IN THE HIGH COURT OF JUDICATURE AT PATNA CR. REV. No.1401 of 2007 SANJEEV KUMAR SINGH …PETITIONER Versus 1. THE STATE OF BIHAR 2. BHOLA PRASAD SINGH 3. ARBIND KUMAR SINGH 4. AMIT KUMAR SINGH …OPPOSITE PARTIES For the Petitioners: Mr.Sanjeev Kumar No.1 For the State : Mr.Jharkhandi Upadhyay,APP For the o.ps. : Mr. Chandra Mohan Jha ----------- 06. 14.09.2010 Heard learned counsel for the petitioner, learned counsel for o.p.nos. 2 to 4 and learned counsel for the State. Petitioner is the informant. He is aggrieved by the order dated 23.12.2006, passed by learned addl. Sessions Judge, F.T.C.V, Saharsa in Cr. Revision No.66/05 which was allowed and the order dated 06.01.2005, passed by learned CJM, Saharsa in G.R. Case No. 385/04 was interfered with and modified. Brief backgrounds of the case may first be indicated. The petitioner lodged an FIR being Bakhtiarpur P.S. Case N.45/04 alleging therein that on 15.03.2004 at about 9.00 P.M. when he reached the Darwaza of one Dipu Singh, several co-accuseds persons, namely, Bhola Singh, Sanjiv Singh, Arbind Singh, Shailesh Singh, Amit Singh and 3-4 unknown person were found hiding there from before. Sanjiv Singh, Shailesh Singh and Arbind Singh were armed with country-made pistol, whereas Amit Kumar Singh and Bhola Singh were armed with Bhala. At the instigation of co- 2 acused Bhola Singh, accuseds Sanjiv Singh, Shailesh Singh and Arbind Singh started firing at the informant. One of the shots fired by co-accused Sanjiv Singh hit him on the right thigh whereafter he fell down on the ground. Co-accused Bhola Singh thereafter snatched away the wrist watch from the hand of the informant. Co-accused Shailesh Singh snatched away golden chain from the neck of the informant. Co-accused Arbind Kumar Singh took away cash of the informant. The police commenced investigation whereafter charge-sheet/final form was submitted and only co-accuseds Sanjiv Kumar Singh and Shailesh Singh were sent up for trial. Other three co-accuseds named in the FIR were, however, not sent up. Learned Magistrate perused the police papers attached with the charge-sheet, including the case diary, and came to the conclusion that materials available therein would justify order taking cognizance against all the accused persons named in the FIR under diverse section of the Penal Code including section 379 and 307/34 IPC. Such an order was passed by order dated 06.01.2005 (Annexure-2) Aggrieved by the aforesaid order, three accused persons (not sent up by the investigating authority) filed Cr. Rev. No.66/05 which was heard and allowed. While assailing the order, learned counsel for the petitioners submits that learned revisional court committed serious illegality in perusing the entire materials on record and coming to the conclusion that important witnesses had 3 not supported the prosecution case so far as the implication of the petitioners are concerned. Learned revisional court further fell in error in appreciating the contention of the petitioners that there existed grave animosity between both sides as a result of which false implication cannot be ruled out. Learned counsel submits that considering the scope of jurisdiction invoked by learned Magistrate the cognizance was taken after having found from perusal of the case diary that there existed a prima facie material against the accused persons(not sent up by the police). He refers to paragraph 3 of the order of the learned CJM which reads as under: “3. From the perusal of the case diary, I find that the informant Sanjeev Kumar Singh as stated in para no.-75 of the case diary that all the five accused persons were involved in the commission of the aforesaid crime. There is also the injury report on the case diary which shows the fire-arm injury to the informant and other witnesses vide para nos.8, 9 & 30 of the case diary. The witnesses have supported that all the five named accused of the F.I.R. were involved in the commission of the aforesaid crime. From the facts and circumstances of the case, I find that all the accused persons variously armed with deadly weapons including the fire-arms, made indiscriminate firings as a result of which, the informant sustained the pellet injury on the right thigh and I find that there is sufficient material for taking cognizance against all the five named accused persons of the F.I.R. for the offences u/ss 341, 324, 307, 504, 34 of the I.P.C. and 27 of the Arms Act. Accordingly, the cognizance is taken against all the five named accused of the F.I.R. under sections- 341,324,3007,504,34 IPC and 27 of the Arms Act.” Learned counsel for the petitioners relies on the following decisions/judgments: 4 1. Swil Ltd. Vs. The State of Delhi & Anr. (2001) 6 SCC 670. 2. Horil Sao Vs. The State of Bihar 2002 (1) PLJR 318 Learned counsel appearing on behalf of the opposite parties, on the other hand, heavily relied on paragraph 5 of the order of the revisional court which reads as under: “Perused the whole case record including the impugned order as well as the lower court case record and particularly the case-diary of this case. The police has charge-sheeted only against two accused persons, namely-Sanjeev Singh and Shailesh Singh, but found the case false against other 3 named accused persons(the petitioners). I have gone through the case diary of this case very carefully. In para-30 of the case diary, the statement of several hear-say witnesses have been recorded by the I.O., who have also named only Shailesh Singh and Sanjeev Singh. The statement of witness-Dashrath Singh has been recorded in para-11 of the case diary, who is a boundary witness of the P.O. and heard only one fire-arm shot and reached the P.O. first of all and saw the injured-informant, who has got 2 injuries of pellets on his right thigh. The witness is very important and also named only two charge-sheeted accused persons. In para- 25 the witness Bibhuti Singh, para-26-witness Ranjeet Singh, para-27-witness Ashok Kumar,para 28-another witness-Ashil Kumar(hearsay), para-51/71-witness Pawan Kumar, para-52/72- witness-Pappu Singh(hearsay), para-54/74-witness Rajeev Singh and para-55/75-witnesses Kartik Narain Singh have also completely supported the version of witness Dashrath Singh, who reached at the P.O. first of all. In para-49 of the C.D. injuries of the informant have been recorded, who sustained 2 pellet injuries on his right thigh, which corroborate the version of witness Dashrath Singh, who heard only one gun-shot at the time of occurrence. These 5 witnesses have also stated before the I.O. that there is grave enmity between the both the sides going on and series of cases are pending between them and both the sides used to implicate all the family members of each other in criminal cases. Several witnesses have supported that the petitioners were not present on the date occurrence in the village. In para- 43 of the case-diary the super-vision-note given by the Dy.S.P. has been mentioned, who has also found the same facts mentioned above” I have considered the submissions advanced on behalf of the parties. It is settled beyond cavil that in a matter arising out of police case, learned Magistrate is the final arbiter. Any opinion formed by the I.O. shall not be a guiding factor. Learned Magistrate while taking cognizance has to look to the materials collected in course of investigation in order to satisfy itself about the presence of a prima facie case against the accused persons either sent up or not sent up by the I.O. At the stage of taking cognizance, meticulous evaluation of materials on record has to be avoided. I have perused the reasonings assigned by learned magistrate in the order impugned, part of which has been reproduced hereinabove. He has perused the materials available in the case diary and has come to the conclusion that there is/are prima facie case against the accused persons. In my view, learned revisional court fell in error in concluding that although the FIR and some of the witnesses examined in course of investigation support the implication of the petitioners(not sent up by the police) but on a close scrutiny 6 it can be seen that important witnesses who were present at the time of occurrence, did not name the accuseds(o.p.nos.2 to 4 herein) and assigned a role to play. Learned revisional court has also held that witnesses who have supported the implication of the accuseds(o.p.nos.2 to 4) were hostile to them from before as there was admittedly bad blood prevailing between the parties. These considerations and evaluation of the material on record, in my view, vitiates the order of the learned revisional court considering the limited scope of the jurisdiction exercised at the stage of taking cognizance. I am thus satisfied that the order passed by learned revisional court is fit to be interfered with. Accordingly the application is allowed and order dated 23.12.2006 is quashed and set aside. hr ( Kishore K. Mandal )