IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.51441 of 2007 1. Dadan Singh @ Dadan Pahalwan ,Son of Late Lal Chand, R/O Jangal Bazar Road, P.S. Dumraon, Distt- Buxar 2. Kumari Usha Yadav @ Usha Singh @ Usha Singh Yadav W/O Dadan Singh @ Dadan Pahalwan R/O Jangal Bazar Road, P.S. Dumraon, Distt- Buxar ----------------- Petitioners Versus THE STATE OF BIHAR ---------- Opp.Party ----------- For the petitioners : M/S Dr.S.K.Verma, Sanjay Sinha, Advocates For the State : Mr. Surajbansh Rai, A.P.P. ----------- O R D E R The two petitioners , who are not named in the F.I.R. but whose names cropped up subsequently in course of investigation, have filed this application for the quashing of the order dated 27.10.2007 passed by the learned Chief Judicial Magistrate, Buxar, whereby he has taken cognizance against the petitioners under Section 188, 384, 420 and 120B I.P.C. , as also Sections 25(1-B)a , 26,35,29 and 30 of the Arms Act in connection with Koransarai P.S. Case No.42 of 2006, G.R. No.1847 of 2006. The aforesaid case was initially registered under Section 188 I.P.C. and Sections 25 (1-B) a , 26 and 35 of the Arms Act against the five persons named in the F.I.R. on the basis of the self- statement of Sub Divisional Police Officer of Dumraon, Sunil Kumar, given at 8.30 A.M. on 12.11.2006 . According to the informant while he along with the Sub Divisional Officer, Dumraon and a police party were moving around Dumraon, Subdivision in order to look - 2 - after the law and order situation in the area, where Section 144 Cr.P.C. had been promulgated due to ensuing bye-poll of the Panchyat. They suddenly spotted a grey coloured Scorpio, bearing Registration No.DL-9CG-9596 with dark window panes moving towards Koransarai and as the informant and his men tried to stop the vehicle, it tried to speed away but was stopped on chase near Koransarai Police Station with the help of the police personnel of that Police Station. It is alleged that on search the driver along with a police personnel was found sitting in the front seat whereas a police man with two others were found sitting in the back seat, who on being questioned disclosed their identity as security guards provided by the Government to M.L.A., Dadan Yadav. Two Government Carbines and 9 M.M. bullets were also recovered from the two bodyguards, whereas two other rifles along with some bullets were recovered from the possession of the two persons sitting in the back seat, who on demand failed to show any documents authorizing them to possess the arms. Two Nokia Mobile phones and one rifle licence and about 500 pieces of hand-bills of Prajatantrik Lok Dal were also recovered and from the dash-board of the vehicle , a Smart Card of the vehicle was recovered disclosing the name of Satish Chandra of New Delhi as the owner of the vehicle. All the materials recovered except the Carbines and magazines thereof purportedly issued by the Buxar Police Lines were seized under a seizure list in presence of the Sub Divisional Officer and Anchal Adhikari , Buxar and a copy each thereof was handed over to the accused persons, whereas the government arms - 3 - and ammunitions were handed over to the police. It appears that the name of the petitioners appeared in the case diary for the first time on 15.3.2007 when the Investigating Officer received a requisition for the two rifles recovered indicating that they belonged to Usha Singh, petitioner no.2, the wife of Dadan Singh, who was in possession of valid licence for the same. After due investigation, chargesheets were submitted against the F.I.R. named accused and investigation regarding the seized arms was kept pending. Subsequently , after further enquiry the Investigating Officer submitted a supplementary chargesheet against the two petitioners under Sections 188,384, 420 and 120B I.P.C. and 25 (1-B)a , 26,35 ,39 and 30 of the Arms Act and on the basis thereof cognizance was taken which is the impugned order. It has been submitted on behalf of the petitioners that admittedly, they are not named in the F.I.R. and it was presumably because of the presence of the vehicle in the area, where Section 144 Cr.P.C. was in force, with the men and arms of the petitioners that Section 188 I.P.C. has been applied to them notwithstanding the fact that they were not physically present in the vehicle when it was apprehended .It is also submitted that the F.I.R. does not disclose whether the area wherefrom the vehicle had been seized was within the prohibited area where Section 144Cr.P.C. was in force. On this count, it was submitted that Section 188 I.P.C. would not apply to the petitioners. It was next submitted that it would appear from the - 4 - statements of vehicle owner, Satish Chandra , recorded under Section 164 Cr.P.C. that no force or inducement had been made for obtaining the vehicle by the petitioners , and as such, accusations of an offence under Section 384 or 420 I.P.C. cannot be said to have been made out against the petitioners. It was next submitted that even the provisions of the Arms Act would not apply against the petitioners since petitioner no.2 had valid licence for the same and were not being used in contravention of any of the Sections of the Arms Act. In this connection, it was submitted that one of the co-accused Sanjay, an employee of the petitioners, was carrying a written permission from petitioner no.2 for bringing the said rifles to her for the purposes of her protection on her way back and the said letter of permission was not taken into consideration by the Investigating Officer. It was also submitted that although the arms and ammunitions had been seized but the same were neither sealed as per requirement in different packets nor were the signatures of the persons, from whom the arms were seized, obtained on the seizure list. It was next submitted that no weightage can be given to the criminal antecedent of petitioner no.1 as he had already been acquitted in all the aforementioned cases and investigation was pending in one case. The learned A.P.P. appearing on behalf of the State was not in position to justify the police action taken against the petitioners or even the charges heaped on the petitioners or even the order taking - 5 - cognizance in the circumstances stated above. It would appear from the statement of the vehicle owner , Satish Chandra, recorded under Section 164 Cr.P.C., that he had purchased the Scropio vehicle on 16.5.2005 and had got acquainted with Dadan Yadav some three years back courtesy his neighbour Shriniwas Yadav and on the occasion of the ensuing Assembly Election to the Bihar Assembly ,Shriniwas Yadav had requisitioned the vehicle for Dadan Yadav and it was Shriniwas who had taken the vehicle to Dadan on 25.5.2005. It would also appear that after the election was over, he had made several requests for the return of the vehicle but neither Shriniwas nor Dadan had returned the vehicle . In the meanwhile, his vehicle had been seized in the present case and when Dadan Yadav could not succeed in getting the vehicle released , he arrived in Bihar personally and got the car released but the same was not permitted to be taken away by Dadan. It would also appear from perusal of the seizure list that the arms and ammunitions seized from the private personnel were produced before the police along with their respective licences. It would also appear that none of the two petitioners were present in the vehicle when it was not seized nor were arms recovered from their possession and their names had been dragged in only to harass and vex them in view of the existing political rivalry. There appears sufficient force in the arguments advanced by the learned counsel for the petitioners which are not contradicted by the learned A.P.P. - 6 - Due regard being had to the facts and circumstances of the case, the accusatiosn against the petitioners do not appear to be supported by cogent reasons and their prosecution thereunder would amount to an abuse of the process of the court. In the aforesaid circumstances, the application is allowed and the impugned order so far as the petitioners are concerned, is hereby set aside. ( Abhijit Sinha, J ) Patna High Court,Patna Dated : the 7th August,2009 Nawal Kishore Singh/ A.F.R.