IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.16428 of 2006 GOPAL PRASAD CHAURASIA @ GOPAL RAM & ANR Versus STATE OF BIHAR & ANR. ----------- For the petitioners : M/S Ram Balak Mahto, Sr.Adv. and Ajay, Advocate. For the State : Mr.Jharkhandi Upadhaya, A.P.P. For Opp.Party no.2: M/S Binit Kumar, and Ambarish Kumar Jha, Advocates. ________ O R D E R This application for quashing order dated 15.2.2006 passed in Rafiganj P.S. Case no.171 of 2005 by the learned Chief Judicial Magistrate, Aurangabad , whereby he had taken cognizance under Sections 409, 201 I.P.C. and 25 (1-b),26,35 of the Arms Act, was initially preferred by two of the three F.I.R. named accused. However, during the pendency of the case for Admission, petitioner no.1 Gopal Prasad Chaurasia @ Gopal Ram expired and on the basis of the reply to the counter affidavit annexing copy of death certificate being filed, the name of petitioner no.1 was deleted by order of this Court dated 5.8.2008 and the matter was heard. On the basis of a written report submitted by A.S.I. Dina Nath Singh, impleaded herein as Opp.Party no.2, to the Superintendent of Police, Aurangabad , the aforesaid Rafiganj P.S. Case was initially registered under Section 201 I.P.C. and the provisions of the Arms Act. It was alleged that at about 6 P.M. on 2.12.2005 he raided the shop of the petitioners and a bag was recovered therefrom which was brought to the Police Station and on opening the same two country-made pistols and five live cartridges were recovered from them which were - 2 - retained by the Officer Incharge. Later on after due investigation a chargesheet under Sections 409, 201 I.P.C. and the provisions of the Arms Act was submitted. It has been submitted on behalf of the petitioner that he is innocent and had committed no offence and had falsely been implicated in this case to wreak vengeance and take revenge in collusion with his agnates. It was further submitted that the malafide would be apparent from perusal of the F.I.R. which reveals that the application was filed before the Superintendent of Police on 2.12.2005 in respect of an occurrence which took place at 18.00 hours but the First Information Report appears to have been registered at 1.45 P.M. on 2.12.2005. It was also submitted that from perusal of the seizure list it would appear that the P.S. Case no. was mentioned therein and the same was prepared at 13.30 hours on 2.12.2005 and not when the arms and ammunitions were allegedly recovered at the Police Station upon opening of the bag. The learned counsel for the petitioner further submitted that an application was filed on 21.11.2005 by the full brother of petitioner no.1 ( deceased ) with regard to a dispute in between the parties , pursuant to which A.S.I. Krishna Nandan Mishra was asked to make investigation but the said application was kept by Shailendra Kumar, Officer Incharge and it was only on 1.12.2005 that Shailendra Kumar along with two police personnel had inspected the shop of the petitioner where allegedly the bag was recovered from the shop of the petitioner. It was further sought to be submitted with reference to the - 3 - written report of A.S.I. Dina Nath Singh that there was no allegation regarding the breach of trust and disappearance of evidence against the petitioner and, therefore, the penal provisions of Sections 409 and 201 I.P.C. could not apply to the petitioner. It has also been submitted that the petitioner has no criminal antecedent. A counter affidavit has been filed by Opp.Party no.2 wherein it has been submitted that pursuant to information of a quarrel having taken place in the shop of Gopal Prasad Chaurasia, the deponent along with other police officials had visited the shop and there detected a black bag kept in the shop. The said bag was brought to the Police Station and on opening the same, two country-made pistols and five live cartridges were found in it and these were retained by the Officer Incharge. The deponent further submitted that the Officer Incharge neither recorded the F.I.R. nor prepared the seizure list nor the petitioner Gopal Prasad Chaurasia and Munna Prasad Chaurasia who had been brought to the Police Station were arrested and allowed to go away by the Officer Incharge in late evening and without making any entry or arresting Gopal or Munna or preparing any seizure list or lodging any F.I.R. the Officer Incharge had gone home. He also did not instruct the petitioner or authorize him to make entry in the Police Register or lodge F.I.R. of the occurrence as also recovery of fire arms or arrest of Gopal Prasad Chaurasia and Munna Prasad Chaurasia in the evening or in the night of the day of occurrence or even thereafter. In this connection, it has been submitted that on the following day when the Superintendent of Police, Aurangabad and other senior police - 4 - officials were informed, Opp.Party no.2 submitted report to the Superintendent of Police and it was under his direction the case was registered. It has further been submitted that the Superintendent of Police arrived at the Police Station and inquired into the matter. Then that Officer Incharge produced the arms and ammunitions from his residence and a seizure –cum- production list was prepared by the Investigating Officer. It was also sought to be submitted that in course of investigation all the witnesses have supported the prosecution case and stated inter alia that the Officer Incharge Shailendra Kumar had gone with the police party to the shop of Gopal Prasad Chaurasia on 1.12.2005 at 6 P.M. and had found a black bag containing two country-made pistols and five live cartridges which were brought to the Police Station along with Gopal and Munna , but the Officer Incharge did not lodge any F.I.R. or prepare the seizure list but kept the black bag along with arms and ammunitions with him and allowed Gopal and Munna to go home. It also transpires during the investigation that Kishori Prasad had submitted a written report with the Officer Incharge on 21.11.2005 and due to partition dispute with brother Gopal Prasad Chaurasia; he had been threatened by him and Munna. However, the Officer Incharge kept the representation with himself, although he had deputed A.S.I. Krishna Nandan Mishra to investigate the matter, and as such, no enquiry and follow up action could be taken in the matter. Having perused all the materials on record and submissions - 5 - advanced by the learned counsels for the petitioner as also the Opp.Party no.2 it transpires that the petitioner was somehow in league with the Officer In charge , Rafiganj Police Station who had found ways and means to save the deceased Gopal Prasad Chaurasia and Munna Prasad Chaurasia . It further transpires that it was due to inaction of the Officer Incharge that the seizure list was prepared on the following day on arrival of the Superintendent of Police and inquired into the matter. Apparently the alleged enmity with his brother Kishori Prasad is the defence of the petitioner which cannot be looked into at this stage and the petitioner shall be at liberty to raise all these issues at the time of framing of the charge. However, I find no merit so as to interfere with the impugned order at the present moment since it involves the looking into the facts and figures and the defence of the petitioner. Due regard being had to the facts and circumstances of the case while granting liberty to the petitioner to raise all these issues at the time of framing of charge I do not find any reason to interfere with the impugned order. Accordingly, this application is disposed of with the aforesaid liberty granted to the petitioner. ( Abhijit Sinha, J ) Patna High Court,Patna Dated : the 8th August,2008 Nawal Kishore Singh/A.F.R.