Ghanshyam Kumar vs The State Of Bihar Through, The ...
2022 Latest Caselaw 5314 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                   Criminal Writ Jurisdiction Case No.1056 of 2017
           Arising Out of PS. Case No.-217 Year-2015 Thana- SIRDALA District- Nawada
     ======================================================

Ghanshyam Kumar S/o Late Sh. Arjun Singh, SAP Jawan No. 381, R/o VillagePost- Beria, P.S.- Hathouri, Dist- Muzaffarpur, Bihar.

... ... Petitioner Versus

1. The State of Bihar through, the Director General of Police, Bihar

2. The Superintendent of Police, Nawada.

3. The DYSP , Rajauli, Nawada.

4. The S.H.O. Sirdala Police Station, Nawada.

5. Sri Nandkishore Singh, C.I. Sirdala Police Station, Nawada [I.O. of the case]

6. Sri Subhash Yadav, ASI, Sirdala Police Station, Nawada.

7. Nagendra Kumar S/O Pyare Chaudhary R/O Village- Chamotha Hat, P.S.-

Sirdala, District-Nawada.

8. Criminal Investigation Department, through it's A.D.G., Bihar, Patna.

... ... Respondents ====================================================== Appearance :

     For the Petitioner       :         Mr.Shashank Deo Sudhi, Advocate
                                        Mr. Santosh Kumar, Advocate
     For the State            :         Mr.Deepak Kumar, AC to GP-4
     For the Resp. No. 7      :         Mr. Indradeo Prasad, Advocate

====================================================== CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD ORAL JUDGMENT Date : 19-12-2022

Heard learned counsel for the petitioner, learned counsel

for the informant as also Mr. Deepak Kumar, learned AC to GP-4

for the State.

2. Petitioner, in the present case, is seeking the following

reliefs:-

"i. For quashing of FIR bearing Sirdala P.S. Case No. 217/2015 dated 12/11/15;

ii. For deleting the acquisition U/Ss 3(1)(x), 3(2)(v) of SC/ST Act as there is no any specific allegation attributed with regard to the special act against the present petitioner;

iii. For staying the no-coercive steps being taken/to be taken Patna High Court CR. WJC No.1056 of 2017 dt.19-12-2022

against the present petitioner;

iv. For any other relief/reliefs for which petitioner is found entitled in the facts and circumstances of the case." Brief facts of the case

3. In Sirdala P.S. Case No. 217/2015 registered on

12.11.2015 at about 2:45 P.M. the allegation is that on 11.11.2015

at about 12:00 P.M. in the night, the informant had gone to search

his deceased nephew Rakesh Kumar @ Pappu Chaudhary and at

Chamotha Hat, some children were said to have been playing

gambling on the occasion of Dipawali. It is alleged that during this

period, the SAP Police Force caught hold of the informant from

behind and allegedly removed Rs. 1200/- from his pocket as also

abused the informant and assaulted him. The informant claims that

he can identify the assailants by face. He has identified the said

person as Assistant Sub-Inspector of Police, namely, Subhash

Yadav who is alleged to have been with SAP force. It is alleged

that when the informant started crying, all children playing there

started fleeing away. Allegation is also that all the police force had

consumed wine and had started firing and in this firing the nephew

of the informant who was playing there received gun shot injury

and died at the alleged place of occurrence. One Upendra

Choudhary and another Gorelal Chaudhary had received gun shot

injuries and they were referred for treatment to a Private Hospital

at Patna.

Patna High Court CR. WJC No.1056 of 2017 dt.19-12-2022

Counter version

4. Contrary to the version of the informant, the 'SAP

Jawans' who were led by A.S.I. Subhash Yadav, have a different

story. A.S.I. Subhash Yadav has lodged a complaint with Sirdala

Police Station giving rise to Sirdala P.S. Case No. 216/2015 under

Sections 147/148/149/341/323/325/307/353 /337/160/290/332/427

of the Indian Penal Code against 150-200 unknown persons for

gambling, fighting among them, creating nuisance and pelting

stones/bricks, breaking the glass of the police vehicle, snatching of

rifles, scuffling and beating Mr. Ghanshyam Kumar (the

petitioner). In this F.I.R., the allegation against the unknown

person is to attempt of killing the police official in which three

rounds firing took placing mistakenly. Copies of both the F.I.Rs.

have been enclosed as Annexure '1' and '2' respectively.

5. Learned counsel for the petitioner submits that the

version of two F.I.Rs. are completely contradictory. The

investigating officer was supposed to investigate both the cases

simultaneously to find out the truth but in this case while the

investigation of Sirdala P.S. Case No. 216/2015 has been kept

pending till date, in Sirdala P.S. Case No. 217/2015, police has

hurriedly submitted a charge-sheet under Section 304 I.P.C. and

Section 3(1)(x), 3(2)(v) of the Scheduled Castes and Scheduled

Tribes (Prevention Atrocities) Act, 1989 (hereinafter referred to as Patna High Court CR. WJC No.1056 of 2017 dt.19-12-2022

the "SC/ST Act").

6. The said charge-sheet has been sought to be

challenged by filing one Interlocutory Application No. 01/2022

which has been allowed and the statements made in the

interlocutory application with the reliefs prayed therein have been

treated as part and parcel of the writ application.

7. This Court has given opportunity to the informant to

respond to the writ application and the interlocutory application

and the informant has filed counter affidavit. Similarly, the official

respondents/State has also filed a counter affidavit enclosing

therewith the copy of the case diary.

Submissions

8. In course of argument, learned counsel for the State

submits that so far as the investigation of Sirdala P.S. Case No.

216/2015 is concerned, presently he has no instruction, but one

thing is evident that while filing a charge-sheet in Sirdala P.S. Case

No. 217/2015, the investigation of Sirdala P.S. Case No. 216/2015

was kept pending.

9. Learned counsel for the informant has though

opposed this writ application but at the same time he has supported

the writ petition on certain points. In his opinion, the police was

wrong in lodging of the first information report under the

provisions of SC/ST Act, because the said provision could not Patna High Court CR. WJC No.1056 of 2017 dt.19-12-2022

have been attracted in the present case. He has further submitted

that surprisingly even after investigation police has not dropped

the sections under the SC/ST Act and the charge-sheet has been

submitted unmindfully under the provisions of SC/ST Act. Mr.

Indradeo Prasad, learned counsel for the informant has, thus,

submitted that so far as the prayer made in paragraph 1(ii) of the

writ petition is concerned, the same may be allowed. Learned

counsel has, however, submitted at the same time that the

investigating agency should have submitted charge-sheet in this

case under Section 302 I.P.C. instead of Section 304 I.P.C.

10. Towards the end of the argument, learned counsel for

the State as well as the informant agree that in this case the

investigating agency was required to investigate both the cases

together to find out the truth and in the present circumstance where

in one of the cases only charge-sheet has been filed that too under

wrong provisions of law which is not attracted, they would have

no objection if the charge-sheet in question is set-aside and the

entire investigation of both the cases are transferred to the

Criminal Investigation Department, Government of Bihar for a

proper, fair and impartial investigation of both the cases afresh.

11. Learned counsel for the petitioner agrees with this

and submits that he would be satisfied if both the cases are

reinvestigated by an independent agency such as CB-CID, Patna High Court CR. WJC No.1056 of 2017 dt.19-12-2022

Government of Bihar.

Consideration

12. Having heard learned counsel for the parties and

upon perusal of the records, two facts, which have transpired,

seem to be the admitted facts. Firstly, the police has submitted

charge-sheet only in Sirdala P.S. Case No. 217/2015 that too under

wrong provisions of law. The informant himself agrees that the

provisions of SC/ST Act would not be attracted. Secondly, the

investigation of Sirdala P.S. Case No. 216/2015 has been kept

pending whereas both were required to be investigated together.

13. In the given facts and circumstances of the case, this

Court is of the considered opinion that so far as the charge-sheet

bearing No. 386/2020 dated 10.09.2020 filed in connection with

Sirdala P.S. Case No. 217/2015 is concerned, the same is liable to

be set-aside, the same is, hereby set-aside. This Court would not

quash the First Information Report at this stage as even learned

counsel for the parties have agreed that both the cases require

reinvestigation/fresh investigation by an independent agency. In

that view of the matter, this Court directs the CB-CID,

Government of Bihar, to take over the investigation of both the

cases and conduct a fresh investigation in respect of both of them.

The investigation must be fair, impartial and independent.

14. Let the CB-CID, Government of Bihar through it's Patna High Court CR. WJC No.1056 of 2017 dt.19-12-2022

Additional Director General be added as party respondent no. 8.

15. Mr. Deepak Kumar, learned AC to GP-4 for the State

accepts notice on behalf of CB-CID, Government of Bihar.

16. The Superintendent of Police, Nawada (respondent

no. 2) is directed to hand-over the entire case records of both the

cases to the CB-CID, Government of Bihar within a period of two

weeks from today.

17. The prayer as contained in paragraph 1(ii) is allowed

in view of the admitted position that the provision of SC/ST Act

would not be applicable

18. This Writ Application is allowed to the extent

indicated hereinabove.

(Rajeev Ranjan Prasad, J) Rajeev/-

AFR/NAFR
CAV DATE
Uploading Date            20.12.2022
Transmission Date         20.12.2022