SANTLAL PASWAN Vs. STATE OF BIHAR

JUDGEMENT

(1.) The sole petitioner, while invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, has prayed for quashing of an order dated 22.3.1999 passed by the Chief Judicial Magistrate, Vaishali in Trial No.645 of 1999 arising out of Baligaon P.S. Case No.14 of 1998. By the said order, the learned Magistrate has taken cognizance of offence under Sections 324, 326, 302/34 of the Indian Penal Code.

(2.) Short fact of the case is that on the basis of fardbeyan of one Ganaur Paswan, an F.I.R. vide Baligaon P.S. Case No.14 of 1998 was registered on 14.5.1998 for the offence under Sections 341, 323, 326, 307/34 and 324 of the Indian Penal Code, in which subsequently Section 302 I.P.C. was added after the death of the injured. The informant had disclosed in his fardbeyan that this petitioner and other accused persons were involved in a case in which kerosene oil was sprinkled on one Ram Bilas Paswan and in the said occurrence, thereafter, accused Surendra Paswan put fire on the cloths and thereafter, he received serious burn injuries. In the F.I.R., there was specific allegation against the petitioner and other accused persons. On the basis of fardbeyan, F.I.R. was registered against the petitioner and others. However, subsequently, the injured Ram Bilas Paswan died and thereafter in the F.I.R., Section 302 I.P.C. was added vide order dated 16.6.1998. After investigation, police submitted charge sheet against accused persons, however, the case against this petitioner was found un-true. Subsequently, supplementary charge sheet was submitted on 31.10.1998 against some of the accused persons. Again the petitioner was not forwarded by the police. On 22.3.1999, the learned Magistrate took cognizance of offence under Sections 324, 326, 302 of the Indian Penal against six accused persons and also against the petitioner. After the order of cognizance, the petitioner approached this Court by filing the present petition. On 12.11.2002, due to non prosecution, the case was dismissed by this Court. Subsequently, it was restored and finally the case was admitted on 3.9.2004. While admitting, this Court summoned the lower court records and also directed that during the pendency of this application, further proceeding pending in the court of Chief Judicial Magistrate, Vaishali at Hajipur in Tr. No.645 of 1999 shall remain stayed so far this petitioner is concerned.

(3.) Shri Arun Kumar, learned counsel appearing on behalf of the petitioner, while challenging the order of cognizance, submits that the order of cognizance is liable to be set aside on number of grounds. Firstly it was submitted that after investigation, police submitted charge sheet against other accused persons. However, this petitioner was exonerated by the police. After submission of first charge sheet, the learned Magistrate took cognizance of offence only against one of the accused persons, namely, Budhan Paswan by its order dated 29.8.1998. It was submitted that once the learned Magistrate, after submission of charge sheet, had taken cognizance of offence only against accused Budhan Paswan, the learned Magistrate, at subsequent stage, was not authorized to take cognizance of the offence even against this petitioner. It was submitted that subsequent order amounts to reviewing earlier order, which is not permissible in the eye of law. It was further submitted that even during further investigation, nothing was collected against this petitioner and as such in supplementary charge sheet also, nothing was indicated against this petitioner. The learned Magistrate, after submission of supplementary charge sheet without any new material, was not authorized to take cognizance of the offence against the petitioner. It was submitted that neither any protest petition was filed by the informant nor any new material was brought before the court below and as such the learned Magistrate had committed grave error while taking cognizance even against the petitioner. It was submitted that the learned Magistrate had passed the order without application of mind and in a mechanical manner, the learned Magistrate has taken cognizance even against this petitioner. Learned counsel for the petitioner has alternatively argued that even the accused persons against whom charge sheet was submitted and they were put on trial, most of accused persons have already been acquitted. It was submitted that accused Budhan Paswan, against whom there was specific allegation of sprinkled kerosene oil, was put on trial in Sessions Trial No.262 of 1998 and on 27.9.2002, the learned Additional Sessions Judge, F.T.C.III has acquitted Budhan Paswan. Learned counsel for the petitioner has referred to Annexure-4 to the supplementary affidavit i.e judgment of acquittal dated 27th September,2002 passed in Sessions Trial No.262 of 1998. Learned counsel for the petitioner has referred to paragraph-10 of the said judgment and it was argued that even during the trial of Budhan Paswan, it was found that the informant of the case was not actual eye witness and as such he was acquitted. Learned counsel has also submitted that other two accused, namely, Surendra Paswan and Bisheshwar Paswan were put on trial vide Sessions Trial No.401 of 2003 and they too were acquitted on 20.4.2004. It has further been submitted that other accused persons have already been acquitted from the charges. It has been submitted that keeping in view the fact that since most of the accused persons, who were put on trial, have already been acquitted, no purpose would be served by directing the petitioner to face trial in such situation. Accordingly, it has been prayed that while exercising power under Section 482 of the Code of Criminal Procedure, this Court may interfere with the order of cognizance and allow the present petition.