Sanjay Kumar Sinha vs The State Of Bihar
2023 Latest Caselaw 3445 Patna

     IN THE HIGH COURT OF JUDICATURE AT PATNA
             CRIMINAL MISCELLANEOUS No.33419 of 2015
     Arising Out of PS. Case No.-84 Year-2013 Thana- RAJIVNAGAR District- Patna
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Sanjay Kumar Sinha son of Late Dr Tulsi Prasad Sinha, resident of Jagriti Nagar, Magistrate Colony Road, P.S.- Rajeev Nagar, Dist.- Patna.

... ... Petitioner/s Versus The State Of Bihar ... ... Opposite Party/s ====================================================== Appearance :

For the Petitioner/s : Mr. Ajay Kumar Thakur, Advocate Mr. Sangeet Deokuliar, Advocate For the Opposite Party/s : Mr. Jitendra Kumar Singh, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE RAJIV ROY

C.A.V. JUDGMENT Date : 02-08-2023

Heard Mr. Ajay Kumar Thakur, learned counsel

duly assisted by the Mr. Sangeet Deokuliar for the petitioner

and Mr. Jitendra Kumar Singh, learned APP for the State.

2. The present petition under Section 482 of the

Cr.P.C. have been preferred for the quashing of the order dated

23.03.2015 passed in Rajeev Nagar P.S. Case No. 84 of 2013

by the learned Judicial Magistrate 1st Class, Patna by which

cognizance has been taken under sections 399, 402, 120(B) of

the I.P.C. and Sections 25(1-b) A, 26 and 35 of the Arms Act.

3. The facts of the case as narrated by the

petitioner is/are as follows:

(i) that, one Dhirendra Kumar Pandey, the then

Station Head Officer of the Rajeev Nagar Police Station

lodged the present case under sections 399/402/120-B of the

1.P.C. and under section 25(1-b)a/26/35 of the Arms Act Patna High Court CR. MISC. No.33419 of 2015 dt.02-08-2023

alleging that that on 07.06.2013, five armed criminals had

assembled near petitioner's house, at about 9:00 AM. in order

to commit murder of his wife Dr. Sarita Sinha in the morning

and thereafter also commit dacoity in the house to give it the

colour of murder in course of committing dacoity. It has

further been alleged that the entire criminal act was being

conspired under directions of the petitioner through his mobile

phone;

.(ii) the petitioner was married with Dr. Sarita

Sinha in the year 1995 and had a turbulent married life. When

Sarita Sinha entered his house after completing her House-job

from Darbhanga Medical College in 1997, the petitioner's

father having already passed away about six months prior to

the marriage; and his mother suffering from cancer and having

lost her desire to live breathed her last in a hospital in Surat.

The petitioner was there with her for a pretty long time and

during that time the total control of his properties from

24.10.1999 to 01.12.1999 was with his wife who developed

greed for it and was fully supported by her family members;

(iii) when the situation reached became

unbearable and beyond control for the reasons as stated above,

the petitioner filed some cases and Informatory petitions for Patna High Court CR. MISC. No.33419 of 2015 dt.02-08-2023

her misdeeds and even for protection to his life in view of

incident of threats and intimidation and use of criminal force

by the family members of Dr. Sarita Sinha and other unknown

persons. The petitioner also sought indulgence of Patna High

Court at times.

4. Mr. Ajay Kumar Thakur, learned counsel for

the petitioner submits that the informant filed this case at the

behest of Dr. Sarita Sinha, his wife by fabricating the facts

inasmuch as the local police was hands in glove with her to

implicate him.

5. The further case of the petitioner is that the

other accused persons namely, Pankaj Kumar and Vipulesh

were forced to sign blank documents only to implicate the

petitioner herein. Further, the seizure list witness, Sudhir

Kumar is a physiotherapist closely associated with his wife,

Dr. Sarita Sinha. The relevant paragraph nos. 14 and 17 are

incorporated here-in-below for the proper assistance:

14. That, the petitioner has been made accused by the S.H.O.

of Rajiv Nagar police station with ulterior motives and under the influence of higher officials on the very ground of confessional statement of co-accused Pankaj Patna High Court CR. MISC. No.33419 of 2015 dt.02-08-2023

Kumar who later on unfolded the truthfulness of the prosecution case by way of his letter from Jail sent by the Assistant Jail Superintendent. Adarsh Kendriya Kara, Beur Vide Memo no, 4429 dt. 23.08.2013.

                                                            17.   That.   Dr.   Sarita
                                         Sinha      has       made    several    false

complaints including the allegation of killing of her son vide her Complaint to the Director General of Police, Bihar dated 28.05.2013 which was found untrue vide Enquiry Report dated 05.06.2013. On the other hand, no action has been taken against Dr. Sarita Sinha for lodging a false complaint of such heinous offence against the petitioner.

6. Learned counsel for the petitioner submits that

he is running from pillar to post to save his life and property

but his wife and other family members are hell bent upon to

harass him and grab his properties and this case is in

continuation of that motive.

7. The further submission is that even if accepted

at face value, the act of preparedness in itself does not

constitute an offence. In support of his submission, he has

cited decisions of Hon'ble the Supreme Court of India in Patna High Court CR. MISC. No.33419 of 2015 dt.02-08-2023

Malkiat Singh and Anr vs. State of Punjab reported in

1970 AIR 713 in which it was held that mere preparedness

cannot be held to be an offence. He, further cited another case

of Patna High Court in Manoj Kumar @ Manoj Kunar

Gupta vs. State of Bihar reported in (2007) 1 PLJR 320 in

which the paragraph 7, which was recorded as follows:

7. As a matter of law a preparation for committing an offence is different from attempt to commit it. The preparation consists in devising or arranging the means or measures necessary for the commission of the offence. On the other hand, an attempt to commit the offence is a direct movement towards the commission after preparations are made. In order that a person may be convicted of an attempt to commit a crime, he must be shown first to have had an intention to commit the offence, and secondly to have done an act which constitutes the actus reus of a criminal attempt. The sufficiency of the actus reus is a question of law which had led to difficulty because of the necessity of distinguising between acts which are merely preparatory to the commission of a crime, and those which are sufficiently to commit it. If a man buys a box of matches, he cannot be convicted of attempted arson, Patna High Court CR. MISC. No.33419 of 2015 dt.02-08-2023

however clearly it may be proved that he intended to set fire to a haystack at the time of the purchase. Nor can he be convicted of this offence if he approaches the stack with the matches in his pocket, but if he bends down near the stack and lights a match which he extinguishes on perceiving that he is being watched, he may be guilty of an attempt to burn it.

8. The last citation given by Mr. Ajay Kumar

Thakur is another Apex Court Judgment in Chaturi Yadav

and Others vs State of Bihar reported in (1979) 3 SCC 430

which held that assembling and making preparation to commit

theft cannot be proved although, possibility of intention to

commit some other offence is/are there. He as such submits

that the present petition be allowed and the cognizance order

dated 23.03.2015 taken by the learned Judicial Magistrate, 1st

Class, Patna in Rajeev Nagar P.S. Case No. 84 of 2013, so far

as the petition is concerned, is fit to be quashed.

9. Learned State Counsel, Mr. Jitendra Kumar

Singh has filed a counter affidavit on behalf of the Senior

Superintendent of Police, Patna and submits that at this stage,

the only thing that has to be seen is whether a prima-facie case

is made out against the accused-petitioner herein or not.

10. The further submission of the learned State Patna High Court CR. MISC. No.33419 of 2015 dt.02-08-2023

Counsel is that the accused persons were arrested with

weapons who confessed to have been asked by the petitioner

to kill the lady (Dr. Sarita Sinha).

11. It is his submission that the Police

investigated the matter, submitted chargesheet and the learned

Court having prima-facie satisfied took cognizance in the

matter. He as such submits that it cannot be said that the

Police in high handedness matter, is trying to implicate him at

the behest of his wife, Dr. Sarita Sinha as the learned

Subordinate Court prima-facie is/was satisfied that a case is

made out against the petitioner herein amongst other.

12. It is his further submission that the ploy of

Vipulesh and Pankaj Kumar to create a defence already stands

rejected in view of the fact that their discharge petition was

not allowed by the learned Trial Court and they are facing the

trial.

13. It is the further submission of the learned APP

is that the petitioner had earlier moved in Cr.WJC No. 648 of

2014 and he has taken this Court to the Annexure R/1 which is

part of the counter affidavit of the Senior Superintendent of

Police, Patna to show that one of the prayer of the petitioner

was as follows:

Patna High Court CR. MISC. No.33419 of 2015 dt.02-08-2023

C. For issuance of an appropriate Writ Order/s, Direction/s commanding the respondents for transfer of investigation in connection with Rajeev Nagar P.S.Case No. 84 of 2013 dt.

07.06.2013 (State Vs. Pankaj Kumar Singh & Ors.) to another agency; for initiation of appropriate action/actions against the erring police officials; and award of suitable compensation for the ongoing harassment, mental agony and threat of further implication of the petitioner by the local police."

14. He submits that this Cr. WJC 648 of 2014

was withdrawn by the petitioner on 26.03.2015.

15. He submits that this fact has been suppressed

by him when in paragraph 2 of the present petition, he has

stated that the petitioner has not moved this Hon'ble Court

earlier in this matter.

16. It is his submission that in the said Cr.WJC

while allowing the petitioner to withdraw the petition, he was

granted liberty to raise all the points available before the

learned Magistrate concerned and in case, such a petition to be

filed, the Court was directed to pass a reasoned order. He

further submits that the petitioner never submitted any petition

before the concerned Magistrate.

Patna High Court CR. MISC. No.33419 of 2015 dt.02-08-2023

17. He as such submits that the petition is fit to be

dismissed for suppression of facts.

18. Having gone through the rival submissions as

also the facts on records, this Court finds force in the

submissions put forward by the learned APP. The claim of the

petitioner is that the Police was hand in glove with his wife

(Dr. Sarita Sinha) to implicate him in this case.

19. However, the investigation took place on the

basis of materials available on record and the Police submitted

chargesheet. Thereafter, the learned Judicial Magistrate after

finding prima-facie case against the petitioner took

cognizance which cannot be faulted upon.

20. Further, the points raised by the learned

counsel for the petitioner that mere preparation cannot lead a

person for conviction, the same is for the Trial Court to

decide.

21. In most of the cases which has/have been

cited by the learned counsel for the petitioner including

Chaturi Yadav and Ors (supra), it relates to conviction of the

accused in which the Hon'ble Apex Court held that mere

preparation of crime is different from actual crime and as such

that cannot be the basis of conviction.

Patna High Court CR. MISC. No.33419 of 2015 dt.02-08-2023

22. Here, it is not the final order and/or it is not

the case of the petitioner that the Court has come to the

conclusion and/or convicted the petitioner rather it is only a

prima-facie satisfaction of the learned Judicial Magistrate on

the basis of materials available on record which led her to take

cognizance in the matter against amongst other, the petitioner

herein.

23. The petitioner has liberty to raise all the

points in his defence before the Trial Court so that the trial

finally comes to an end.

24. However, so far as the present petition is

concerned, having gone through the facts of the case and the

submissions put forward by the respective counsels, this Court

do not find any merit in the petition preferred by the petitioner

herein.

25. The Cr. Misc. No. 33419 of 2015 fails and is

accordingly dismissed.

(Rajiv Roy, J) Kiran/-

AFR/NAFR                      AFR
CAV DATE                    26.07.2023
Uploading Date              02.08.2023
Transmission Date