MOTIOR RAHMAN Vs. STATE OF BIHAR

JUDGEMENT

(1.) THIS application by the petitioner has been filed for cancellation of bail granted to opposite party no. 2 by learned SDJM, Muzaffar (West) by his order dated 8.12.93 passed in a criminal case bearing Trial No. 413 of 1999/ 815 of 2001 arising out of Sahebganj P. S. Case No. 68 of 1993 under sections 419 and 420 of the Indian Penal Code which is at present pending for trial before the court of Judicial Magistrate, 1st Class, Muzaffarpur, being Trial No. 815 of 2001.

(2.) THE brief facts giving rise to this application are that the petitioner as stated, is a retired teacher of Government Middle School and he has two sons, namely, Arshad Ali and Rashid Ali, who at the relevant time were students of an engineering college of Patna but now are in a private job and his these sons were arrested one after another in the year 1993 by police of Sahebganj Police Station on the basis of a forged permanent warrant of arrest issued from the court of Judicial Magistrate, Saharsa, which was sent for execution to officer -in -charge of Sahebganj (Annexure -1). The petitioner raised a protest before the officer -in -charge, Sahebganj Police Station that his sons had never visited Saharsa and thereafter one of his sons, namely, Arshad Ali was released on his personal bond by police. The petitioner also raised protest before the Superintendent of Police, Muzaffarpur that during the period of 6 months many forged warrants of arrest had been received by officer -in - charge, Sahebganj Police Station for execution and a number of persons had been arrested and were subsequently released after extorting money from them. Sub -Inspector of Police, Sahebganj, under the orders of S.R, Mazaffarpur went to Saharsa on 7.7.93 for verification of warrant of arrest issued against Arshad Ali, son of petitioner. On verification of the record of Trial No. 212/93 in which warrant of arrest was issued he found that warrant was forged one bearing forged seal and signature of court and it was further found that Arshad Ali was not accused in that case. The court of SDJM, Saharsa issued a certificate to this effect and kept the original warrant of arrest on record. The S.R, Muzaffarpur directed the Dy. S.R (West), Muzaffarpur for instituting an FIR in the matter and accordingly an FIR on 1.9.93/2.9.93 under sections 419/420 IPC against unknown was lodged and Sahebganj PS Case No. 68/93 was instituted (Annexure -4). During the course of investigation of the case it came to light - that opposite party no. 2 who was earlier working as a Munsi in Muzaffarpur Civil Court and who now is an advocate practising in Civil Court, Muzaffarpur was a person behind the racket of issuing forged warrant of arrest against a number of persons including the sons of petitioner and name of petitioner also figured in the Supervision Note (Annexure -5) and accordingly chargesheet against opposite party no. 2 was submitted (Annexure -5/A). After taking cognizance of the case and framing charges on 24.11.95 learned CJM, Muzaffarpur transferred the case to the court of SDJM (West), Muzaffarpur where opposite party no. 2 surrendered and prayed for bail on 8.12.93 and he was released on furnishing P.R. bond of Rs. 5,000/ -. The further case of petitioner is that six witnesses on behalf of prosecution have already been examined and 5 witnesses are yet to be examined from the prosecution side and on 30.5.95 A.S.I, of Police, Sahebganj, filed a petition before the court below for direction to opposite party no. 2 to give specimen of his signature and handwriting so that it could be compared and examined with the writings in the original warrant of arrest by an hand writing expert and further prayer was made for calling for the original warrant of arrest from the Court of SDJM, Saharsa but neither the original warrant of arrest from the court of SDJM, Saharsa has been received nor opposite party no. 2 has given specimen of his signature and handwriting. The SDJM, Saharsa has informed the trial court at Muzaffarpur that the original copy of warrant of arrest is trace - less and it will be forwarded when it will be available. According to the petitioner, when on 22.7.99 Khalil Ahmad and Munsi Rai, two witnesses from the side of prosecution, along with petitioner went to depose in this case and when they were taking tea in a tea stall in the campus of Muzaffarpur Civil Court, 4 -5 unknown criminal type persons came there and started assaulting the petitioner and Khalil Ahmad on the threat of pistol and this incident was witnessed by a number of persons including some advocates. The information of this incident was given to trial court by the counsel of petitioner and a petition was filed that witnesses were publicly threatened by hired criminals at the instance of opposite party no. 2. On filing of this petition on behalf of the petitioner, opposite party no. 2 cunningly filed a petition before the S.R, Muzaffarpur, alleging therein that he apprehended danger from the side of petitioner and S.R, Muzaffarpur directed the S.I., Sahebganj to hold an inquiry and submit a report and SI, Sahebganj after thorough inquiry submitted a report stating therein that opposite party no. 2 was involved in doing all sorts of forgery works and was threatening witnesses not to depose in court against him. Thereafter witness Khalil Ahmad was also threatened by opposite party no. 2 and he filed a petition before officer -in -charge, Sahebganj Police Station on 22.2.2001 for his protection for going to trial court for evidence and this fact was also examined and inquired by S I, Sahebganj who submitted his report to trial court on 18.3.2001 with a prayer to cancel the bail bond of Opposite party no. 2 but the trial court disposed of this petition submitted by police by the impugned order dated 21.4.2001 observing that prosecution witnesses, if they so require, may take help from police or SP, Muzaffarpur by filing a petition before them and refused the prayer of police to cancel the bail of opposite party no. 2 (Annexure -7). The petitioner has come up to this Court against this impugned order by further stating that opposite party no. 2 has formed a group of wrong doers and he is extorting money from innocent persons and getting forged warrant of arrest issued against innocent persons and because he is a practising lawyer of Muzaffarpur Civil Court, therefore, he is successfully managing the things in his favour and also getting order in his favour every time and earlier in an another case bearing trial no. 606/90 pending in the court of Sri K.K Sinha, Judicial Magistrate, 1st Class, Muzaffarpur under sections 419/420 IPC charge sheet was submitted by the police but the case has ended in the acquittal of opposite party no. 2 for want of evidence (Annexure -15) and opposite party no. 2 is a habitual offender and Disciplinary Committee of Bar Council in a proceeding against opposite party no. 2 had issued a show cause notice to him but opposite party no. 2 managed that matter also in his favour. Lastly the petitioner has stated that in view of aforesaid facts he has got reasonable apprehension that he will not get fair and impartial trial in Muzaffarpur because opposite party no. 2 is a practising lawyer in Muzaffarpur Civil Court and therefore, for the ends of justice bail bond of opposite party no. 2 may be cancelled and he may be taken into custody after setting aside the impugned order dated 8.12.93 passed by the court below. Opposite party no. 2 has appeared and has opposed the prayer of petitioner.

(3.) ADMITTEDLY six witnesses have already been examined on behalf of prosecution side in this case and five witnesses are yet to be examined. The matter relates to an occurrence of the year 1993. The case is perhaps pending for want of availability of original warrant of arrest which has not been sent to the trial court from the court of SDJM, Saharsa on the ground that it is traceless. It is not known when this warrant of arrest will be made available to the trial court. I, therefore, find that bail of opposite party no. 2 can not be cancelled at this stage because in absence of original warrant of arrest no time limit for conclusion of trial can be fixed. Opposite party no. 2 can not be kept in jail custody for an indefinite period. About the threatening given by opposite party no. 2 to prosecution witnesses trial court has rightly observed that in case witnesses are apprehending any danger of threatening in deposing in the case in question, they may seek protection by filing petition before the police concerned or S.P.Muzaffarpur. I, therefore find no cogent reason for allowing the prayer of petitioner.