits that prosecution is manifest with personal malafide of Opp. party no. 4. 5. No one appears for Opp. party no. 4. 6. Heard the petitioner and State. 7. The first point of the petitioner is that no warrant of arrest can be issued in aid of investigation. There is no dispute to the aforesaid proposition of law, if the facts are so. From the requisition filed by police, I do not find that same has been made in aid of investigation. It would appear that the petitioner is named accused in a case registered for offence under sections 364A and 302 I.P.C. The police in its requisition stated that the accused petitioner is named in the FIR and is evading arrest. This court in case of Randhir Sharma reported in 2010(1) PLJR 350 after referring to the case of K Krishna Murari Yadav Vs. State of Bihar, reported - 4 - in 2005(3) PLJR 746 as well as State Vs Daud Ibrahim, reported in 1997 Supreme Court 2492 discussed that if accusations against named accused is well founded, based on evidence of eye witness distinct from suspicion and belief, and such person is evading arrest, warrant of arrest can be issued under section 73 Cr.P.C. for his appearance before court and not solely in aid of investigation. 8. Thus, I do not find any fault in the order of the trial court issuing warrant of arrest against the petitioner u/s 73 Cr.P.C. 9. So far as other submissions of petitioner that it was not permissible in law for the police to make prayer both for warrant of arrest and processes u/s 82 & 83 Cr.P.C. in the same petition, has substance. 10. The procedure regarding issuance of process has been prescribed under sections 82 and 83 of the Cr.P.C. The requisitions made by prosecution for issuance of process against accused petitioner do not satisfy the conditions prescribed in sections 82 and 83 Cr.P.C., as such, part of order dated 29.6.2000 issuing process against accused u/s 82 & 83 Cr.P.C. is quashed. - 5 - 11. This takes me to the last submission that since 11 out of 12 accused persons have been acquitted, putting the petitioner on trial would be abuse of process of court. The plea is that evidence would be same, as in the case of other accused persons, who were put on two separate trials and acquitted. Learned counsel for the petitioner has relied on two decisions of the Hon'ble Allahabad High Court referred above. The submission of learned counsel is misconceived. It appears that on account of interim order granted by this court, the proceeding against this petitioner remained stayed, whereas proceeding against other accused persons continued. At this stage, it would be too early and naive to assume that the evidence that may come in case of petitioner would be same as those acquitted in trial. It is well settled that the trial of a person, who is named accused u/s 302 and 364A IPC in the FIR should not be scuttled at threshold of investigation itself. 12. In case of Diwan Singh Vs. State of Uttar Pradesh referred to by the petitioner, two persons were convicted under the same charge for offence having been committed in the same transaction, on the basis of same evidence. The appeal filed by one of the convicts resulted in - 6 - acquittal, whereas in the other appeal the conviction was sustained. In these circumstances, the Hon’ble Allahabad High Court held that acquittal of one of the accused on same set of offence must lead to acquittal of other on the basis of principle of stare decisis. In my view, this principle would not apply in the instant case, as trial has yet to commence against the petitioners. 13. In the case of Sanju @ Sanjeev Kumar (Supra), the Hon’ble Allahabad High Court held that if two separate trials under the same charge and same offence proceeds against two different accused and one accused person is acquitted, continuation of other trial in respect of other accused would be abuse of process of law and in violation of principle of Stare decisis In the aforesaid case, on suspicion two accused, namely, Brajesh alias Popi and his brother Shailendra were arrested, but they did not disclose name of appellant who was below age of 16 years and declared juvenile by Addl Chief Judicial Magistrate, Mainpuri. The two accused Popi and Shailendra were put on trial and acquitted. In these circumstances, Allahabad High Court held that the continuance of trial of Sanju would be abuse of - 7 - process of law. The aforesaid ratio would not be applicable to the facts of the instant case, as it would be too early to state that evidence which had come in case of other accused, who were put on trial and acquitted, would be the same in the instant case. 14. Thus, I am not inclined to quash prosecution of petitioner at threshold in a case u/s 302 & 364A I.P.C., as other accused who faced trials were acquitted. 15. As a result, this application is dismissed with the observations made above. Shashi. (Samarendra Pratap Singh,J.)