SANAJAY KUMAR Vs. STATE OF BIHAR

JUDGEMENT

(1.) Heard Mr. Sanjay Kumar, learned counsel for the petitioner, Mr. Hans Raj, learned counsel for the O.P. No. 2 to 11 and Mr. Binod Kumar No. 3, learned APP for the State.

(2.) The instant petition has been filed under Sec. 482 of the Code of Criminal Procedure, 1973 ( in short 'Cr.P.C.') with a prayer to quash the order dtd. 25/7/2014 passed by the court of learned Chief Judicial Magistrate, Nawada in connection with Nagar P.S. Case No. 557 of 2012 dtd. 18/10/2012 registered for the offences under Ss. 147, 148, 149, 448, 379, 435, 436, 427, 307 of the Indian Penal Code (in short 'IPC') and Sec. 27 of the Arms Act whereby the learned Chief Judicial Magistrate, Nawada accepted the final form, exonerating the O.P. No. 2 to 11 by the police.

(3.) Mr. Sanjay Kumar, learned counsel appearing for the petitioner submits that the instant matter relates to the serious offences of mischief committed by fire, attempt to murder, riot, using the firearm and destroying the several motorcycles and tractors as well as stealing several mobile phones etc. The O.P. No. 2 to 11 are named in the FIR and altogether twenty accused persons including the said OPs were named by the informant in the said FIR. The O.P. No. 2 to 11 actively participated in the commission of the alleged offences and the important witnesses including the informant whose details has been given in the FIR as having witnessed the entire occurrence, were examined by the investigating officer who revealed the presence of the O.P. No. 2 to 11 as being present at the place of occurrence and being involved with the co-accused persons. Ten accused persons named in the FIR were apprehended at the spot and the police chargesheeted them but exonerated the O.P. No. 2 to 11 by not sending them up while they were equally involved in the alleged occurrence and their names find place in the FIR and the material witnesses who claimed to have witnessed the occurrence, fully supported the allegations levelled against the said OPs in the FIR. The police mainly relied upon the statements of some witnesses who are said to be independent persons but their presence at the place of occurrence as claimed by them, is completely doubtful. Learned counsel further submits that during investigation, the petitioner filed a protest petition dtd. 9/11/2012 due to non- action against the named accused and the police report was filed on 28/2/2014 chargesheeting the co-accused who were apprehended at the spot and not sending up the O.P. No. 2 to 11 but before that, the petitioner had filed his protest petition and after the submission of the police report he again filed his protest petition dtd. 17/6/2014 against the police conclusion for not sending up the O.P. No. 2 to 11 and prayed for to take cognizance against all the named accused persons and the copies of the said protest petitions have been filed as Annexure-3 and Annexure-4. As such, it is clearly evident that at the time of passing the impugned order relating to cognizance on the police report, the protest petition filed by the petitioner was on the record but the same was not taken into consideration which is completely a violation of the law settled by the Hon'ble Apex Court in various judgments. It is lastly submitted that before accepting the police report as to not sending up the O.P. No. 2 to 11, the learned Magistrate did not take any pain to give the petitioner an opportunity of hearing by getting his appearance through the service of notice and in this regard, the impugned order may be perused which is also a violation of the settled position of law.