Ram Nath Prasad vs State of Jharkhand

Rongon Mukhopadhyay, J—Heard learned counsel appearing on behalf of the petitioner and the learned counsel appearing on behalf of the State. In this application, the petitioner has prayed for quashing the order dated 28.11.2002 passed by the learned Chief Judicial Magistrate, Gumla in connection with Basia P.S. Case No. 19 of 1998 corresponding to G.R. No. 234 of 1998 by which cognizance has been taken for the offence u/S. 304 of the Indian Penal Code (IPC).

The prosecution story as would appear from the First Information Report (FIR) instituted by the opposite party No. 2 is that the brother of the informant left his home in the night of 28.4.1998 in a drunken condition. On being informed, the informant searched for his brother, but he could not be traced out. It has been alleged that in the following morning in course of search, the informant found his brother knocking the door of one Bhola Singh. The informant''s brother was working as a cook in the house of Bhola Singh. The informant could find some injuries on the person of his brother and on being asked, his brother disclosed that in the previous night while he in an intoxicated condition was knocking the door of Bhola Singh and Ram Nath Singh, as a result of which both had assaulted him. It has also been stated that the brother of the informant was admitted in Basia Hospital on 29-4-1998 and he was referred to Ranchi, and ultimately on 1-5-1998 his brother died in the house itself.

After investigation was conducted, a final form was submitted by the police as no evidence was found against him. After submission of the final form, notice was issued to the informant and thereafter vide order dated 28-11-2002, the learned Chief Judicial Magistrate, Gumla disagreed with the findings of the investigating officer and took cognizance against the petitioner and one Bhola Singh for the offence u/S. 304, IPC.

The learned counsel for the petitioner while assailing the impugned order dated 28.11.2002 has submitted that the petitioner, who was Block Education Extension Officer at the relevant point of time, has been falsely implicated in the present case. He has submitted that the police had conducted a proper investigation and even from the statement of the informant as well as the wife of deceased it appears that they have categorically stated that the deceased died on account of Jaundice and not on account of any assault. He has further submitted that the post-mortem report also reveals that the deceased was suffering from Jaundice. He has also submitted that while taking cognizance, it has been clearly stated on behalf of the informant that the final report submitted by the police may be accepted as no case is made out against the accused persons. He, therefore, submits that since the informant does not want to proceed with the case, there will be no possibility of conviction of the petitioner and as such in view of the averments made by the informant, the entire criminal proceeding of the present case should be quashed. In this context, he has referred to a judgment delivered in the case of Narinder Singh and Others Vs. State of Punjab and Another, (2014) AIRSCW 2065 : (2014) CriLJ 2436 : (2014) 4 JT 573 : (2014) 4 SCALE 195 : (2014) 6 SCC 466 . He has also referred to the case of Shiji @ Pappu and Others Vs. Radhika and Another, AIR 2012 SC 499 : (2012) CriLJ 840 : (2012) 1 JCC 101 : (2011) 13 JT 180 : (2012) 167 PLR 108 : (2012) 1 RCR(Criminal) 9 : (2011) 12 SCALE 588 : (2012) AIRSCW 445 .

The learned counsel for the State on the other hand has submitted that the learned Chief Judicial Magistrate, Gumla while taking cognizance against the petitioner and disagreeing with the final report submitted by the police has passed a reasoned order and has considered the entire materials available on the case diary and therefore, it cannot be said that no evidence is made out against the petitioner. He has further submitted that even assuming though not admitting that a compromise has been arrived at between both the parties, but since the offence is a non-com-poundable offence, the provisions of Section 320 of the Code of Criminal Procedure (Cr.P.C.) cannot be invoked in a non-com-poundable offence.

After hearing the learned counsel for the petitioner and after going through the records, I find that after institution of the F.I.R., the informant, opposite party No. 2, for reasons best known to him, has taken a consistent stand that he does not want to proceed with the case and that the deceased had died on account of Jaundice and not on account of assault made by the petitioner and another accused Bhola Singh. The prosecution cannot be at the whims and fancies of the informant. The informant while instituting the F.I.R. was well aware of the facts and specifically named this petitioner as one of the persons who had been named by his brother prior to his death, as having assaulted the deceased. The informant has changed colour thereafter like of chameleon and has supported the case of the defence. It would also be evident from the order taking cognizance, in which it was stated on behalf of the informant that no case is made out to proceed against the petitioner and that the final form should be accepted.

The impugned order dated 28-11-2002 reveals that the learned Chief Judicial Magistrate, Gumla has carefully considered the entire evidence which had been recorded by the Investigating Officer u/S. 161, Cr.P.C., as several witnesses have supported the factum of occurrence. It further appears that the Sub Divisional Police Officer, Gumla while supervising the case had given a note that there are sufficient evidences on record against the accused persons including this petitioner for the offence u/S. 304, I.P.C., but the office of the Inspector General of Police, Chhota-Nagpur, Ranchi had directed the Superintendent of Police, Gumla to supervise the case himself and on his direction final report was submitted stating lack of evidence. Moreover, the post-mortem report which finds'' mention in Paragraph-13 of the case diary reveals several injuries on the deceased including rupture of liver and rupture of spleen which seems to have been on account of assault inflicted on him and thus it cannot be said that the deceased had died on account of jaundice.

In the case, reported in Shiji @ Pappu and Others Vs. Radhika and Another, AIR 2012 SC 499 : (2012) CriLJ 840 : (2012) 1 JCC 101 : (2011) 13 JT 180 : (2012) 167 PLR 108 : (2012) 1 RCR(Criminal) 9 : (2011) 12 SCALE 588 : (2012) AIRSCW 445 , the same was with respected quashing of the proceedings by exercising the jurisdiction u/S. 482, Cr.P.C. and it was held therein that the inherent powers of the High Court u/S. 482, Cr.P.C. are not for that purpose, controlled by Section 320, Cr.P.C. The aforesaid judgment was based on the fact that during the pendency of the criminal proceeding the parties had settled the disputes amicably. In the present case, the informant had retracted from his oral statement before the police for reasons best known to him and as such the same cannot be said to be a compromise so as to invoke the jurisdiction of Section 482, Cr.P.C. in a non-compoundable case. In the case reported in Narinder Singh and Others Vs. State of Punjab and Another, (2014) AIRSCW 2065 : (2014) CriLJ 2436 : (2014) 4 JT 573 : (2014) 4 SCALE 195 : (2014) 6 SCC 466 , the Hon''ble Supreme Court while considering the powers u/S. 482, Cr.P.C. for quashment of non-compoundable offences had laid down guidelines in Para-graph-29 of the said judgment and relevant Paragraph for the purposes of the present case is Paragraph-29.3 which is quoted hereinbelow:--

"29.3. Such a power is not to be exercised in those prosecutions which involve heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. Such offences are not private in nature and have a serious impact on society. Similarly, for the offences alleged to have been committed under special statute like the Prevention of Corruption Act or the offences committed by public servants while working in that capacity are not to be quashed merely on the basis of compromise between the victim and the offender."

After considering the guidelines laid down above by the Hon''ble Supreme Court in the case of Narinder Singh and Others Vs. State of Punjab and Another, (2014) AIRSCW 2065 : (2014) CriLJ 2436 : (2014) 4 JT 573 : (2014) 4 SCALE 195 : (2014) 6 SCC 466 , I find that the offence which has been committed by the petitioner is a serious offence and has a direct impact on the society. Thus this case falls within the exception as indicated by the Hon''ble Supreme Court, as the same is against the societal interest. Considering all the aspects in its, totality, there being no merit in this application, this criminal miscellaneous petition, is accordingly dismissed.