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Patna High Court - Orders
Arun Kumar Singh vs State Of Bihar & Anr on 26 March, 2012
                     IN THE HIGH COURT OF JUDICATURE AT PATNA
                                 Criminal Miscellaneous No.26117 of 2008
                  =====================================================

Arun Kumar Singh, son of Chatarbhuj Singh, resident of village- Ekawana, Police Station-Barahara, District-Bhojpur.

.... .... Petitioner.

Versus

1. The State of Bihar.

2. Smt. Sitapati Devi, wife of Shivjee Singh, resident of village-

Pawana, P.S. Pawana, District-Bhojpur, at present Parmar Complex South of Ramana Road, P.S. Arrah, District-Bhojpur.
.... .... Opposite Parties.

===================================================== with Criminal Miscellaneous No.37621 of 2008 =====================================================

1. Bir Bahadur Singh, son of Chatarbhuj Singh.

2. Manoj Singh, son of Chatarbhuj Singh.

3. Rakesh Singh, son of Chatarbhuj Singh.

4. Awadhesh Singh, son of Late Gorak Singh.

5. Om Prakash Singh, son of Late Gorak Singh.

6. Lalan Singh, son of Late Gorak Singh.

7. Dadan Singh, son of Late Gorak Singh.

8. Doman Singh, son of Awadhesh Singh.

9. Sahdeo Singh, son of Awadhesh Singh.

10. Chatarbhuj Singh, son of Late Gorakh Singh. All are resident of village-Ekawana, Police Station-Barahara, District-Bhojpur.

.... .... Petitioners.

Versus

1. The State of Bihar.

2. Smt. Sitapati Devi, wife of Shivjee Singh, resident of village-

Pawana, Police Station-Pawana, District-Bhojpur. At present Parmar Complex, south of Ramana Road, Police Station-Arra, District-Bhojpur.
.... .... Opposite Parties.

===================================================== Appearance :

In both the applications:

For the Petitioners : Mr. Rakesh Kumar Sinha and Anuj Prakash, Advocates.

For the State : Mr. Dashrath Mehta, A.P.P.

===================================================== CORAM: HONOURABLE MR. JUSTICE RAJENDRA KUMAR MISHRA CAV ORDER

-------------------

8 26-03-2012 Since both the aforesaid Criminal Miscellaneous 2 Patna High Court Cr.Misc. No.26117 of 2008 (8) dt.26-03-2012 2 / 11 Applications, under Section 482 of the Code of Criminal Procedure, are for quashing of the order dated 20.5.2008 passed in Complaint Case No.2003(C) of 2007/Trial No.3112 of 2008 by the court of Sri B.M. Singh, Judicial Magistrate, Arra, summoning the accused-petitioners of both the aforesaid Criminal Miscellaneous Applications, on inquiry under Section 202 of the Code of Criminal Procedure, finding prima facie case under Sections 148, 149, 452 and 380 of the Indian Penal Code, therefore, both the aforesaid Criminal Miscellaneous Applications have been heard together and are being disposed of by this common order.

2. The brief facts, leading to these applications, are that the opposite party no.2, Smt. Sitapati Devi, filed the protest petition, numbered as Complaint Case No.2003(C) of 2007 in the court of the Chief Judicial Magistrate, Bhojpur, Arra, alleging therein that on 30.4.2004 at about 8.30/9.00 A.M., she was at her house whereas her husband and two sons, namely, Sanjeev and Shailendra were at their house, Parmar Complex, situated at the southern of the Ramana Road. At that time, all of sudden, she heard the voice to kill and loot in abusive language. Thereafter, her husband saw from the house and told that the family members of the accused, Chaturbhuj Singh (petitioner no.10 of Criminal Misc. No.37621 of 2008) and his men armed with rifle and gun 3 Patna High Court Cr.Misc. No.26117 of 2008 (8) dt.26-03-2012 3 / 11 are coming to kill. In the meantime, all the aforesaid three accused, Bir Bahadur Singh (petitioner no.1 of Criminal Misc. No.37621 of 2008), Ravi Shankar Singh, Om Prakash Singh (petitioner no.5 of Criminal Misc. No.37621 of 2008) and 20-25 unknown armed with rifle and gun making firing rushed near her house. Thereafter, on her direction, her husband and both sons with a view to save their lives fled away jumping the boundary wall from the back of the house. When she came out to the house she identified only the aforesaid accused persons but she could identify the rest accused, who were armed with gun and rifle, on seeing them again. Out of them, some started to chase her husband and two sons by making firing. While some accused entered into her house causing assault through fists and slaps to her and took away three briefcases containing gold and sliver ornaments and clothes worth of Rs.3/4 lacs of her both daughters-in-law and cash Rs.25,000/- as kept in the briefcases, by making firing. The opposite party no.2 further alleged that, in the meantime, the accused started to raise voice about sustaining firearm injury in course of fleeing hither and thither by one of them and to carry him at the Hospital. After fleeing the accused, she raised hulla on which the witnesses rushed there and saw the occurrence. At that time, the pedestrian had also saw the occurrence but no one dared 4 Patna High Court Cr.Misc. No.26117 of 2008 (8) dt.26-03-2012 4 / 11 to chase due to making firing by them. The opposite party no.2 further alleged that in the wall of her house there are several marks of firing and till now her husband and both sons are traceless. After filing the Complaint Case No.2003(C) of 2007 by the opposite party no.2, on enquiry under Section 202 of the Code of Criminal Procedure, the court of Sri B.M. Singh, Judicial Magistrate, Arra, summoned the accused, named in the complaint petition, including the petitioners of the applications, finding prima facie case under Sections 148, 149, 452 and 380 of the Indian Penal Code.

3. Learned counsel appearing on behalf of the petitioners of both the applications made submission that on the basis of the Complaint Case No.578(C) of 2005 filed on 4.5.2005 by the opposite party no.2 in the court of the Chief Judicial Magistrate, Bhojpur at Arra, as sent under Section 156(3) of the Code of Criminal Procedure to the concerned police station for investigation, Arra Nawadah P.S. Case No.111 of 2005 was instituted under Sections 147, 148, 149, 307, 452 and 380 of the Indian Penal Code and Section 27 of the Arms Act only against the accused , Bir Bahadur Singh (petitioner no.1 of Criminal Misc. No.37621 of 2008), Ravi Shankar Singh, Om Prakash Singh (petitioner no.5 of Criminal Misc. No.37621 of 2008) and 20-25 5 Patna High Court Cr.Misc. No.26117 of 2008 (8) dt.26-03-2012 5 / 11 unknown and on investigation the police submitted the final form on 6.2.2006 finding the case untrue with recommendation for prosecution for the offence under Sections 182 and 211 of the Indian Penal Code to the opposite party no.2, which would appear from Annexures-'2' and '3' to the Criminal Misc. No.26117 of 2008. Later on, the protest petition filed by the opposite party no.2, in which 15 persons were named as accused including the petitioners of both the applications, was numbered as Complaint Case No.2003(C) of 2007 and, on inquiry under Section 202 of the Code of Criminal Procedure, all the accused including the petitioners of both the applications have been summoned through the impugned order dated 20.5.2008. It has further been submitted that, in fact, on the basis of the fardbeyan of the accused, Awadhesh Singh (petitioner no.4 of Criminal Misc. No.37621 of 2008), Arra Nawadah P.S. Case No.104 of 2005 was instituted on 30.4.2005 under Sections 302/34 of the Indian Penal Code and Section 27 of the Arms Act against Shivjee Singh, Sanjeev Parmar and Shailendra Parmar, the husband and sons of the opposite party no.2 regarding the occurrence dated 29.5.2006 of about 9.30 A.M regarding the murder of his son, Ravi Shankar Singh. In that case, police submitted the chargesheet dated 30.4.2005 against the husband and one son, Shailendra Parmar, of the opposite party 6 Patna High Court Cr.Misc. No.26117 of 2008 (8) dt.26-03-2012 6 / 11 no.2 under Sections 302/34 of the Indian Penal Code and Section 27 of the Arms Act continuing the investigation against Sanjeev Kumar, the second son of the opposite party no.2. The opposite party no.2 maliciously in counter blast and to take defence in the said case for her husband and sons filed the Complaint Case No.578(C) of 2005 on 4.5.2005 in the court of the Chief Judicial Magistrate, Bhojpur at Arra, which was sent under Section 156(3) of the Code of Criminal Procedure to the concerned police station for investigation and, accordingly, Arra Nawadah P.S. Case No.111 of 2005 was instituted on 10.5.2005 under Sections 147, 148, 149, 307, 452 and 380 of the Indian Penal Code and Section 27 of the Arms Act against the accused , Bir Bahadur Singh (petitioner no.1 of Criminal Misc. No.37621 of 2008), Ravi Shankar Singh, Om Prakash Singh (petitioner no.5 of Criminal Misc. No.37621 of 2008) and 20-25 unknown and the police on investigation submitted the final form in the said case on 6.2.2006 finding the case untrue with the recommendation to proceed under Sections 182 and 211 of the Indian Penal Code against the opposite party no.2. As such, the Protest-cum-Complaint Case No.2003(C) of 2007 filed by the opposite party no.2 is malicious and in the counter blast of Arrah Nawadah P.S. Case No.104 of 2005 lodged on the basis of the fardbeyan of Awadhesh Singh 7 Patna High Court Cr.Misc. No.26117 of 2008 (8) dt.26-03-2012 7 / 11 (petitioner no.4 of Criminal Misc. No.37621 of 2008) against the husband and two sons of the informant for the murder of his son, Ravi Shankar Singh, under Sections 302/34 of the Indian Penal Code and Section 27 of the Arms Act.

4. On the other hand, learned A.P.P. for the State made submission that the learned Magistrate has rightly summoned the accused, named in Complaint Case No.2003(C) of 2007, including the petitioners of both the aforesaid applications, on inquiry under Section 202 of the Code of Criminal Procedure, finding prima facie case under Sections 148, 149, 452 and 380 of the Indian Penal Code through the impugned order dated 20.5.2008 and there is no illegality in the impugned order for interference in inherent jurisdiction under Section 482 of the Code of Criminal Procedure.

5. It appears from perusal of Annexure-'4' to Criminal Misc. No.26117 of 2008 that Arra Nawada P.S. Case No.104 of 2005 was instituted on 30.4.2005 under Sections 302/34 of the Indian Penal Code and Section 27 of the Arms Act on the basis of the fardbeyan dated 30.4.2005 of Awadhesh Singh (accused- petitioner no.4 of Criminal Misc. No.37621 of 2008) against Shivjee Singh, Sanjeev Parmar and Shailendra Parma, the husband and sons of the opposite party no.2 for the occurrence of 8 Patna High Court Cr.Misc. No.26117 of 2008 (8) dt.26-03-2012 8 / 11 30.4.2005 at about 9.30 A.M. regarding the murder of his son, Ravi Shankar Singh. Annexure-'5' to Criminal Misc. No.26117 of 2008 shows that the police on investigation submitted the chargesheet on 29.5.2006 in Arra Nawadah P.S. Case No.104 of 2005 under Sections 302/34 of the Indian Penal Code and Section 27 of the Arms Act against Shivjee Singh and Shailendra Parmar, the husband and one son of the opposite party no.2 continuing the investigation against Sanjeev Parmar, the second son of the opposite party no.2. Annexure-'2' to Criminal Misc. No.26117 of 2008 shows that on the basis of the Complaint Case No.578(C) of 2007 dated 4.5.2005 of the opposite party no.2 filed in the court of the Chief Judicial Magistrate, Bhojpur at Arra, as sent under Section 156(3) of the Code of Criminal Proceudre to the concerned police station for investigation, Arra Nawadah P.S. Case No.111 of 2005 was instituted on 10.5.2005 against the accused , Bir Bahadur Singh (petitioner no.1 of Criminal Misc. No.37621 of 2008), Ravi Shankar Singh, Om Prakash Singh (petitioner no.5 of Criminal Misc. No.37621 of 2008) and 20-25 unknown regarding the occurrence dated 30.4.2004 of about 8.30/9.00 A.M. In the aforesaid complaint case, which is the basis of the F.I.R. of Arra Nawadah P.S. Case No.111 of 2005, the opposite party no.2 has alleged that the accused, , Bir Bahadur 9 Patna High Court Cr.Misc. No.26117 of 2008 (8) dt.26-03-2012 9 / 11 Singh (petitioner no.1 of Criminal Misc. No.37621 of 2008), Ravi Shankar Singh, Om Prakash Singh (petitioner no.5 of Criminal Misc. No.37621 of 2008) and 20-25 unknown armed with weapons entered into her house and making firing looted away three briefcases containing the gold and silver ornaments and clothes of her both daughters-in-law and Rs.25,000/- as kept in the briefcases. While at that time, due to fear of the murder , her husband, Shivjee Singh and two sons, namely, Sanjeev Parmar and Shailendra Parmar, fled away jumping the boundary wall from the back of the house and they were traceless till the filing of the Complaint Case No.578(C) of 2005 dated 4.5.2005 by the opposite party no.2. It has also been alleged in the complaint petition of the opposite party no.2 that she also heard the voice of the accused persons about sustaining the firearm injury to their one associate in their firing. Annexure-'3' to the Criminal Misc. No.26117 of 2008 shows that after investigation, the police submitted the final form on 6.2.2006 in Arra Nawadah P.S. Case No.111 of 2005 finding the case untrue with recommendation to proceed under Section 182 and 211 of the Indian Penal Code against the opposite party no.2. It appears that after submission of the final form in Arra Nawadah P.S. Case No.111 of 2005 by the police on 6.2.2006, the protest petition filed by the opposite party 10 Patna High Court Cr.Misc. No.26117 of 2008 (8) dt.26-03-2012 10 / 11 no.2 naming 15 persons as accused including the petitioners of both the applications was treated as complaint petition, numbered as Complaint Case No.2003(C) of 2007 and on enquiry under Section 202 of the Code of Criminal Procedure, the accused, named in the protest-cum-complaint petition, including the petitioners of both the applications have been summoned through the impugned order dated 20.5.2008 finding prima facie case under Sections 148, 149, 452 and 380 of the Indian Penal Code. As such, the Complaint Case No.2003(C) of 2007, in which the accused-petitioners of both the applications have been summoned through the impugned order, appears to have been filed by the opposite party no.2 maliciously as a counter blast of Arra Nawadah P.S. Case No.104 of 2005 lodged on 30.4.2005 by Awadhesh Singh (accused-petitioner no.4 of Criminal Misc. No.37621 of 2008) against the husband and two sons of the opposite party no.2 and to take defence in Arra Nawadah P.S. Case No.104 of 2005.

6. Under the aforesaid circumstances, the impugned order dated 20.5.2008 passed in Complaint Case No.2003(C) of 2007/Trial No.3112 of 2008 by the court of Sri B.M. Singh, Judicial Magistrate, Arra, summoning the petitioners of both the applications for the offence under Sections 148, 149, 452 and 380 11 Patna High Court Cr.Misc. No.26117 of 2008 (8) dt.26-03-2012 11 / 11 of the Indian Penal Code appears to be an abuse of the process of the court and the same, with respect to the petitioners of both the applications, is hereby quashed and the applications are allowed.

(Rajendra Kumar Mishra, J) P.S./-