IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.2015 of 2008 MADAN SINGH, SON OF LATE GANGA SINGH, RESIDENT OF VILLAGE-ATHARI, P.S. RUNISAIDPUR, DISTRICT-SITAMARHI. ………………………………………………………………PETITIONER. Versus THE STATE OF BIHAR……………………………OPPOSITE PARTIES. ----------- For the Petitioner : Mr. Pushpendra Kumar Singh, Advocate. For the State : Mr. Jharkhandi Upadhyay, A.P.P. ---------- O R D E R Order dated 5.9.2007 passed by the learned Chief Judicial Magistrate, Sitamarhi, in Dumra P.S. Case No.71 of 2004 whereunder he has taken cognizance of offences under Sections 302, 201 and 120(B) I.P.C. against the petitioner is under challenge in this application under Section 482 Cr.P.C. at the behest of the petitioner whose name figures in column no.11 of the chargesheet. The prosecution case is based on the fardbeyan given at about 6.50 A.M. on 10.6.2004 by Dafadar Staya Narayan Singh, wherein he stated inter alia that earlier that morning on hearing hulla to the effect that the dead body of an unknown person was lying by the side of the National Highway he immediately rushed to the site and saw the dead body of an unknown person, aged about 55 years, with white unkempt beard and half the hair on his removed was lying there. He was wearing a red coloured langota and his white sandow ganji was lying by his side and at a short distance therefrom lay about - 2 - 100 gms. of ganja kept in a polythene bag. The dead body had marks around the neck, the left side of the face near the eye was bruised and swollen and blood was oozing from his testicles. Several persons had assembled to see the dead body none of whom could identity him. The informant was of the opinion that the unknown person had been killed elsewhere and his dead body had been thrown here. It appears that the dead body was subsequently identified to be that of one Ram Sawarath Singh of Village Athari. It also appears that one Arun Kumar Singh, the son of the deceased, filed an application before the police alleging the involvement of the petitioner in the said crime. The accusations were based on the statement of his two uncles, Jai Mangal Singh and Sheo Mangal Singh, who claimed to have seen their deceased brother in the company of the petitioner and others and it was believed that the petitioner and the others had killed Ram Sawarath. It further appears that the police after due investigation submitted a charge sheet under Sections 302, 201, 120(B) I.P.C. against the petitioner and final report against non-F.I.R. named accused Guddu Singh and Das. The submission on behalf of the petitioner is that admittedly there is no eye witness of the crime and notwithstanding the directions of the S.P. to the Investigating Officer to investigate the case as per directions contained in Report-II, the Investigating Officer had ignored the same and had submitted charge sheet. It was also submitted that the false implication of the petitioner was by way of an afterthought of the son of the deceased motivated by Shiv Mangal - 3 - Singh who was on litigating terms with the petitioner since 1977 over land related dispute. My attention was also sought to be drawn to the case diary, by way of alternate argument/suggestion, that the petitioner was falsely implicated at the instance of Prof. Shiv Mangal Singh who allegedly had forcibly dispossessed the petitioner from his lands and a litigation in this regard was pending which had been considered favourably by the Sessions Judge, Sitamarhi, while considering the petitioner’s prayer for anticipatory bail. Reference was also made to the statement of eight witnesses recorded under Section 164 Cr.P.C. five of whom did not support the accusations and the remaining three were hearsay. The learned counsel also drew my attention to the supplementary affidavit filed subsequently by the son of the petitioner wherein it was stated that the son of the deceased had filed a compromise petition before the Chief Judicial Magistrate, Sitamarhi, to the effect that all confusions had been removed and the disputes had been settled and that he did not wish to proceed with the case. There was also reference therein to the statement of three witnesses, including the son of the deceased, recorded under Section 164 Cr.P.C., all of whom had stated that they had heard about the occurrence and were not eye witnesses to the occurrence. Notwithstanding the skillful and plaintive submissions advanced by the learned counsel for the petitioner, I regrettably express my inability to agree with him for the reasons hereinafter mentioned: - 4 - 1). The question of enmity is the defence of the petitioner which cannot be considered at the time of taking cognizance. The court on perusal of the materials available before him is only to see whether a prima facie case is made out for proceeding against the accused. 2). Supervisionary notes of the S.P. being a confidential and internal communication between the supervising authority and the investigating officer cannot be looked into to draw any inference. 3). No compounding of offences or compromise is permissible in offences of heinous nature. 4). The court having taken cognizance cannot recall the order on the basis of the compromise petition purportedly filed by the son of the deceased. Due regard being had to the facts and the circumstances of the case and the discussions made above, I find no merit in this application which is dismissed. The petitioner, however, will be at liberty to raise all these issues at the stage of framing of charge. (Abhijit Sinha,J) Patna High Court, Patna. Dated: The 17th of July, 2009. Pradeep Srivastava/A.F.R.