ASHIQUE ANSARI Vs. STATE OF BIHAR

JUDGEMENT

(1.) The petitioners herein are accused in Sessions Trial No. 69 of 1995 arising out of Nimiaghat P.S. Case No. 102 of 1990 and have approached this Court for quashing and setting aside the order dated 30-4-1998 of the First Addl. Sessions Judge, Giridih, declining to permit the Public Prosecutor or for that matter, the Addl. Public Prosecutor of Giridih from withdrawing their prosecution in the case which is awaiting trial before him to pass appropriate order in the fact circumstances of the case.

(2.) The case has a chequered history. On 22-9-1990 at 10.00 a.m. petitioner No. 1 lodged FIR with Nimiaghat P.S. at the house of the Puran Nayak situated at village Sharanpur at a distance of 8 kms from Nimiaghat P.S. alleging that during the proceeding night he had gone to his pond situated at the same village as fish resided by him therein were going out due to overflow of water of the pond. A few others including Chote Nayak, son of Puran Nayak were present there from before and they had placed nets for preventing the fish from going out. At about midnight, co-villagers Hasimuddin, Jainul Abedin and Kamisan Ansari accompanied by eight to ten unknown persons arrived there and Hasimuddin fired a shot from a fire-arm hitting on the chest of Chhote Nayak who died at the spot. Abedin also aimed at the petitioner No. 1 his shot, but it did not hit him. He fled to the village raising alarm and came back subsequently with others and thereafter took away the dead body of Chote Nayak to his house. Next morning when the police arrived thereof. FIR No. 78 of 1990 of Nimiaghat P.S. was recorded and a case under Section 302 and other sections of Indian Penal Code was registered against Hasimuddin, Jainul Abedin, Ansari and other unknown persons. The investigation of the case was entrusted to a junior sub-inspector named R.P.Singh. However, in the midst of investigation, the then officer-in-charge of Nimiaghat P.S. took up the investigation reportedly at the behest of the Superintendent of Police of the district. In course of further investigation by him, complicit of petitioner the informant in Nimiaghat P.S. Case No.78/90 was suspected. The father of the deceased suspected that, in all probability his son had been killed by petitioner No. 1 with a view to falsely implicate Hasimuddin with whom he was having long standing enmity. Two persons cited by the petitioner No. 1 in his FIR has eye-witnesses of the occurrence namely Fagu Singh and Ashari Singh also disclosed that they had accompanied petitioner No. 1 to the pond joined by the deceased. After some time, petitioner No. 1 asked them to go away to ascertain if any fish had been trapped in the nets placed by them. In the meantime, they heard two gun-shots and petitioner No. 1 fleeing away raising alarm. In other words, they did not support the story of petitioner that Hasimuddin and others had arrived there and in their presence the deceased had been shot dead by Hasimuddin. Consequently, the officer incharge of Nimiaghat P.S. drew another FIR on his own statement on the basis of which Nimiaghat P.S. case No. 102/90 dated 15-12-1990 was registered against these petitioners under Sections 302/201 read with Section 34 of Indian Penal Code and Section 27 of the Arms Act. After completion of the investigation, he submitted charge-sheet against the petitioners for commission of the offence referred to above, and accordingly, cognizance was taken. It appears that initially final report was submitted in Nimiaghat P.S. Case No.78/90 after completion of the investigation stating that the allegation against the accused-persons was false. However, on the intervention the Supdt. of Police of the district, the Chief Judicial Magistrate, Giridih, did not accept the final report and directed re-investigation. Subsequently, charge-sheet was submitted and on the basis thereof, the case was committed to the Court of Sessions giving rise to S.T. No. 161 of 1996.

(3.) In the meantime, petitioner No.1 having been denied bail by the Chief Judicial Magistrate, approached the Sessions Judge, Giridih for bail by filing an application under Section 439 of the Code of Criminal Procedure. The learned District and Sessions Judge, Giridih while granting bail to petitioner No. 1 in connection with Nimiaghat P.S. Case No. 102/90 made some adverse comments on the conduct of the officer incharge of Nimiaghat P.S. and doubted manoeuvring on his part to falsely implication these petitioners, including petitioner before him, with a view to shield the accused-persons in Nimiaghat P.S. Case No. 78/90 instituted at the instance of petitioner No. 1 on the basis of the observations made by the District and Sessions Judge, the Supdt. of Police, Giridih, wrote to the District Magistrate for withdrawing the case arising out of Nimiaghat P.S. Case No.102/90. Before the District Magistrate could apply his mind to the request of the Supdt. of Police, the petitioner No. 1 presented an application before him for withdrawing the case instituted against him. Consequently, by his order dated 4-4-1994, the District Magistrate of Giridih directed the Public Prosecutor of the district to withdraw Nimiaghat P.S. Case No.102/90 which was still awaiting committal. Consequently, the Public Prosecutor made an application under Section 321 of the Code of Cr. Procedure before the Magistrate asking his permission to withdraw the case. Before any order could be passed on that application, Jainul Abedin one of the accused in Nimiaghat P.S. Case No.78/90 moved this Court by filing a writ application calling in question the legality and propriety of the order of the District Magistrate and the application filed by the Public Prosecutor on the basis thereof. That writ application was registered as Cr. W.J.C. No. 280 of 1994(R) and stood disposed of by a Division Bench of this Court on 28-11-1998 permitting the Public Prosecutor or Assistant Public Prosecutor Incharge of the case to seek permission of the Court for withdrawal of the prosecution without being influenced or guided by the order of the District Magistrate, if he was satisfied that the withdrawal necessary. In other words, the Public Prosecutor or the Assistant Public Prosecutor was required to exercise his own discretion in the matter of withdrawal. It may be mentioned that aggrieved by the order of taking cognizance against them, the accused-persons of Nimiaghat P.S. Case No.102/90 initiated proceeding in this Court under Section 482 of the Code of Criminal Procedure for quashing the entire criminal proceeding including the order of taking cognizance against them. However, at a later stage, they withdraw their application and the case against them was committed to the Court of Session giving rise to S.T. No. 69/95. After the case was committed, the Public Prosecutor presented a fresh application under Section 321, Cr PC, seeking permission to withdraw from the prosecution of the accused-persons in that case. On such application having been filed, the Session Judge of Giridih permitted withdrawal of the prosecution and discharged the accused-persons in accordance with the provisions of Section 321(a) of the Cr PC, by his order dated 4-7-1995.