IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.15532 of 2009 Tarkeshwar Singh, son of Sri Ram Bahadur Singh, Resident of village- Charihara, P.S. Mashrakh, District Saran at Chapra Versus THE STATE OF BIHAR ----------- 06/ 19.08.2009 Heard learned counsel for the petitioner, the State and the Informant. 2. Petitioner is apprehending his arrest in connection with Mashrakh (Panapur) P.S. Case No. 09 of 1996 dated 11.1.1996 registered for the offence under Sections 307/364 of the Indian Penal code and Section 27 of the Arms Act. Section 302 of the Indian Penal Code was also added subsequently. 3. Earlier attempt of the petitioner for grant of bail in the event of arrest in the instant case was refused by another Bench of this Court under orders dated 2.3.1998, passed in Cr. Misc. No. 1779 of 1998, Annexure-1 to this application. When the aforesaid order dated 2.3.1998, Annexure-1 was passed, the investigation against the petitioner remained pending and ultimately final form was submitted on 28.2.2003 not recommending the petitioner for trial. Final form is contained in Annexure-4 to this application. After submission of the final form, petitioner again renewed his prayer for grant of bail in the event of arrest, vide Cr. Misc. No. 12626 of 2008, which was permitted to be withdrawn under orders dated 3.6.2008, Annexure-1/1, as further proceeding in the court below remained stayed in the light of the orders dated 26.2.2008, passed in Cr. 2 Misc. No. 57855 of 2007, Annexure-11 to the supplementary affidavit. Even earlier further proceeding in the court below remained stayed in the light of the orders dated 25.3.1998, passed in Cr. Misc. No. 6124 of 1998, Annexure-7. 4. Learned counsel for the petitioner submitted that as the proceeding in the court below remained stayed under interim order passed by this Court dated 25.3.1998, Annexure-7 and 26.2.2008, Annexure-11, petitioner could not appear in the court below after his prayer for grant of bail in the event of arrest was rejected under order dated 2.3.1998, Annexure-1 on account of the pendency of the two Cr. Misc. applications in which interim orders were passed staying the proceeding in the court below . Now when the two Cr. Misc. applications have been dismissed under order dated 1.2.2007, Annexure-A and 1.4.2009, Annexure-C, petitioner has filed the present application renewing the same prayer which was permitted to be withdrawn earlier on 3.6.2008, Annexure-1/1 on account of the operation of the stay order dated 26.2.2008,Annexure-11. 5. Counsel for the informant has opposed the prayer with reference to the observations made by this Court under orders dated 1.4.2009, passed in Cr. Misc. No. 57855 of 2007, Annexure-C to the counter affidavit, which is quoted below for ready reference: “Peculiar are the ways of the Police. A crime is committed. The petitioner is a named accused along with certain others. The transaction is one. The Police investigates. It is satisfied that some of the named co-accused has committed the offence. The 3 commencement of the investigation is based on F.I.R. of an eye witness. Despite being satisfied of the prima facie truthfulness of the allegation, charge sheet is submitted against one person only while it is kept pending for further investigation against others named as accused, as distinct from unnamed accused which may require finding out the other actors involved. This Court would presume that once an investigation has commenced the Police shall carry on investigation with regard to all of the named accused and if it finds materials against one of the accused and submits charge sheet against him, surely there has to be materials against other accused. Section 173 of the Cr.P.C. does not visualize any police report of the kind invented by the Police by submitting partial police reports. This court has no hesitation in holding that often, the police deliberately resort to this procedure during investigation only with the purpose to reflect attention and provide advantage to an accused. The impression given by a partial charge sheet is that the police is seriously investigating. An accused intended to be shielded is kept in the shadow of further investigation in a partial charge sheet. When the heat of the crime and the out cry of the society subsides comes up final report not sending up the favoured accused for trial. This Court has no hesitation in holding that when the Magistrate took cognizance on 10.5.1996 he examined the case diary properly. He refers to paragraph 35, 36, 37, 43 and 56 to reflect his satisfaction to take cognizance against the petitioner also, notwithstanding the claim of the police that investigation against the petitioner was still pending. Obviously the Magistrate was not satisfied with the justification of the police that investigation against the petitioner was still pending. If the Magistrate had the power to differ with the police report and take cognizance which he did, any subsequent final report not sending up the petitioner for trial, to this Court, is inconsequential. The nature of the allegations against the petitioner, the informant being an eye witness, the application challenging the order of cognizance having been already rejected, the petitioner appears to have resorted to every possible recourse open to him to stall the trial, he has succeeded for 13 years, it is not time for him to acknowledge the supremacy of law.” 4 And with reference to the said observation, it is submitted that the petitioner being the named accused in the F.I.R. and allegation being that of the kidnapping as also carriage of the victim on the motorcycle of the co-accused, should not be admitted to the privilege of bail in the event of arrest. 6. True it is that the allegations as set out in the F.I.R. are serious in nature, but the fact remains that the police having investigated the allegation did not recommend the petitioner for trial and the proceeding in the court below remained stayed for quite some time under interim orders of this Court, which on one occasion was also approved by the apex court under order dated 13.9.2002. In the circumstances, at this stage it is difficult for me to hold that it was only on account of the laches or overdoing of the petitioner that the proceedings in the court below were held up. From the orders referred to above, which have been annexed with the petition, counter or the rejoinder affidavit, it is evident that in two separate Cr. Misc. applications filed at two different stages, the proceedings of the instant case in the court below remained stayed. In the circumstances, I am of the view that petitioner on his own cannot be held to be responsible for delaying the proceeding in the court below. 7. Accordingly, I direct the petitioner above named to surrender in the court below within four weeks from the date of receipt of this order in the court below and thereafter he be 5 admitted to the privilege of bail on furnishing bail bond of Rs. 5,000/- (Rs. Five thousand only) with two sureties of the like amount each to the satisfaction of the Chief Judicial Magistrate, Saran at Chapra in connection with U.T. No. 356 of 2007, arising out of Mashrakh (Panapur) P.S. Case No. 09 of 1996, subject to the conditions, as laid down under Section 438(2) of the Cr.P.C. Having obtained bail, he must appear on each and every date in the trial and the trial court is directed to proceed with the trial and conclude the same as early as possible, in any case within six months from the date of commitment. Learned C.J.M. should commit the case for trial forthwith. Informant is also directed to produce his private witnesses, who have been named in the charge sheet on the date fixed in the trial. The Superintendent of Police, Saran, Chapra should ensure production of the official witnesses so that the trial is concluded within the time indicated in this order. If the trial is delayed on account of any reason attributable to the petitioner, the court below shall be at liberty to cancel his bail bonds. 8. Let this order be communicated to the court below through fax on payment of usual charges by the petitioner. Arjun/ ( V.N. Sinha, J.)