RANBIR SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) The petitioner is an accused in Kahalgoan P.S. Case No. 382 of 2008 for the alleged murder of the brother of the informant, prays for directing the respondent no. 2, the Director General of Police, Bihar Patna for taking over the investigation of the aforesaid police case from the District Police, Bhagalpur and handing over to Criminal Investigation Department (C.I.D.) of the State. In the above case, District police after investigation, recording the statement of the witnesses including the statement of the co-accused Haribol Jha under Section 164 of the Code of Criminal Procedure (hereinafter referred to as the 'Code'), submitted the police report charge sheeting the petitioner showing him as an absconder and the warrant of arrest as also processes under Section 82 and 83 of the Code were issued against him.Petitioner through an Interlocutory Application No. 689 of 2011, prays for quashing the warrant of arrest issued against the petitioner including other accused persons by order dated 08.01.2010.

(2.) Briefly the prosecution case as per the first information report lodged by one Akhileshwar Pandey, alleging that his younger brother, namely, Mukesh Kumar Pandey @ Guddu Pandey, (deceased), who was in the business of sale of sand and stone chips, informed his brother, namely, Sanjay Kumar Pandey on mobile in the night at about 9.30 p.m. that he is at the site of Mukhiya and would be returning within half an hour, however, the brother of the informant did not return and on the next morning, news about his murder was received. Thereafter, the aforesaid police case was lodged against unknown. During investigation, complicity of the petitioner and other accused persons were found in the aforesaid case. Mr. Rajendra Prasad Singh, learned Senior Counsel appearing for the petitioner submits that the main grievance of the petitioner which necessitated the prayer for changing the investigating agency is that since the petitioner, the husband of the concerned Mukhiya, is being implicated in this case for ulterior purpose, as the informant are influential persons. It is further submitted that even though, there is no complicity of the petitioner in the said case police got the statement of the co-accused Haribol Jha recorded under section 164 of the Code and in the said statement, the co-accused implicated this petitioner as well in the alleged crime. Mr. Singh submits that the statement of the co-accused Haribol Jha under Section 164 of the Code is inadmissible since the investigation was already over and chargesheet was submitted and thereafter, charges were also framed against the said co-accused Haribol Jha and as such, after framing of the charges his statement under Section 164 of the Code could not have been recorded in law as the trial commenced.

(3.) Notwithstanding the above, it is also submitted that except such statement of the co-accused, there is absolutely no other material on the record suggesting the involvement of this petitioner in the alleged crime. The learned counsel submits that a public document or uncontroverted document should be look into at this stage. Reliance is placed on a decision of the Supreme Court in the case of Harsendra Kumar D Versus Rebatilata Koley, 2011 3 PLJR(SC) 100 . Accordingly, the investigation of the case deserves to be handed over to the Criminal Investigation Department (C.I.D.) of the State, as prayed for, and the warrant of arrest issued against the petitioner be also quashed as the same is issued in aid of investigation. Reliance is placed on the decision of the Apex Court in the case of State through CBI Versus Dawood Ibrahim Kaskar, 1997 SCC(Cri) 636 (Paragraph - 22) as also the decision of this court in the case of Nalina Kant Agarwal Versus State of Bihar.,2003 1 PatLJR 350 Mr. Goutam Bose, learned Additional Advocate General No. VIII appearing for the State as also learned counsel for the informant vehemently opposed the prayer of the petitioner. It is submitted that prayer of the petitioner for grant of anticipatory bail was thrice rejected and instead of surrendering in the court below, the petitioner is absconding and has filed the present writ application merely to delay the conclusion of the criminal proceeding against him. The court below issued the warrant of arrest on 8th of January 2011, thereupon the present writ application was filed on 11th of January 2011. It is further submitted that there is no irregularity/illegality in recording the statement of the co-accused Haribol Jha under Section 164 of the Code, as the petitioner is not appearing in the court below and as such, trial could not be commenced. It is further submitted that in terms of the provision of sub-section (8) of section 173 of the Code, the police is not precluded from making further investigation even after trial has commenced and witnesses examined. Reliance has been placed on the decision of the Apex Court in the case of Rama Chowdhary Versus State of Bihar, 2009 6 SCC 346.