S/O SHIVJI KUNWAR Vs. STATE OF BIHAR

JUDGEMENT

(1.) THREE of the sixteen F.I.R. named accused of Bajpatti P.S. Case No. 58 of 2006, G.R. No. 406 of 2006 have filed this application for quashing of order dated 13.12.2006 passed therein by the learned Sub Divisional Judicial Magistrate, Pupri at Sitamarhi, whereby he has taken cognizance against all the accused persons named in the F.I.R. including these petitioners against whom investigation is still pending whereas charge sheet has been submitted against the remaining others.

(2.) The aforesaid case was registered under Section 307 I.P.C. and other allied sections of the Penal Code and Section 27 of Arms Act to which Section 302 I.P.C. was added by order dated 5.8.2006, on the basis of a written report submitted by one Pravin Kumar Singh, impleaded herein as O.P. No. 2 at 9.45 P.M. on 4.8.2006 inter alia alleging that earlier that night at about 9 P.M. all the sixteen F.I.R. named accused including the petitioners along with 5 -7 unknown others variously armed with deadly weapons came to the darwaza of the informant and began to abuse him saying that now the Rathod community people have mustered so much courage so as to oppose on equal terms the Kuar community people of the village. It is alleged that soon thereafter the Block Pramukh, Seema Devi, ordered to kill the Rathour community people by firing whereupon Sudhir Kuar opened fire with his whereupon causing bleeding fire arm injury of Jitendra Singh who fell down and Pramod Kumar opened fired with his country made gun causing fire arm injury to Dharmendra Kumar Singh and accused Raj Kuar also fired at Arvind @ Munna Singh causing him injury. It is also alleged that Manoj Jha fired at the informant as a result of which he sustained partial injury and accused Vijay Singh assaulted Madhav Singh by means of butt portion of his riffle. It is said that having committed overt acts for about ten minutes the accused persons left and while departing they resorted to firing and also gave out that their purpose had been served. It is alleged that the occurrence took place in accordance with the plans hatched earlier at the instance of the Block Pramukh. The motive behind the occurrence is said to be the fact that the accused Sudhir Kuar and Seema Devi had threatened the mother of the informant not to contest the election of 2006 for the post of Panchayat Samiti Member which had not been obeyed by the mother and even her family members had opposed Seema Devi at the election of Block Pramukh and it was as a result of this enmity that the occurrence had taken place.

(3.) IT has been submitted on behalf of the petitioners that they are innocent, had committed no offence and had been falsely implicated due to ulterior motive as petitioner No. 1 Seema Devi had contested the last election of Pramukh and the informant being opposing candidate had lost. It is also submitted that it would be apparent from the F.I.R. that the petitioner No. 1 was only the order giver at whose instance the other accused persons resorted to overt acts and petitioner No. 2 is alleged to have fired at the informant whereas petitioner No. 3 was a mere member of the mob with no specific overt act attributed to him and that it was one Sudhir Kuar whose gunfire had resulted in the subsequent death of Jitendra Kumar Singh. It has further been submitted that on supervision by Dy. S.P. and Superintendent of Police it came to light that there was no involvement of the petitioners herein as they were not present in the village and the real assailant was one Anand Singh who had fired upon the deceased and that the said Anand Singh had not been made an accused in this case since he happens to be a member of the informant party. It was also submitted that in course of the investigation none of the witnesses had supported the prosecution case in respect of these three petitioners. Finally it was submitted that since the investigation had been kept pending against these three petitioners the Magistrate had no power or jurisdiction to take cognizance against these persons also.