IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.42233 of 2009 Metho Yadav Versus State Of Bihar & Ors ---------------- For the petitioner: Mr Akhileshwar Pd. Singh, Sr. Advocate For O.P.Nos. 2 and 3 : Mr Binod Kumar, Advocate With Mr N.K. Agarwal, Sr. Advocate For the State : Mr S.C. Mishra, A.P.P. ------------- 08 29.11.2011 Heard learned counsel for the petitioner, learned counsel for opposite party nos. 2 and 3 as well as learned Addl. Public Prosecutor for the State on the point of admission and in my view, this petition can be disposed off at the admission stage itself. Petitioner, namely, Metho Yadav while invoking extra ordinary jurisdiction of this court vested under section 482 of the Cr.P.C, has prayed for quashing the order dated 6.8.2009 passed by Sri S.K.Lal, learned Sessions Judge, Begusarai in Cr. Revision no.93/2009 as well as order dated 20.1.2009 passed by Sri D.S. Singh, learned Judicial Magistrate, Begusarai in Cheriya Bariyarpur P.S. Case no.113/2002 giving rise to GR no. 2754/2002. The brief fact giving rise to file this quashing application is that the petitioner, namely, Metho Yadav filed Complaint case no. 1500/2002 in the court of learned Chief Judicial Magistrate, Begusarai, who, in turn, 2 sent the aforesaid complaint case to Cheriya Bariyarpur police station for institution of FIR and investigation and accordingly, Cheriya Bariyarpur P.S. Case no.113/2002 under sections 149 and 302 of the IPC was registered against Jagdish Mahto, Ramashish Mahto, Suro Mahto, Manoj Mahto, Kunjo Mahto and Bharosi Mahto. The case of the petitioner, as emerged out from his complaint petition, is that on 1.11.2002 at about 5 P.M. while his brother, namely, Dhanik Yadav was at his house , the above named accused persons along with Officer Incharge of Cheriya Bariyarpur police station, namely, Harindra Singh and other police officials came there and took his brother to Cheriya Bariyarpur police station assaulting and abusing him and on account of the aforesaid illegal act of the police officials and the above stated co-accused persons, the villagers and witnesses became agitated and they as well as the petitioner came at the police station and heard the sound of crying of his brother and in the meantime, he heard that someone was telling that his brother was no more. The villagers surrounded the police station and also blocked the road. The petitioner tried to lodge the case in respect of death 3 of his brother but his case was not registered and after that he gave telephonic information to the Superintendent of Police, Begusarai but that telephonic information also did not bring any result. Lastly, he filed the above stated complaint in the court of the Chief Judicial Magistrate, Begusarai. It is gathered from the record that after investigation, police submitted charge sheet no. 52/2004 against opposite party nos. 2 and 3 for the offence punishable under section 385/34 of the IPC. The opposite party nos. 2 and 3 were put on trial and they were charged for the offence punishable under section 385/34 of the IPC. In course of trial, altogether 11 prosecution witnesses were examined and during the pendency of the trial a petition under section 323 of the Cr.P.C was filed on behalf of the informant on 1.12.2008 praying therein to commit the case to the court of sessions. The learned Judicial Magistrate vide order dated 20.1.2009 rejected the aforesaid petition holding that no case under section 302 of the IPC is made out. Against the impugned order dated 20.1.2009 passed by the Judicial Magistrate, Begusarai, petitioner preferred Cr. Revision no. 93/2009 before the learned Sessions 4 Judge, Begusarai who dismissed the aforesaid Cr. Revision no. 93/2009 vide order dated 6.8.2009 holding that there is nothing on record to commit the case to the court of sessions as the prosecution evidence is not reliable to come on the conclusion that the case is exclusively triable by the court of sessions. Feeling aggrieved by both the above stated impugned orders, petitioner has come to this court and challenged both the aforesaid impugned orders in this quashing petition. Learned counsel appearing for the petitioner submits that it is a case of custodial death and as per prosecution case deceased was taken into custody by opposite party nos. 2 and 3 as well as other police officials and subsequently, he was kept in Hajat. It is further contended by him that when the informant and other witnesses reached at the concerned police station, they heard cry of the deceased and subsequently, his dead body was found in the police station but later on, dead body was taken to hospital where post mortem of the deceased was done. So, it is clear cut case of murder and witnesses have consistently stated the aforesaid story in course of trial and, therefore, the learned trial court 5 ought to have committed the case to the court of sessions under section 323 of the Cr.P.C. On the other hand, learned counsel appearing for opposite party nos. 2 and 3 refuted the aforesaid submissions and submitted that in course of trial, witnesses made contradictory statements and some of the witnesses stated that deceased died in hospital whereas some of the witnesses stated that they had seen the dead body near block so, it is clear that the deceased was never died in the custody of the police and, therefore, neither it is a case of murder nor custodial death. Learned counsel for opposite party nos. 2 and 3 took me to the depositions of the aforesaid witnesses. Learned Addl. Public Prosecutor appearing for the State echoed the submissions of learned counsel for opposite party nos. 2 and 3. Having heard the contentions of both the parties I have gone through the record. This fact has not been denied by learned counsel for opposite party nos. 2 and 3 that before death, the deceased was taken to police station by the police officials including opposite party nos. 2 and 3. Learned counsel for 6 opposite party nos. 2 and 3 tried to convince me about this fact that it is not case of custodial death because the deceased died in the hospital and witnesses have made contradictory statements on the above stated point but I am not at all convinced with his submissions because the death of the deceased is an admitted position and prior to his death he was taken into custody and was brought to the police station by the police officials including opposite parties no. 2 and 3. Admittedly, petitioner had made simple prayer before the trial court for committing the case to the court of sessions because witnesses, in course of the trial, have stated that the deceased died on account of assault made by the police in the premises of the police station while he was in police custody. Here, I would like to refer section 323 of the Cr. P.C which says that if, in any inquiry into an offence or a trial before a Magistrate, it appears to him at any stage of the proceedings before signing judgment that the case is one which ought to be tried by to the Court of session, he shall commit it to that Court under the provisions hereinbefore contained (and thereupon the provisions of chapter XVII shall 7 apply to the commitment so made). From bare perusal of the aforesaid section, it is quite clear that mere opinion of a Magistrate is sufficient for committing the case to the court of session under section 323 of the Cr.P.C and it is not necessary that the Magistrate should satisfy himself that the case is exclusively triable by the court of session and therefore, even if case is not exclusively triable by the court of session and if it appears to a Magistrate that the case should be tried by the court of session, Magistrate is duty- bound to commit the case to the court of session. In the present case, it would appear from the impugned orders that the learned Magistrate as well as learned Sessions Judge rejected the prayer of the petitioner only on the ground that witnesses made contradictory statements in respect of the place of death of the deceased and furthermore, the post mortem report of the deceased does not support the allegation of murder but, in my view, the aforesaid fact requires deeper investigation which is only possible after completion of trial and, therefore, it was not proper stage for the learned Magistrate as well as learned Sessions Judge to give the aforesaid findings and to reject the 8 prayer of the informant solely on the ground of contradictory statements made by the witnesses as well as on the basis of finding given in the post mortem report. No doubt, second revision in the garb of petition under section 482 of the Cr. P.C in certain cases is not permissible in law but simultaneously, it is also a settled principle of law that if the court comes to this conclusion that exercise of power vested under section 482 of the Cr.P.C is essential to prevent abuse of the process of the court and to secure ends of justice, this court has got ample power to pass an appropriate order even if the Sessions Judge has rejected the revision petition. In view of the aforesaid discussions, I have no option but to quash the impugned orders dated 6.8.2009 passed by learned Sessions Judge, Begusarai in Cr. Revision no.93/2009 as well as order dated 20.1.2009 passed by the Judicial Magistrate, Begusarai in Cheriya Bariyarpur P.S. Case no.113/2002. Accordingly, both the above stated impugned orders dated 6.8.2009 and 20.1.2009 passed by the aforesaid courts below are, hereby, quashed and the learned 9 Magistrate, Begusarai is directed to consider the prayer of the petitioner and pass appropriate order afresh on petition dated 1.12.2008 keeping in mind the findings given in this order. Shahid ( Hemant Kumar Srivastava,J)