DIEAKANT CHOUDHRY Vs. STATE OF BIHAR

JUDGEMENT

(1.) By this application filed under Section 482 of the Code of Criminal Procedure, the petitioner has challenged the order dated 3-9-1996 passed by the Sub-Divisional Judicial Magistrate, Dalsingsarai at Samastipur in Dalsingsarai P.S. Case No. 57 of 19% (G.R. No. 177 of 1996) whereby the learned Magistrate dismissed the petition of the petitioner filed for recording the statement of prosecution witnesses under Section 164 of the Code of Criminal Procedure.

(2.) The brief fact of the case is that the son of the petitioner Rakeshmani aged about 19-20 years was a College student and was preparing for appearing in the Bio-ehemic examination at Muzaffarpur and he had come back to his village home about 10 days prior to the date of occurrence. On 17-4-19% he left his house in the morning for going to his "Nanihal" at Barauni disclosing that he would go with his College friend Sushil Kumar. On 18-4-1996 the petitioner received information from the relation that the son of the petitioner and his friend Sushil Kumar were murdered in the broad day light by some persons of village Mahanaiya and Kamraon and the dead bodies were sent to Samastipur for post mortem. After 20-21 days the petitioner went to village Kamraon and learnt from the eye witnesses that the accused persons of village Mahnaiya and Kamraon killed the aforesaid two boys and the witnesses gave vivid description as to how brutally they were killed in the broad daylight in the early hour of the day even in presence of an A.S.I. who also abetted the murder of Shushil Kumar. It was further alleged that when Shushil Kumar was crying for water the Jamadar (A.S.I.) directed the accused persons to finish him and consequently at his instance Shushil Kumar was killed by pressing his chest. Subsequently, the other police officials came and the accused persons in order to save their skin brought the police in collusion and inspite of request by the witnesses to take action against the killers the police immediately sent the dead bodies to Samastipur and gave a false assurance that action would be taken. It was further alleged that the petitioner learnt that the eye-witnesses of the village sent registered letter to D.G.P. Bihar, Patna, D.I.G. Darbhanga, S.P. Samastipur and others about the brutal murder of two young boys but to no effect. It was further stated that the petitioner was under the impression that the police would take action against the guilty persons but it was subsequently learnt that the local police in collusion with the accused persons and the local M.L.A. was trying to save the accused persons from legal punishment. The petitioner, however, went to the police station, Dalsingsarai to ascertain about the progress of the case but the police officials refused to give the correct picture: It is further alleged that after being convinced and satisfied about the collusive move of the police to save the murderers the petitioner filed a complaint in the Court of learned Sub-divisional Judicial Magistrate, Dalsingsarai Camp at Samastipur on 4-6-1996 along with the copy of public petition sent by the villagers and witnesses to all concerned. Learned Sub-divisional Judicial Magistrate by order dated 5-6-1996 directed the police, Dalsingsarai to institute and investigate the case with a further direction to send the F.I.R. by 1-7-1996. It further appears that on 1-7-96 when the F.I.R. was not received learned Magistrate on the prayer of the petitioner sent the copy of the complaint through the S.P. Samastipur for compliance of his order, i.e. for registering the case and fixed 21-7-19% for the receipt of the F.I.R. However, the police sent a report that the complaint case filed by the petitioner with was sent for registering the case had been tagged with Dalsingsarai PS. case No. 57 of 1996 and investigation was going on with respect of the allegation made in the complaint petition. The aforesaid Dalsingsarai P.S. case No. 57 of 1996 was registered by the police on the basis of the statement of Dafadar Md. Rastam of the village against unknown, under Section 304 of the Indian Penal Code for allegedly killing the aforesaid two boys by villagers. It was further alleged that the aforesaid case No. 57 of 1996 was device to save the real culprits in collusion with the local M.L.A. It was further stated that the petitioner and witnesses appeared before the Investigating Officer and gave their statements but the police did not record the same. The petitioner, therefore, in the facts and circumstances of the case, filed a petition before the learned Sub- divisional Judicial Magistrate, Dalsingsarai at Samastipur for recording the statement under Section 164 of the Code of Criminal Procedure of the witnesses but the learned Magistrate refused the prayer on a flimsy ground. The petitioner filed another petition on 20-9-1996 slating therein that the petitioner is the real informant and the police is spoiling the case in collusion with the accused persons besides one of them is the A.S.I. of the said police station and as such statements of the witnesses be recorded under Section 164 of the Code of Criminal Procedure, learned Magistrate by the impugned order rejected the said application.

(3.) I have heard Mr. Suraj Narayan Prasad Sinha, learned Counsel appearing on behalf of the petitioner and Mr. Ashok Kumar Choudhary, learned Counsel appearing on behalf of the State.