Hemkant Jha @ Hemant Jha vs The State of Bihar and Another

Rekha Kumari, J.—This is an application filed u/s 482 of the Code of Criminal Procedure for quashing the order dated 12.8.2004 passed by the 2nd Additional Sessions Judge, Darbhanga in Criminal Revision No. 1 of 2004 by which he has set aside the order dated 5.4.2003 passed by the learned S.D.J.M., Biraul at Benipatti under which he had allowed the prayer of the I.O. of Kuseshwar Asthan P.S. Case No. 11/2003 to amalgamate Kuseshwar Asthan P.S. Case No. 44/2003 with Kuseshwar Asthan P.S. Case No. 11/2003 for the purpose of investigation. A prayer has also been made in the application for setting aside the order dated 31.8.2004 passed by the learned Sub-divisional Judicial Magistrate, Biraul in pursuance of the order passed in revision application under which he has given direction to investigate the case separately. Heard both sides.

It appears that in the night between 30.1.2003 and 31.1.2003 Chowkidar Hari Kishun Paswan while on patrolling duty found a dead body lying near the house of one Hemant Jha which was identified to be of one Md. Islam. On the hearsay statement of the Chowkidar, Fardbeyan was recorded at Kusheshwar Asthan Police Station on the basis of which K. Asthan P.S. Case No. 11/2003 dated 31.1.2003 was registered against unknown villagers u/s 304 of the Indian Penal Code. Thereafter on 7.2.2003 a complaint was filed before the S.D.J.M., Biraul by Opposite Party No. 2 Shakila Khatoon, wife of Md. Islam for taking action under sections 302/ 34, 364 and 120B of the Indian Penal Code against ten named accused persons for the abduction and murder of her husband. The complaint petition was also forwarded to the Officer Incharge of Kusheshwar Asthan Police Station for instituting a case and for investigation. Accordingly K. Asthan P.S. Case No. 44/2003 dated 25.3.2003 was registered under sections 302, 364 and 120B/34 of the Indian Penal Code.

In course of investigation of the case as it was found that both the cases relate to the death of the same person and the witnesses were the same, the I.O. filed a petition before the learned S.D.J.M. for permitting him to amalgamate Kuseshwar Asthan P.S. Case No. 44/2003 with K. Asthan P.S. Case No. 11/2003 for the purpose of investigation. The learned S.D.J.M. by his order dated 5.4.2003 allowed the prayer of the I.O. The informant i.e. Complainant-Opposite Party No. 2 of K. Asthan P.S. Case No. 44/2003 preferred a Criminal Revision against the above order. The learned Additional Session Judge by the impugned order in the revision set aside the order of the learned S.D.J.M. dated 5.4.2003. After communication of the order passed in revision, the learned S.D.J.M., Biraul by the impugned order dated 31.8.2004 ordered to issue direction to investigate the case separately.

As both the cases relate to the same subject matter, I think there was no reason for interference by the learned Additional Sessions Judge with the order of the learned S.D.J.M., Biraul. It also appears from the application u/s 482 Cr.P.C. as well as Annexure-4 that final form has already been submitted by the I.O. amalgamating K. Asthan P.S. Case No. 44/2003 with K. Asthan P.S. Case No. 11/2003 and the I.O. has found the case true u/s 304 of the Indian Penal Code but has failed to trace out the culprits. Therefore, the order dated 31.8.2004 passed by the learned S.D.J.M. has ceased to have any effect.

Under the above circumstance, the learned Sub-divisional Judicial Magistrate would either accept the final form or differ from the opinion of the I.O. and take cognizance and issue processes against the persons against whom there is material in the case diary or order for further investigation. Alternatively, without issuing process or dropping the proceedings, proceed to act u/s 200 Cr.P.C. by taking cognizance of the offence on the basis of the complaint originally submitted to him by Opp. Party No. 2 Shakila Khatoon or on the basis of any protest petition in the nature of the complaint filed by her and proceed to record the statement upon oath of the complainant and the witnesses presently and thereafter decide whether the complaint should be dismissed or processes would be issued. With the above observation, this app-lication for quashing stands disposed of.