CHHOTAN PRASAD Vs. STATE OF BIHAR

JUDGEMENT

(1.) Seven Petitioners, while invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, have prayed for quashing of an order dated 12.8.1999 passed in Trial No. 189 of 1999, G.R. No. 109 of 1991 (arising out of Ekangarsarai P.S. Case No. 30 of 1991). By the said order, learned Magistrate, while allowing the discharge petition of two accused persons, who were earlier summoned, has found that a prima facie case under Section 302/34 of the Indian Penal Code was made out against all the Petitioner and directed for issuance of non bailable warrant of arrest against the Petitioners.

(2.) Short fact of the case is that on 1.2.1991, on the basis of written report, submitted by one Binod Kumar Singh, an F.I.R. vide Ekangarsarai P.S. Case No. 30 of 1991 was registered under Section 302/34 of the Indian Penal Code against ten un-known accused persons. However, the informant had suspected the involvement of ten accused persons including seven Petitioners. It was disclosed by the informant that on 1.2.1991, while he returned from Patna to his village in morning, he was informed that his son Aditya Kumar aged 3 & 1/2 years was missing from his house. The informant with his wife and villagers started to search his son. However, the resident of Dakshini Tola did not come along with the informant for searching his son. On the contrary, they shut down their doors. After some time, dead body of son of the informant was found near a primary school. The informant suspected the hands of villagers of Dakshini Tola and also disclosed the name of ten persons which include seven Petitioners. Accordingly, an F.I.R. vide Ekangarsara P.S. Case No. 30 of 1991 was registered on 1.2.1991 against un-known. After investigation, police submitted charge sheet against two accused persons, namely, Sunderdeo Prasad Singh and Vidya Bhushan for the offence under Sections 304(A)/201/34 of the Indian Penal code. During investigation, it was found that the son of the informant died due to accident by the vehicle of one of the accused persons. Accordingly, charge sheet was submitted against two accused persons. After submitting charge sheet, by an order dated 18.5.1993, the learned Magistrate took cognizance of the offence under Sections 304(A)/201/34 of the Indian Penal code against two charge sheeted accused persons and transferred the case to the court of Shri P.N. Sharma, Judicial Magistrate, Ist Class for its disposal. At the stage of charge, a petition was filed on behalf of two charge sheeted accused persons for their discharge under Section 239 of the Indian Penal Code. By the impugned order i.e. order dated 12.8.1999, Shri A.K. Mishra, learned Judicial Magistrate, Ist Class allowed the discharge petition and at the same time, after taking cognizance of the offence under Section 302/34 of the Indian Penal code against the Petitioners, directed for issuance of non bailable warrant of arrest against the Petitioners.

(3.) Aggrieved with the order dated 12.8.1999 passed by Shri A.K. Mishra, learned Judicial Magistrate, Ist Class, Hilsa, the Petitioners approached this Court by filing the present petition. On 31.8.1999, learned Counsel for the Petitioner was permitted to add Sunderdeo Prasad Singh and Vidya Bhushan as opposite party Nos. 2 and 3, who were discharged by the impugned order. While issuing notice to opposite party Nos. 2 and 3, this Court directed that till further order, operation of impugned order dated 12.8.1999 shall remain stayed. It was also pointed out by learned Counsel for the Petitioner on 31.8.1999 that the informant has already died. Subsequently, on 24.4.2000, the present petition was admitted for hearing and till disposal of this application, part of the impugned order dated 12.8.1999, so far as issuance of non bailable warrant of arrest against the Petitioner was concerned, was ordered to remain stayed.