Patna High Court
Raj Kumar vs The State Of Bihar Through District ... on 1 May, 2024
IN THE HIGH Court OF JUDICATURE AT PATNA
Criminal Writ Jurisdiction Case No.530 of 2023
Arising Out of PS. Case No.-157 Year-2022 Thana- KHAGARIA District- Khagaria
======================================================
1. Raj Kumar, S/O B.N. Vaish, Resident of Quarter No.-C-2, Judicial Officers
Colony, Sansarpur, Khagaria, P.S.- Khagaria (Muffasil), District- Khagaria.
2. Kusum Devi, W/O Raj Kumar, Resident Of Quarter No.-C-2, Judicial
Officers Colony, Sansarpur, Khagaria, P.S.- Khagaria (Muffasil), District-
Khagaria.
... ... Petitioner/s
Versus
1. The State of Bihar Through District Magistrate, Khagaria. Bihar
2. The Superintendent of Police, Khagaria. Bihar
3. The Station House Officer, Khagaria (Muffsail), Police Station, Khagaria.
Bihar
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Ms. Archana Sinha @ Archana Shahi, Advocate
For the Respondent/s : Mr. Prabhat Kumar Verma, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE BIBEK CHAUDHURI
CAV JUDGMENT
Date : 01-05-2024
1. This Court proceeds to deliver the judgment
based on a very unfortunate allegation against a senior member
of Bihar Superior Judicial Service. The Petitioner is a Member
of Bihar Superior Judicial Service and was posted as Principal
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Judge, Family Court, Khagaria at the relevant point of time. On
1st of February, 2022, the Petitioner left his official quarter early
morning for walking at about 05:15 A.M. When he returned to
his official residence at about 06:15 A.M., he found that the
main gate of his official residence was open. One, Virendra
Prasad Singh, Homeguard, since deceased, was on duty at the
relevant point of time as Homeguard in the official residence of
the Petitioner. Seeing the entrance gate open at the early hour of
morning, he asked the above-named Homeguard as to why the
gate remained open. At this, the said Homeguard became
agitated and abused him saying that it was not his duty to close
the entrance gate of the official residence of the Petitioner.
There was some exchange of words between the Homeguard
and the Petitioner. The aforesaid Homeguard abused him saying
that he was not a servant of the father of the Petitioner. In course
of altercation, the said Homeguard pointed his service riffle on
the chest of the Petitioner and threatened him to open fire to kill
him. Immediately, the Petitioner snatched the riffle away from
the possession of the Homeguard. Thereafter, he informed the
matter to the Superintendent of Police, Khagaria over telephone.
2. It appears from the Muffasil Police Station G.D.
Entry No. 3, dated 1st of February, 2022 that on 07:05 A.M., the
Patna High Court CR. WJC No.530 of 2023 dt.01-05-2024
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on duty Police Officer got information over telephone from one
Amar Verma, Bench Clerk of the Court of Chief Judicial
Magistrate, Khagaria that some problem cropped up involving a
Homeguard deputed at the residence of the Principal Judge,
Family Court, Khagaria, with the Petitioner. The Sub-Inspector,
Gunjan Kumar recorded the said information in the General
Diary Book and left the Police Station for the residence of the
Principal Judge, Family Court, Khagaria at 07:05 A.M. He
reached the residence of the Petitioner, appraise of the fact, took
charge of the said Homeguard, namely, Virendra Prasad Singh
along with the service riffle and 13 rounds of live cartridges
from his possession. He also received a written complaint
submitted by the Petitioner at his residence and returned to the
Police Station at 08:05 A.M. In the G.D Entry No. 7, dated 1 st of
February, 2022 at 08:05 A.M., it is recorded by S.I., Gunjan
Kumar that he returned to the Police Station from the residence
of the Petitioner situated at the Judge's Colony, Sansarpur along
with Homeguard, Virendra Prasad Singh and the written
application submitted by the Petitioner to him. He also recorded
in the G.D. Entry that when he reached the official residence of
the Petitioner, he found O.S.D., S.I, Mahendra Singh and a
Constable of Police Line present there, to whom the Petitioner
Patna High Court CR. WJC No.530 of 2023 dt.01-05-2024
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was telling the incident involving the said Homeguard. The
aforesaid Homeguard was standing at the spot. The Petitioner
informed S.I., Gunjan Kumar that the said Homeguard
misbehaved with him, threatened to shoot him by placing his
riffle on his chest. The said Homeguard handed over his service
riffle and cartridges. S.I., Mahendra Singh and the Constable of
Police counted the bullets and received the riffle and cartridges
to deposit them in the Police line. When S.I, Gunjan Kumar
asked the Homeguard about the incident, he could not say
anything. He was shivering. The Police Officer noticed
abrasions over his nose and upper lips. He had repeatedly asked
him to tell his name but it appeared to the Police Officer that he
was not in a position to speak. Then, S.I, Gunjan Kumar brought
him to the Police Station by his official vehicle. It appears from
the documents filed on behalf of the Petitioner that on the basis
of the written complaint submitted by the Petitioner, Police
registered Khagaria Muffasil P.S. Case No. 85 of 2022, dated 1 st
of February, 2022, under Sections 341, 504 and 506 of the
Indian Penal Code on 1st of February, 2022 at about 09:35 A.M.
3. It is also found from the copy of the Police
Station General Diary Book that on 08:15 A.M of the same day,
S.I., Gunjan Singh was informed that Virendra Prasad Singh,
Patna High Court CR. WJC No.530 of 2023 dt.01-05-2024
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Homeguard was vomiting and some red substance was mixed in
his vomitous. The above-named Police Officer went to the place
where the Homeguard was kept and looking at vomitous, he
immediately took the Homeguard to Sadar Hospital, Khagaria in
Police vehicle for medical treatment along with Satyendra
Paswan and Raghuvir Kumar, both Homeguards. At about 09:00
A.M., S.I., Gunjan Kumar requested the on duty Police Officer
in the Police Station to send two Homeguards to Sadar Hospital,
Khagaria with a command order. The said information was
recorded in the G.D Entry Book and at 09.00 A.M. vide Entry
No. 10. G.D Entry No. 14, dated 1st of February, 2022 at 10:30
A.M. reveals that S.I., Gunjan Kumar came back to Police
Station from Sadar Hospital, Khagaria and the said Homeguard
was given primary treatment in the Sadar Hospital, Khagaria
and referred to some better hospital for better treatment of the
said Homeguard. Accordingly, the said Virendra Prasad Singh
was taken to private nursing home, namely, Ishwar Hospital at
Begusarai and he was admitted there. The family members of
the Homeguard were informed about hospitalisation of the said
Homeguard. From Ishwar Hospital, Begusarai, he was
transferred to Patna Medical College and Hospital, where he
died on 14th of February, 2022.
Patna High Court CR. WJC No.530 of 2023 dt.01-05-2024
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4. Other side of the story is as follows:-
On 2nd of February, 2022, one Gautum Kumar, Son
of Virendra Prasad Singh, since deceased, lodged a written
complaint to the Officer-In-Charge, Muffasil P.S., Khagaria,
stating, inter alia, that his father was posted as Homeguard in
the official residence of the Principal Judge, Family Court at
Khagaria. On 1st of February, 2022 at about 07:00 A.M., he
received a phone call and came to know that the Principal
Judge, Family Court, Khagaria and his wife badly assaulted his
father and as a result of the assault, he was seriously injured.
After receiving the information, he rushed to Khagaria Hospital
and saw his father. The Medical Officer told him that he should
be taken to a better hospital for better treatment. The informant
also found marks of assault on the head of his father and he was
unconscious. He was vomiting blood as a result of receiving
injury on his head. The informant immediately took his father
by an ambulance to Begusarai and he was admitted to Ishwar
Hospital, Begusarai. It is also alleged by the informant that the
Principal Judge and his wife compelled his father to do
sweeping, cleaning and other households work in the official
residence. The father of the informant denied to perform such
household works on the date of occurrence, as a result of which
Patna High Court CR. WJC No.530 of 2023 dt.01-05-2024
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the Principal Judge and his wife became angry and assaulted
him. He was pushed back by them. As a result, he fell down on
the ground and received severe injury on his head and other
parts of body. It is also stated by him in the written complaint
that he came to know about the incident from another
Homeguard, namely, Satyendra Paswan, who was one of the
Homeguards deputed on the official residence of the Principal
Judge, Family, Court, Khagaria and he told him that the incident
took place in his presence. Though Police received the said
complaint on 2nd of February, 2022, but did not register any case
against the Petitioner and his wife. The written complaint was
left unattended till 23rd of February, 2022.
5. The case diary of Khagaria Muffasil P.S Case
No. 157 of 2022, dated 23rd of February, 2022, instituted for the
offences punishable under Sections 341, 342, 323, 337, 338, 307
and 34 of the Indian Penal Code was called for during hearing
of the instant writ petition. It appears from paragraph 8 of the
case diary that on the basis of the written complaint submitted
by Gautum Kumar, son of late Virendra Prasad Singh, the
Superintendent of Police, Khagaria wrote a letter, dated 4th of
February, 2022 to the District and Sessions Judge, Khagaria,
requesting him to inform the Police Authority about the
Patna High Court CR. WJC No.530 of 2023 dt.01-05-2024
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guidelines to register a criminal case against a Judicial Officer.
The District and Sessions Judge, Khagaria vide his letter bearing
no. 421/2022, dated 14th of February, 2022, informed the
Superintendent of Police of Khagaria that in view of the
decision of the Hon'ble Supreme Court in the case of Delhi
Judicial Service Association, TIS Hazari Court, Delhi v. State
of Gujarat & Ors., reported in (1991) 4 SCC 406, permission
of the Hon'ble High Court is required to register a Police case
against a judicial officer. Thereafter, the High Court of
Judicature at Patna was approached for obtaining requisite
permission and the permission was granted by the Registrar
General, In-Charge, High Court of Judicature at Patna on 21st of
February, 2022. Only after receiving the said permission,
Khagaria Police Station Case No. 157 of 2022 was registered on
23rd of February, 2022 under Sections 341, 342, 333, 337, 338,
307 and 34 of the IPC with adding Section 302 of the IPC
against the Petitioner.
6. Under the aforesaid factual background, the
Petitioner has filed the instant writ petition for the following
reliefs:-
(i) For quashing of First
Information Report of Khagaria
(Muffasil) P.S. Case No. 157 of 2022,
Patna High Court CR. WJC No.530 of 2023 dt.01-05-2024
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dated 23.02.2022 (Anx-1), registered
under Sections 341, 342, 323, 337, 338
and 307/34 of the Indian Penal Code, and
later on Section 302 of the Indian Penal
Code was added by the Police on
15.07.2022
.
(ii) For ad-interim stay of
the proceedings of Khagaria (Muffasil)
P.S. Case No. 157 of 2022 dated
23.02.2022, (G.R. No. 483/22), under
Sections 341, 342, 323, 337, 338, 302,
307, 34 I.P.C. pending in the Court of
C.J.M., Khagaria.
(iii) For any other
consequential relief or reliefs for which
the Petitioner is found entitled during the
course of hearing of the writ petition.
7. It is submitted by Smt. Archana Shahi, learned
Advocate for the Petitioners that Khagaria P.S. Case No. 157 of
2022 is a glaring example of false and malicious implication of
an innocent Judicial Officer in order to suppress a case of
custodial violence perpetrated by Police in the Police Station
upon the Homeguard.
8. The learned Advocate appearing on behalf of the
Petitioners refers to the relevant G.D. entries already recorded
hereinbefore and submits that when S.I., Gunjan Kumar went to
the official residence of the Principal Judge, Family Court,
Patna High Court CR. WJC No.530 of 2023 dt.01-05-2024
Khagaria, he found the victim Homeguard standing in one
corner of a room. He found small abrasions over the nose and
upper lip of the Homeguard. He did not find any other injuries.
It also appears from the relevant G.D Entry that the above-
named Police Officer took custody of the Homeguard. He was
shivering at that point of time and did not say his name and
address. However, he was taken to Police vehicle from the
residence of Principal Judge and brought to the Police Station.
In the relevant G.D Entry, it was not recorded by the Police
Officer that the Homeguard or any other person informed him
that he was assaulted by the Petitioner and his wife. According
to the G.D. Entry No. 3, dated 1st of February, 2022, S.I., Gunjan
Kumar received information about the written complaint of the
Petitioner against Homeguard at 07:15 A.M. in the official
residence of the Petitioner. Therefore, it took about 10 minutes
to reach the official residence of the Petitioner from the Police
Station. The aforesaid Homeguard was under the custody of
Police from 07:15 A.M. to 08:05 A.M. At about 08:15 A.M., one
Chaukidar, namely, Bindeshwar Tati informed him that the
Homeguard was vomiting. Then, he was taken to Khagaria
Hospital for medical treatment. Thus, from 07:15 A.M. to 08:15
A.M, on 1st of February, 2022, the victim remained in the
Patna High Court CR. WJC No.530 of 2023 dt.01-05-2024
custody of the Police.
9. It is contended by Smt. Archana Shahi, learned
Advocate for the Petitioners that the victim might have been
assaulted by Police when he was under their custody.
10. The learned Advocate for the Petitioners next
submits that Satyendra Paswan and another Homeguard, who
was also posted as one of the Homeguards in the official
residence of the Principal Judge accompanied the victim and the
Police Officer in the same vehicle from the official residence of
the Petitioner to the Police Station. He also did not make any
statement that the victim was assaulted by the Petitioner and his
wife severely or that he was pushed back, as a result of which he
fell down and sustained injury on his head or that the Principal
Judge assaulted the victim with the help of the butt of the riffle
and his wife assaulted him with a piece of brick. According to
the learned Advocate for the Petitioners, all these stories were
subsequently created by the Investigating Officer for the
purpose of the criminal case.
11. Learned Advocate for the Petitioners next
submits that victim Virendra Prasad Singh was examined by Dr.
Shubham Kumar Sinha, Medical Officer attached to Khagaria
Sadar Hospital and on examination, he found slight abrasion on
Patna High Court CR. WJC No.530 of 2023 dt.01-05-2024
the base of the nose and slight abrasion on left middle finger. He
also found the patient unconscious at the time of his medical
examination so the patient was referred to some higher medical
centre. Thus, it is contended by the learned Advocate for the
Petitioners that the Medical Officer who examined the patient at
the earliest point of time did not find any injury on his head.
Therefore, the allegation that the victim received serious injury
on his head cannot stand.
12. Next she takes me to the post-mortem report of
the deceased conducted on 14th of February, 2022 at 01:30 P.M.
The Autopsy Surgeon reported that he did not find any injury
over the body, external or internal. He opined that the cause of
death was Cerebral Anoxia resulting from Intracranial
Hemorrhage. Thus, the Autopsy Surgeon also did not find any
injury, external or internal, during post-mortem examination of
the deceased.
13. It is submitted by the Learned Advocate for the
Petitioners that if a person is assaulted on the backside of the
head with the help of wooden butt of service rifle or a piece of
brick or he falls down on a hard surface on being pushed by
some person, there must be some marks of injury on the external
part of the head. At least, there will be swelling and hematoma
Patna High Court CR. WJC No.530 of 2023 dt.01-05-2024
on the head of the victim but the doctor did not find any such
injury on initial examination at Sadar Hospital, Khagaria. In the
CT- scan, fracture was found in the occipital region of the scalp
of the victim but Police obtained expert report on the basis of
the CT-scan after a lapse of about three months of the
occurrence. Therefore, such subsequent report cannot be taken
into consideration, even prima facie, to hold that the Petitioner
was responsible for causing such injury of the victim, as a result
of which he died at PMCH, Patna on 14th of February, 2022.
14. The learned Advocate on behalf of the State, on
the other hand, submits that after the above-named Homeguard
was taken to the Police Station, he started vomiting and
vomitous mixed with blood came out of his stomach. He was
immediately taken to the hospital and when the Medical Officer
at Khagaria Police Station examined him he was found
unconscious. The Medical Officer referred him to some super
specialty hospital. The victim was then admitted to Ishwar
Hospital, Begusarai and from there, he was transferred to
PMCH, Patna, where he died on 14th February, 2022.
15. Indisputably, the incident took place on 1st of
February, 2022, the son of the victim, namely, Gautam Kumar,
lodged a written complaint to the Police on 2nd February, 2022.
Patna High Court CR. WJC No.530 of 2023 dt.01-05-2024
16. The learned Advocate on behalf of the State
submits that much criticism was made on the ground as to why
Police immediately did not register any case against the
Petitioner and commenced investigation on the basis of the
complaint lodged by the son of the victim but the facts remains
that the Petitioner was at the relevant point of time a Principle
Judge, Family Court at Khagaria. Therefore, the Superintendent
of Police wrote a letter on 4th of February, 2022 to the Learned
District & Sessions Judge, Khagaria seeking permission to
register a case against the Petitioner. The Learned District and
Sessions Judge informed the Superintendent of Police, Khagaria
by a letter, dated 14th of February, 2022 that Police is at liberty
to register a case against the Petitioner following the guidelines
of the Hon'ble Supreme Court enumerated in Delhi Judicial
Service Association, Tis Hazari Court, Delhi v. State of Gujarat
and Ors. Subsequently, the Police Administration took an
opinion of this Court on the issue of registration of a case
against the Petitioner on the basis of the complaint filed by the
son of the victim, on 21st February, 2022. The then Registrar
General, Patna High Court, Patna informed the Superintendent
of Police, Khagaria that the High Court at Patna was pleased to
permit him to proceed with the matter in terms of the guidelines
Patna High Court CR. WJC No.530 of 2023 dt.01-05-2024
laid down by the Hon'ble Supreme Court in the case of Delhi
Judicial Service Association (supra). Only then, Police
registered Khagaria PS Case No. 157 of 2022, dated 23rd of
February, 2022 against the Petitioner and his wife for the
offences punishable under Sections 341 / 342 / 323 / 337 / 338 /
307 / 34 of the IPC with added Section 302 of the IPC.
17. Thus, it is contended by the Learned Advocate
for the State that there was no intentional latches on the part of
the Police administration in registering a Police case against the
Petitioner immediately on receipt of the complaint from the son
of the victim. Delay was caused due to the reason that the
Learned District and Sessions Judge and the High Court at Patna
permitted Police Administration to register a case against the
Petitioner after a lapse of about 20 days. Therefore, there was
delay in registering the F.I.R. against the Petitioner.
18. The Learned Advocate on behalf of the State
next submits that over the said incident, the Homeguard
Association lodged a complaint against the Principal Judge,
Family Court at Khagaria to the District Magistrate. The District
Magistrate sent the said complaint for enquiry to the Public
Grievance Redressal Forum, Khagaria on 2nd February, 2022.
The Enquiry Committee was formed by the Additional
Patna High Court CR. WJC No.530 of 2023 dt.01-05-2024
Superintendent of Police, Khagaria, the District Commandant,
Homeguard, Khagaria and the Additional District Collector,
Public Grievance Redressal Forum, Khagaria. The Enquiry
Committee interrogated the Principal Judge, Family Court
Khagaria. The Committee gave the same count of incident
which was reported by the son of the victim in his complaint to
the Police Station on 1st February 2022. It was also stated by
the Committee that at the relevant point of time there were four
Homeguards posted in the official residence of the said officer.
Amongst them, he noticed one Satyendra Paswan and Heeralal
Verma performed their duty satisfactorily but one Lal Chandra
Yadav and Virendra Prasad Singh (victim) were persons of rude
behaviour and they were not in the habit of obeying commands
of the concerned officer. The concerned officer made his
grievance against them to the Superintendent of Police,
Khagaria on 29th January, 2022. The Public Grievance Redressal
Forum also examined three Homeguards posted at the official
residence of the concerned Judge and the said Homeguards,
namely, Lal Chandra Yadav and Satyendra Paswan made
submission before Public Grievance Redressal Forum that the
Principal Judge and his wife assaulted Virendra Prasad Singh on
1st February, 2022.
Patna High Court CR. WJC No.530 of 2023 dt.01-05-2024
19. Thus, the Learned Advocate for the State
submits that all the Homeguards posted in the official residence
of the Petitioner stated that the Petitioner and his wife admitted
the victim on 1st February, 2022 at about 06:15 A.M. The
Petitioner himself informed the incident to the Superintendent of
Police. One staff of Khagaria District Court informed the on-
duty Police Officer at Khagaria Police Station about the
incident. The said information was recorded by Sub-inspector,
Gunjan Kumar in the General Diary Book of the Police Station
and he came to the residential house of the Petitioner within five
minutes. He took charge of the said Homeguards and his fire
arm and ammunition and brought him to the Police Station.
Within 10 minutes, the said Homeguard started to vomit and he
was sent to Sadar Hospital, Khagaria for medical treatment.
Ultimately, he died at P.M.C.H., Patna. On the basis of the
materials available on record, the IO submitted charge-sheet
against the Petitioner under Sections 341 / 342 / 323 / 337 /
338 / 304 / 34 of the Indian Penal Code in the Court of Learned
Chief Judicial Magistrate, Khagaria. The Learned Magistrate
also took cognizance of the offences. At this stage the F.I.R.,
order of charge-sheet and the order of taking cognizance cannot
be set aside.
Patna High Court CR. WJC No.530 of 2023 dt.01-05-2024
20. Having heard the Learned Counsels for the
Petitioner and the State and on careful consideration of the
submissions made by Learned Counsels and the documents and
case diary relied upon by them, this Court finds that the
Petitioner has prayed for quashing of the F.I.R. and charge-sheet
filed against him on the following grounds:
(i) The alleged incident took place on the 1st
February, 2022 at about 06: 15 A.M. Immediately after the
incident, the Petitioner informed the Superintendent of Police
and the District and Sessions Judge, Khagaria that the
Homeguard (victim) abused him when he asked him as to why
the entrance of the official residence of the Petitioner remained
unattended and was not closed. The victim abused him saying
that it was his duty to guard the house from the guard room and
he was not responsible for closing entrance gate. There was
some altercation and the victim threatens him to kill by gunshot,
touching his service rifle on the chest of the Petitioner. In order
to save himself, he snatched away the rifle from the hands of the
Homeguard.
(ii) Other side of the evidence collected by the
Police during investigation is that on hearing of sound of
altercation between the Petitioner and the victim, other
Patna High Court CR. WJC No.530 of 2023 dt.01-05-2024
Homeguards, who were posted on duty in the official residence
of the Petitioner rushed to the place of occurrence and found
that the Petitioner and his wife were assaulting the victim. The
victim was lying on the ground. The Petitioner was assaulting
him with the help of the butt of the rifle and his wife was
assaulted him with a piece of brick.
21. The Investigating Officer examined the
Homeguards and recorded their statements under Section 161 of
the Cr.P.C. He also obtained the inquiry report of Public
Grievance Redressal Forum, Khagaria. The Investigating
Officer also collected the post-mortem report, initial injury
report and subsequent opinion of the Medical Officer on the
basis of the CT scan report of the victim and submitted charge-
sheet for the offences punishable under sections 341 / 342 /
323 / 337 / 338 / 304 / 34 of the Indian Penal Code.
22. At this stage, this Court is called upon to
determine whether materials on record disclose a prima facie
case, leading to a triable offence or not?
23. The law with regard to exercise of jurisdiction
under Section 482 CrPC to quash complaints and criminal
proceedings have been successfully summarized by the Hon'ble
Supreme Court in the case of Indian Oil Corporation and
Patna High Court CR. WJC No.530 of 2023 dt.01-05-2024
NEPC India Limited, reported in (2006) 6 SCC 736 after
considering the earlier precedents. It will be apposite to refer to
the following observations of the Hon'ble Supreme Court in the
said case as hereunder:-
"12. The principles relating
to exercise of jurisdiction under Section
482 of the Code of Criminal Procedure to
quash complaints and criminal
proceedings have been stated and
reiterated by this Court in several
decisions. To mention a few--Madhavrao
Jiwajirao Scindia v. Sambhajirao
Chandrojirao Angre [(1988) 1 SCC 692 :
1988 SCC (Cri) 234] , State of
Haryana v. Bhajan Lal [1992 Supp (1)
SCC 335 : 1992 SCC (Cri) 426] , Rupan
Deol Bajaj v. Kanwar Pal Singh
Gill [(1995) 6 SCC 194 : 1995 SCC (Cri)
1059] , Central Bureau of
Investigation v. Duncans Agro Industries
Ltd. [(1996) 5 SCC 591 : 1996 SCC (Cri)
1045] , State of Bihar v. Rajendra
Agrawalla [(1996) 8 SCC 164 : 1996
SCC (Cri) 628] , Rajesh Bajaj v. State
NCT of Delhi [(1999) 3 SCC 259 : 1999
SCC (Cri) 401] , Medchl Chemicals &
Pharma (P) Ltd. v. Biological E.
Ltd. [(2000) 3 SCC 269 : 2000 SCC (Cri)
Patna High Court CR. WJC No.530 of 2023 dt.01-05-2024
615] , Hridaya Ranjan Prasad
Verma v. State of Bihar [(2000) 4 SCC
168 : 2000 SCC (Cri) 786] , M.
Krishnan v. Vijay Singh [(2001) 8 SCC
645 : 2002 SCC (Cri) 19] and Zandu
Pharmaceutical Works Ltd. v. Mohd.
Sharaful Haque [(2005) 1 SCC 122 :
2005 SCC (Cri) 283] . The principles,
relevant to our purpose are:
(i) A complaint can be
quashed where the allegations made in
the complaint, even if they are taken at
their face value and accepted in their
entirety, do not prima facie constitute any
offence or make out the case alleged
against the accused.
For this purpose, the
complaint has to be examined as a whole,
but without examining the merits of the
allegations. Neither a detailed inquiry
nor a meticulous analysis of the material
nor an assessment of the reliability or
genuineness of the allegations in the
complaint, is warranted while examining
prayer for quashing of a complaint
(ii) A complaint may also be
quashed where it is a clear abuse of the
process of the court, as when the criminal
proceeding is found to have been initiated
with mala fides/malice for wreaking
Patna High Court CR. WJC No.530 of 2023 dt.01-05-2024
vengeance or to cause harm, or where the
allegations are absurd and inherently
improbable.
(iii) The power to quash
shall not, however, be used to stifle or
scuttle a legitimate prosecution. The
power should be used sparingly and with
abundant caution.
(iv) The complaint is not
required to verbatim reproduce the legal
ingredients of the offence alleged. If the
necessary factual foundation is laid in the
complaint, merely on the ground that a
few ingredients have not been stated in
detail, the proceedings should not be
quashed. Quashing of the complaint is
warranted only where the complaint is so
bereft of even the basic facts which are
absolutely necessary for making out the
offence.
(v) A given set of facts may
make out: (a) purely a civil wrong; or (b)
purely a criminal offence; or (c) a civil
wrong as also a criminal offence. A
commercial transaction or a contractual
dispute, apart from furnishing a cause of
action for seeking remedy in civil law,
may also involve a criminal offence. As
the nature and scope of a civil proceeding
are different from a criminal proceeding,
Patna High Court CR. WJC No.530 of 2023 dt.01-05-2024
the mere fact that the complaint relates to
a commercial transaction or breach of
contract, for which a civil remedy is
available or has been availed, is not by
itself a ground to quash the criminal
proceedings. The test is whether the
allegations in the complaint disclose a
criminal offence or not."
24. The learned Advocate for the Petitioners, at the
outset, has criticized the prosecution case on the ground of delay
in registering FIR, bearing Khagaria Muffasil P.S. Case No. 157
of 2022 against the Petitioners. It was vehemently urged by the
learned counsel for the Petitioners that when the son of the
deceased submitted a written complaint on 2 nd February 2022,
why is there an unexplained delay of about 20 days in
registering the case against the Petitioners? The unexplained
delay speaks a volume regarding concoction and falsity of
criminal case.
25. It is, however, found from the case diary that
delay in registering the case was caused due to the reason that
the Police authority wanted permission for registration of case
from the District and Sessions Judge, Khagaria and then from
the High Court of Patna. The High Court communicated its
decision, permitting the Police Authority to register a case
Patna High Court CR. WJC No.530 of 2023 dt.01-05-2024
following the guidelines enumerated in the case of Delhi
Judicial Service Association (supra) on the 21st February 2022.
The said communication was received by the Superintendent of
Police, Khagaria on the 23rd February, 2022 and immediately
thereafter the case was registered. Therefore, there was no
intentional latches on the part of the Police Authority to delay in
registering the case against the Petitioner.
26. In a very recent decision in the case of
Hariprasad v. State of Chhattisgarh, reported in (2024) 2 SCC
557, the Hon'ble Supreme Court condoned the delay of one year
in filing FIR and registering a case against the accused under
Section 302 of the Indian Penal Code. In the said report, the
victim was found lying on the Varandha of his house in the early
morning by his wife and daughter. His wife and daughter asked
him as to why he was lying on the Varandha. The victim replied
that the accused gave something to drink to him and after
consuming the said drink he became ill. He was admitted to the
hospital and subsequently expired. In the postmortem report, the
Autopsy Surgeon failed to give any conclusive opinion as to the
cause of his death. However, viscera of the deceased was sent
for forensic examination. The chemical examination report
suggested presence of poison in the stomach and kidney of the
Patna High Court CR. WJC No.530 of 2023 dt.01-05-2024
victim. The chemical examination report was received after one
year of the incident. Thereafter, FIR was accepted against the
accused and the Hon'ble Supreme Court condoned the delay in
lodging the F.I.R.
27. In the instant case also, the District
Administration of Police was at affix regarding as to whether a
criminal case can be registered against a member of Bihar
Superior Judicial Service. The District Police Administration
sought for the opinion of the District and Sessions Judge and the
High Court. The High Court through the Registrar General
permitted the Police Authority to register a case on the basis of
the complaint submitted by Gautam Kumar by a letter, dated 21st
February, 2022. The Superintendent of Police, Khagaria
received the said letter and immediately, thereafter, on the 23 rd
of February 2022, the case was registered.
28. Under such circumstances, this Court, at the
initial stage of the proceeding, is not in a position to hold that
due to such delay prosecution case suffers from concoction. At
the initial stage of quashing of FIR and charge-sheet, this Court
is doubtful as to whether the Court can look into the inherent
contradictions in the statements made by other three
Homeguards who were posted at the relevant point of time as
Patna High Court CR. WJC No.530 of 2023 dt.01-05-2024
Homeguards of the Principal Judge, Family Court at Khagaria.
29. In Madan Rajak v. State of Bihar and Ors.,
reported in (2015) 16 SCC 269, the Hon'ble Supreme Court was
pleased to hold that at the stage of determination of an
application for quashing of a criminal proceeding under Section
482 of the CrPC (Article 226 of the Constitution), the only
question to be determined is whether material on record
disclosed a prima facie case, leading to triable offence. It is not
possible to overlook statements of witnesses under Section 161
Cr.P.C. Reason for delayed recording of statements is also
disclosed in the Daily Diary Report. Evaluation of truth and
falsity thereof, will be possible only after evidence is recorded.
At the present juncture, to quash the proceedings in exercise of
the power vested in High Court was clearly not made out.
Accordingly, the order of quashing of criminal proceedings was
set aside and the accused was directed to face the criminal trial.
In paragraph 10 of the said judgment, it is recorded by the
Hon'ble Supreme Court:-
"10. It is not necessary for
us to evaluate the statements of the
witnesses recorded under Section 161 of
the Code of Criminal Procedure. The only
question to be determined is, whether the
statements disclosed a prima facie case,
Patna High Court CR. WJC No.530 of 2023 dt.01-05-2024
leading to an offence triable under the
provisions of the Penal Code. We are of
the considered view, that it is not possible
for us to overlook the statements of the
witnesses recorded, reference to some of
which, has been indicated in the instant
order. The reason for the delayed
recording of statements is also disclosed
in the daily diary report. The evaluation
of the truth or falsity thereof, will be
possible only after evidence is recorded,
in the matter. At the present juncture to
quash the proceedings initiated against
the accused by quashing the summoning
order dated 6-4-2011 in exercise of the
power vested in the High Court under
Section 482 CrPC is clearly not made
out."
30. In the instant case, the learned Advocate for the
Petitioners submits that written complaint submitted by Gautam
Kumar did not contain the alleged incident of altercation
between Petitioner and his deceased father on the issue, as to
why entrance gate of Petitioner remain unattended and opened.
On the contrary, the informant stated that the Judge and his wife
used to ask his father to sweep and clean official residence of
the Petitioner daily. His father denied to perform such work.
Then, Petitioner and his wife assaulted him with the piece of
Patna High Court CR. WJC No.530 of 2023 dt.01-05-2024
brick and fists and slaps, and also pushed him, as a result, he fell
down and received serious injury on his head. It is also stated by
the complainant that he heard the incidence from the Satyendra
Paswan, Homeguard. The said Satyendra Paswan and other
Homeguards, who were posted in the residence of the Petitioner
as Homeguards stated in their statements under Section 161 of
the Code of Criminal Procedure as well as before the Enquiry
Committee of Public Grievance Redressal Forum that the victim
was assaulted by the Petitioner with the help of butt of rifle and
piece of brick.
31. The learned Advocate for the Petitioners invites
this Court to consider the inherent contradictions in the
statements made by the alleged witnesses to the Informant and
subsequently to the Enquiry Officers of Public Grievance
Redressal Forum and then to the Investigating Officer. In view
such contradictions, the statements of the alleged eye-witnesses
can not be taken into consideration and those should be
discarded at this stage.
32. This Court is not in a position to discard the
statements of the witnesses recorded under Section 161 of
Cr.P.C. at this stage. The statement under Section 161 of the
Cr.P.C. are not to be treated as evidence of witnesses. The said
Patna High Court CR. WJC No.530 of 2023 dt.01-05-2024
statements can only be taken into account for contradictions
with the subsequent statements made by the witnesses in the
Court during evidence. Therefore, at the stage of quashing,
uncontroverted statements under Section 161 of the Cr.P.C.
cannot be said to be falsely made by the alleged eye-witnesses
and the prosecution story was subsequently developed.
33. Now, let me consider the medical evidence
collected by the I.O. in connection with this case.
34. The victim was first examined by Dr. Shubham
Kumar Sinha at Sadar Hospital, Khagaria on 1 st of February,
2022 and he recorded the following injuries on the person of the
deceased:-
(i) Slight abrasion on the base of nose.
(ii) Slight abrasion on the left middle finger.
35. At the time of his examination, the patient was
unconscious. It is also recorded that the patient was very
serious, hence referred to higher centre. Further reports are
awaited from higher centre.
36. The Informant was not supplied with any injury
report or bedhead ticket of the deceased maintained by the
Ishwar Hospital, Begusarai. The victim died on 14 th of February,
2022 and his post-mortem was done by the Associate Professor,
Patna High Court CR. WJC No.530 of 2023 dt.01-05-2024
Forensic Medicine of PMCH, Patna. During post-mortem
examination, the Autopsy Surgeon did not find any injury,
external or internal, in the body of the deceased. According to
the Autopsy Surgeon, the cause of death of the victim was
Cerebral Anoxia resulting from Intracranial Hemorrhage. On
deception, it is found left sided intra cerebral hemorrhage, basal
ganglia, mid bran, pons with intra ventricular extension. There
was patchy sub-arachanoid hemorrhage both side cerebral
surface too.
37. Paragraph 92 of the case-diary dated 19 th of
September, 2022 shows that the Investigating Officer produced
NCCT Brain of the victim done by Mediversal Diagnostic,
Begusarai and the Medical Officer found a non-displaced linear
fracture on occipital bone near midline. The CT-scan was done
on 1st of February, 2022 itself at Begusarai. The CT-scan also
showed acute subdural hematoma at left fronto parietal sub
clavarian with right fronto-parietal sub clevarian. Bleed in
subarachnoid component. M.I. - Mole on Jugular nothc (as
written in the copy of the case-diary produced by the
prosecution).
38. The Medical Officer opined that the injury of
the deceased was caused by hard and blunt substance. The
Patna High Court CR. WJC No.530 of 2023 dt.01-05-2024
injury may also be caused due to fall on hard surface.
39. At this stage, it is not possible for the Court to
consider as to whether fracture found on the occipital bone of
the deceased was caused due to physical assault or the victim
fell down on the ground when the Petitioner snatched away the
rifle from the hands of the victim. It is also not possible for the
Court to consider as to whether the Autopsy Surgeon found non-
displaced linier fracture on the occipital bone of the head of the
victim at the time of post-mortem examination or the
supplementary injury report was manufactured by the
prosecution. Answer to such question can only be ascertained on
examination and cross-examination of the Medical Officers
during the trial of the case.
40. From the materials in the case-diary, the Court
finds that the offences alleged to have been committed by the
Petitioner were prima facie made out from the complainant's
F.I.R., statement of witnesses, medical documents, charge-sheet
etc. The veracity of the statements of the witnesses before the
Investigating Officer can only be considered at the time of trial
during their examination. At this stage, this Court is not in a
position to quash the criminal proceedings against the
Petitioner.
Patna High Court CR. WJC No.530 of 2023 dt.01-05-2024
41. Accordingly, the instant writ petition is
considered and dismissed, on contest.
42. There shall, however, be no order as to costs.
(Bibek Chaudhuri, J)
uttam/skm-
AFR/NAFR NAFR
CAV DATE 01.04.2024
Uploading Date 01.05.2024
Transmission Date 01.05.2024
