IN THE HIGH COURT OF JUDICATURE AT PATNA CR. W.J.C. NO.640 OF 2008 LALDEO YADAV, SON OF LATE SUDESHWAR YADAV, RESIDENT OF VILLAGE RAMPUR, POLICE STATION GOH, DISTRICT AURANGABAD…………………………….PETITIONER VERSUS 1. THE STATE OF BIHAR. 2. THE DIRECTOR GENERAL OF POLICE, PATNA, BIHAR 3. THE ADDITIONAL DIRECTOR GENERAL OF POLICE, BIHAR, PATNA 4. THE INSPECTOR GENERAL OF POLICE, PATNA ZONE, PATNA, BIHAR 5. THE DY. INSPECTOR GENERAL OF POLICE, CRIME INVESTIGATION DEPARTMENT, BIHAR, PATNA 6. THE DY. INSPECTOR GENERAL OF POLICE, MAGADH RANGE, GAYA 7. THE SUPERINTENDENT OF POLICE, AURANGABAD. 8. THE DEPUTY SUPERINTENDENT OF POLICE, DAUDNAGAR, AURANGABAD 9. THE OFFICER INCHARGE, GOH POLICE STATION, GOH, AURANGABAD……………………………….……….RESPONDENTS WITH CR.MISC. NO.50737 OF 2008 RAN VIJAY SINGH @ RAN VIJAY KUMAR, SON OF LATE RAMDAS PRASAD SINGH, RESIDENT OF VILLAGE BANDAYA, P.S. GOH IN THE DISTRICT OF AURANABAD……………………………………………… ………………..PETITIONER VERSUS 1. THE STATE OF BIHAR 2. LALDEO YADAV, SON OF NOT KNOWN RESIDENT OF VILLAGE RAMPUR, P.S. GOH, DISTRICT AURANGABD……………OPPOSITE PARTY ---------- (IN CR. W.J.C. NO.640/2008) FOR THE PETITIONER: MR. SIYA RAM SHAHI, ADVOCATE FOR RESPONDENTS : M/S RAJENDRA PD. SINGH & RAMAKANT SHARMA, SR. ADVOCATES WITH M/S NITYANAND SHRAMA, ROHIT MISHRA & MANOJ KUMAR, ADVOCATES FOR THE STATE : MR.YOGENDRA PRASAD SINHA, ADDL.A.G. NO.5 (IN CR. MISC. NO.50737/2008) FOR THE PETITIONER: MR. SURENDRA SINGH, SR. ADVOCATE WITH M/S NITYANAND SHRAMA, ROHIT MISHRA & MANOJ KUMAR,ADVOCATES FOR THE STATE : MR. D.K. SINHA, A.P.P. FOR OPP.PARTY NO.2: MR. SIYA RAM SHAHI, ADVOCATE - 2 - P R E S E N T HON’BLE MR. JUSTICE JAYANANDAN SINGH O R D E R Jayanandan Singh, J. The two cases are somewhat connected with each other and, therefore, they have been taken up together. 2. There was an incident of firing on 03.02.2005 which was the polling day of General Elections for the Assembly. In the firing, one Brij Nandan Kumar received gun shot injury in the stomach. He was taken to Primary Health Centre, Goh for treatment. On information, one A.S.I. of Goh Police Station arrived there and he recorded his statement in which he alleged that petitioner of the second case had fired from a gun in his hand which had hit him in the stomach. This disclosure constituted a cognizable offence. Accordingly, on that statement an F.I.R. was drawn and a case, namely, Goh P.S. Case No.08 of 2005, was registered under Section 307 and other allied sections of the Indian Penal Code. However, the said injured died on the same day. Therefore, Section 302 of the I.P.C. was also added to the case. It appears that, prior to institution of said Goh P.S. Case No.08 of 2005, a case was registered on the same day on the statement of the - 3 - petitioner of the second case, which was numbered as Ghoh P.S. Case No.07 of 2005. Date, place and time of the occurrence in this F.I.R. were the same. In this F.I.R., petitioner of the second case, who was the informant, disclosed that firing was resorted to by some persons with intention to kill him. As such, under the protection of his body guards, he turned the vehicle and left the place. Nobody was named in this F.I.R. However, since the facts disclosed a cognizable offence committed by unknown persons, the same was also registered under Section 307 and other allied sections of the Indian Penal Code against unknown. Investigation of both the cases proceeded. 3. Without going into unnecessary details of the case as appearing in the pleadings, it is suffice to notice that in Goh P.S. Case No.08 of 2005 charge sheet was submitted against the petitioner of the second case. In Goh P.S. case No.07 of 2005, final report was submitted in which case was found true but without any clue in respect of the accused persons, who committed crime. Subsequently, it appears that, since no clue was found in respect of the accused persons who had committed the crime in respect of Goh P.S. - 4 - Case No.07 of 2005, the informant of the case, i.e. petitioner of the second case, filed a petition in Court for further investigation in the case. The same was allowed and further investigation was held in connection with Goh P.S. Case No.07 of 2005. During further investigation, certain new materials surfaced. In the light of those materials, a petition was filed by the Superintendent of Police before the concerned court, in connection with Goh P.S. Case no.08 of 2005, to permit the police to hold further investigation in this case also, which was allowed. Accordingly, further investigation was held and new materials came to show that the prosecution story, as made out in the F.I.R. of Goh P.S. Case No.08 of 2005, was improbable so far as involvement of the accused of the case was concerned. On completion, report was submitted in Court with new materials. However, no orders were passed by the learned Magistrate on the said further report of the police and on the basis of earlier report, cognizance was taken and case was committed to the Court of Sessions for trial. Since materials collected during further investigation ruled out complicity of the accused - 5 - i.e. petitioner of the second case in the crime, a petition was filed for his discharge before the trial court. The said petition having been dismissed, he has preferred Cr. Misc. No.50737 of 2008 i.e. the second case herein. The informant of Goh P.S. Case No.08 of 2005 having died, his father has filed the present writ application, i.e. first case herein, against the order of the learned Chief Judicial Magistrate, Aurangabad dated 19.03.2008 by which, on the petition of the S.P., he allowed further investigation in Goh P.S. Case No.08 of 2005. 4. For the purpose of hearing of the cases, second case, i.e. Cr. Misc. No.50737 of 2008, was taken up first as Sri Surendra Singh learned senior counsel for the petitioner was appearing in the case. He submitted that during further investigation ample materials had been collected which clearly ruled out any possibility of the petitioner having fired upon the deceased in the manner alleged. He referred to the report of the Assistant Director, Forensic Science Laboratory, Patna (Annexure-8 of the criminal miscellaneous application). He also referred to the statements of the witnesses and the medical - 6 - evidence collected during further investigation, as well as opinion of the Superior authorities of the police, who supervised the case, to show that they all consistently establish that it was totally impossible for the deceased to have sustained injury in the manner, he has alleged in the F.I.R. at the hands of the accused (petitioner of the second case). He submitted that these materials made the prosecution story, as made out in the F.I.R., totally absurd and inherently improbable. Since inherent improbability of the prosecution case has also been considered as one of the grounds for interference by this Court in the celebrated judgment of the Apex Court in the case of State of Haryana Versus Bhajan Lal (reported in A.I.R. 1992 Supreme Court 604), this Court will be well within its jurisdiction to allow his application under Section 482 of the Cr.P.C. and to quash the prosecution. He referred to certain judgments of the Hon’ble Supreme Court to contend that, in the event of contradiction between medical evidence and ocular evidence, the medical evidence should be relied upon. However, on a query from this Court, he fairly accepted that those judgments were rendered by the Hon’ble - 7 - Supreme Court in appeals preferred before the court against the judgment of conviction/acquittal. This Court put a pointed question to Mr. Singh as to whether the same yardstick and the same consideration can be made in an application under Section 482 of the Cr. P.C. by this Court in the cases in which trial is pending. To this, he fairly accepted that consideration of this Court under Section 482 of the Cr.P.C. is very narrow and interference in the cases where trial is pending and evidence and materials collected during investigation are yet to be tested and examined for their veracity, this Court will not be justified to interfere in exercise of powers under Section 482 of Cr.P.C. on the basis of such materials. However, glaringly they may establish the innocence of accused. 5. In the circumstances, he made alternative argument that, since admittedly both the cases arise out of the same incident and the deceased is the same, in the ends of justice, it will be appropriate that both the cases be tried and heard together by the same court side by side. This submission of Mr. Singh is quite reasonable. 6. Learned counsel appearing in the - 8 - criminal writ application also fairly accepted that the question of power of the learned Magistrate to direct further investigation, as raised in the writ application, has now become academic in view of the developments in the case. On the other hand, he agrees with the prayer of Mr. Singh that, in the ends of justice, both the cases should be tried and heard together by the same court and at the same time. 7. However, it has been pointed out that the case pertaining to Goh P.S. Case No.07 of 2005 is still pending for commitment, as the named accused has not appeared in the case so far due to which it is not possible for both the cases to be tried and heard together. 8. In the circumstances, this Court feels it proper to direct the learned Chief Judicial Magistrate, Aurangabad, where Goh P.S. Case no.07 of 2005 is pending for commitment, to consider exercise of power under Section 299 of the Code of Criminal Procedure, in case the accused does not appear or is produced within a reasonable time for commitment. In any case, he will make all efforts to commit the case to the Court of Session for trial at an early date, after - 9 - exhausting all steps for appearance of the accused. After the Goh P.S. Case No.07 of 2005 is also committed to the Court of Session for trial, the learned Sessions Judge, Aurangabad is directed to try them himself together or assign trial of both cases, i.e. Goh P.S. Case No.07 of 2005 and Goh P.S. Case no.08 of 2005, to any court of competent jurisdiction with request to proceed with the trial of both the cases together and hold the proceedings side by side and complete the same. This Court is informed that the petitioner of the criminal miscellaneous application is a sitting M.L.A. and is in jail since last about three years, this Court directs that the trial should proceed with most expedition and all endeavours should be made to conclude the trial within one year from the date of commitment of Goh P.S. Case No.07 of 2005. 9. With the above observations and directions, both the cases are disposed of. 10. This Court appreciates the fair stand taken by learned counsels for the parties in the ends of justice. Patna High Court, Patna The 11th March, 2010. N.A.F.R. (B.T.) (Jayanandan Singh, J.)