IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.53242 of 2006 SITA RAM SAH, SON OF BAIJU SAH, RESIDENT OF VILLAGE BARHARAGANJ, POLICE STATION PADRAUNA, DISTRICT- KUSHI NAGAR (U.P.)……………………………………..PETITIONER. Versus 1. THE STATE OF BIHAR. 2. MD. NURAIN, SON OF MD. SHAMSUL, RESIDENT OF VILLAGE BAGAHA, DISTRICT-WEST CHAMPARAN. …………………………………………………OPPOSITE PARTIES. ----------- For the Petitioner : Mr. Jaimul Abedin, Advocate. For the State : Mr. Nawal Kishore Prasad, A.P.P. For O.P. No.2 : M/s. Rakesh Kumar and Aditya Narain Singh, Advocates. ----------- O R D E R The sole F.I.R. named accused of Bagaha P.S. Case No.138 of 2005 has prayed for the quashing of the entire criminal proceedings arising out of the said police case including the order dated 28.4.2006 passed therein by the learned Additional Chief Judicial Magistrate, Bagaha, whereby he has taken cognizance under Sections 406, 420, 328, 379 and 302 I.P.C. The informant, one Md. Nurain, gave his fardbeyan at 4.30 P.M. on 14.6.2005 alleging therein that an unknown person had approached him at his home on 5.6.2005 for hiring his bullock cart for carrying certain goods from his village to Gudri Bazar in Bagaha for purposes of selling and the hire charges were fixed as Rs.300/-. It is said that as per the agreement the hirer came to his house in the morning of the following day to take the informant to his village and - 2 - on the way when they reached a place in between village Mathaira and Pipra they stopped for food and although he did not desire he was forced to take settu and soon thereafter travelling for some distance he became unconscious. On regaining consciousness he found himself surrounded by many people and on asking them he learnt that he was at Pipra and he had been treated having been found in an unconscious condition near the canal wherefrom he had been brought to Pipra. He claims to have narrated the story to the villagers of Pipra who informed his family members. The bullock cart and bullock were found missing. The informant claims to have gone to village Semra in search of the bullock and bullock cart where he learnt from people that the person who had taken the bullock and bullock cart was Sita Ram, a resident of U.P. who had come visiting his relatives. The informant further claims to have stated that he went to the police station and came back to the village with police where the Officer Incharge took the petitioner into custody and the informant further claims to have identified the person who had taken his bullock and bullock cart. It has been submitted on behalf of the petitioner that he is innocent and had not been apprehended at the spot nor any incriminating articles had been recovered from his possession to indicate his complicity in the aforesaid crime and that his arrest by the police was merely on the basis of suspicion in connivance with the informant. In this connection, it was submitted that although the occurrence took place on 6.6.2005 and the informant returned to his house on the same day but no information thereof was given to the - 3 - police till 14.6.2005 and there is no plausible explanation for such inordinate delay in giving the fardbeyan. It appears that the police investigated the case and submitted a final report against the petitioner having found the case to be untrue but the learned Magistrate differing from the same and placing reliance on the materials available in the case diary was of the opinion that sufficient materials were available in the case diary for proceeding against the petitioner under Sections 406, 420, 328, 379 and 302 I.P.C. and accordingly took cognizance. From perusal of the fardbeyan as also the other materials available in the case diary, it appears that the police case was initially registered under Sections 406, 420, 438 and 399 I.P.C. to which Section 302 I.P.C. was added subsequently. From the final report submitted by the police it appears that Section 302 I.P.C. came to be added in course of investigation but there does not appear to be any case of death having taken place in which the informant or any of his family members were involved. However, from perusal of Annexure- 4 appended to the application which is the complaint petition of Complaint Case No.233 of 2005, it appears that there was an allegation by the complainant thereof, Munna Sah against Kapildeo Bhagat, Kishore Bhagat and Ashok Bhagat of Ashok Bhagat having assaulted the wife of the complainant with lathi and of Kapildeo Bhagat having borrowed the bullock cart and bullock of the father/complainant, Birja Sah, driven by his father, having been killed and his body being thrown near the canal and the bullock and bullock - 4 - cart were missing. It further appears that U.D. Case No.2 of 2005 was instituted on recovery of the dead body of Birja Sah. It would also appear that the two cases inadvertently and by way of absolute carelessness have been mixed up together since the manner of committing crime appears to be similar and, therefore, Section 302 I.P.C. was added in the present case and final form was submitted subsequently differing with which the learned Magistrate took cognizance. So far as the instant case is concerned, it appears from perusal of the impugned order dated 28.4.2006 of the learned Additional Chief Judicial Magistrate that several persons have supported the version of the informant and they had also identified the petitioner as being the same person who had taken away the informant with him. Unfortunately, the police appears to have mixed up the two cases in course of the investigation by the nature of commission of crime and inadvertently had added Section 302 I.P.C. to the instant case which in the facts and the circumstances of the case does not appear to be proper or warranted. From the evidence recorded by the I.O. it would appear from paragraphs 56 to 63, 68 to 70 and 73 to 75 of the case diary which are the statement of the witnesses belonging to Village Barhalganj and Shivatola, Arhar Chapra within Padrauna P.S. (U.P.) that the accused petitioner is a vendor of clothes and utensils. Merely because the nature and manner of occurrence appears to be the same it does not behove the police or the court to take cognizance in one case primarily on the basis of materials coming - 5 - to light in the other case, namely, U.D. Case No.2 of 2005. In the result, there appears sufficient ground for quashing of the entire criminal proceedings as against the petitioner. Accordingly, the application is allowed and the impugned order taking cognizance against the petitioner is hereby quashed. (Abhijit Sinha,J) Patna High Court, Patna. Dated: The 15th day of May, 2009. Pradeep Srivastava/A.F.R.