SHANKAR RAM Vs. STATE

JUDGEMENT

(1.) The larger question that looms in this reference to the Full Bench is whether S. 167(2) of the Code of Criminal Procedure envisages and permits the forwarding of a police report under S. 173(2) against only one or some out of the many accused persons jointly charged with an offence while investigation has as yet not been completed against all.

(2.) Shankar Ram, petitioner, is one of the accused persons in Chakia Police Station Case No. 53/83 dated the 4th of June, 1983 for the offence of dacoity coupled with murder under S. 396 of the Penal Code. The said case was registered on the fard beyan of Phuldeo Prasad Singh alleging that at 8 P.M. on the night of the 3rd of June, 1983,20 to 25 persons variously armed with lathi, guns and torches broke into his house and started firing indiscriminately forcing him to flee therefrom. Thereafter they allegedly looted properties worth Rs. 1,40,000/- from the house and also took away double barrelled gun No. 7034 which stood licensed in the name of the informant's elder brother Tejnarain Singh. In the course of the crime, Nand Bihari Tiwari a co-villager, received gun shot injuries to which he succumbed later in the Chakia hospital. The inmates of the house and the first informant identified and named some of the culprits who were alleged to be between the age of 18 to 40 years whilst it was claimed that the others could be identified if located. It is the petitioner's claim that he is alleged to be a member of the dacoit gang only and no specific arm or allegation of having shot any one is laid against him.

(3.) The petitioner was arrested in another case, namely, Sahebganj Police Station case No. 115/81 under Ss. 399 and 402 in the district of Mazaffarpur. However, he was remanded to jail to the present case on the 28th of June, 1983 by the Sub-divisional Judicial Magistrate of Sikrahna at Motihari, It would appear that a police report No. 46/83 against the petitioner Shankar Ram was submitted on the 19th of September, 1983. The petitioner alleges that no final form has been submitted in the case and the investigation is as yet not complete against all the accused in the dacoity case. Consequently, it is the stand that the police report (annexure-3/A) without completion of the investigation against all the accused persons named in the dacoity is illegal, without jurisdiction and a colourable exercise of power, which cannot deprive the petitioner from getting the benefit of being released under S. 167(2) of the Code of Criminal Procedure (hereinafter to be referred to as 'the Code'). The petitioner prayed for bail, inter alia, on the aforesaid ground but the learned Magistrate rejected the same on the 28th of September, 1983. Thereafter the petitioner moved the learned Sessions Judge, Motihari, for bail which was also rejected by the order dated the 14th of November, 1983, by Shri V. N. Trivedi, Sessions Judge. Aggrieved thereby, the present petition has been preferred.