Full Judgment Text
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1612 OF 2015
(Arising from SLP(Crl.) No.9944/2013)
Madan Razak ..Appellant
versus
State of Bihar and others ..Respondents
J U D G M E N T
JAGDISH SINGH KHEHAR,J.
Leave granted.
2. Saraswati Kumari, the daughter of the appellant (also the
complainant) in this case is stated to have gone to attend a “mela”
(festival) along with her brother - Sunny Devol, and her cousin
brother - Devender Razak, on 21.10.2007. Saraswati Kumari did not
return from the “mela”. Her dead body was however recovered on
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22.10.2007. Madan Razak, the father of Saraswati Kumari,
identified her body at police station, Bibhutipur, on 23.10.2007.
3. The record of this case reveals, that a Chawkidar -
Bindeshwari Paswan, lodged a first information report bearing no.
180 of 22.10.2007, when the body of a half naked girl-child was
recovered. A perusal of the report reveals, that the child of
about 13/14 years, whose body was recovered, was not identified
(and was referred to as – unknown girl, in the first information
report). The first information report also reveals, strangulation
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marks, as also, the presence of semen and blood on the genitals of
the deceased. The aforesaid first information report dated
22.10.2007 further indicated that froth was emerging from the mouth
of the deceased.
4. Consequent upon the identification of his daughter
Saraswati Kumari, Madan Razak, the appellant-complainant addressed
a letter dated 23.10.2007 to the Station House Officer, Bibhutipur,
seeking custody of the dead body, so as to enable him to cremate
the same at his residence. The dead body was accordingly released
to the father - Madan Razak, for cremation.
5. The next chronologically relevant fact took place only on
6.11.2007, when the complainant Madan Razak addressed two letters,
a communication to the Collector, Smastipur, and another, to the
Superintendent of Police, Smastipur. In the letter addressed to
the Collector, Smastipur, he referred to the first information
report bearing no.180 of 22.10.2007, and sought compensation of
Rs.2,00,000/- (Rupees two lakh only) on account of the brutal rape
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and murder of his daughter – Saraswati Kumari. In the second
communication to the Superintendent of Police, Smastipur, he
identified the persons who had allegedly forcibly kidnapped his
daughter – Saraswati Kumari, whilst she was returning from the
“mela” on 21.10.2007. He requested for action against all the five
identified accused.
6. Based on the complaint made by Madan Razak, statements of
a number of witnesses were recorded by the police. However no
action was taken. Based on the factual position disclosed by the
complainant in his communication dated 6.11.2007, he filed a
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private complaint bearing no. 970/2007 dated 5.12.2007, before the
Additional Chief Judicial Magistrate, Rasoda. The above complaint
was marked for investigation by the above Court. Investigation was
accordingly conducted jointly for the allegations contained in FIR
No. 180 of 22.10.2007, and the private complaint bearing no.
970/2007 dated 5.12.2007. The daily case report with reference to
the complaint, referred to above, depicting the investigation made
by the Sub-Divisional Police Officer, Rosada, reveals the names of
the witnesses whose statements were recorded under Section 161 of
the Code of Criminal Procedure, as also, the details of the
investigation.
7. The above daily case report inter alia highlights, the
statement of Krishnamurti Mahto, the then Sarpanch of village
panchayat Bariya, who had visited the spot from where the dead body
of Saraswati Kumari was recovered, but could not identify her.
Likewise, the statement of Chander Shekar, Sub-Sarpanch, village
Yogia, who had also gone to the place from where the body was
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recovered, but had also failed to identify the deceased. To the
same effect, the statement of Arvind Kumar Das was recorded. He too
could not identify the deceased. All these witnesses whose
statements were recorded under Section 161 of the Code of Criminal
Procedure were named by Madan Razak, as the persons who had
kidnapped Saraswati Kumari on 21.10. 2007. In addition, it was
pointed out, that they were teachers of the deceased Saraswati
Kumari, as they were tutors engaged by the Nutan Coaching Centre,
which was attended by Sarastawi Kumari. The inference sought to be
drawn was, that the dead body was not identified, to delay the
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emergence of the truths, for self-serving and extraneous
considerations. And, also to misdirect the investigation.
8. It is also relevant to mention, that the statement of
Sunny Devol, the brother of the deceased who had accompanied the
deceased to the “mela” on 21.10.2007, was also recorded under
Section 161 of the Code of Criminal Procedure. He too indicated
the identity of the persons who had kidnapped his sister Saraswati
Kumari, while they were on the way back, from the “mela” on
21.10.2007. All the above facts were taken into consideration,
when the Additional Chief Judicial Magistrate, Rospera, issued
summons, in the process of taking cognizance in the matter.
9. The summoning order dated 6.4.2011, came to be assailed
by four of the accused, namely, Arvind Kumar Das, Ramji Mahto,
Krishnamurti Mahto and Jawala Singh before the High Court of
Judicature at Patna, through Criminal Miscellaneous No. 16254 of
2011. The High Court while exercising its power under Section 482
of the Code of Criminal Procedure, vide the impugned order dated
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26.08.2013 was pleased to quash the summoning order dated 6.4.2011.
10. A perusal of the impugned order reveals, that the same
was passed on the sole consideration, that the statement of the
witnesses recorded by the police were doubtful, as they had been
tendered about a month after the incident. The statements were
recorded, we were informed, for the first time on 20.11.2007. It
was submitted, that prior to 20.11.2007, the names of the alleged
accused were not disclosed. It was submitted, that the names of
the accused were known on the very day on which the incident had
occurred (on 21.10.2007), as the brother of the deceased - Sunny
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Devol, had allegedly witnessed the alleged accused forcibly taking
away his sister – Saraswati Kumari. This position has been
repudiated. The submission is shown to be incorrect, by making a
reference to the letter addressed by Madan Razak, the appellant-
complainant to the Superintendent of Police, Smastipur on
6.11.2007, wherein, the names of the accused were clearly
mentioned.
11. It is not necessary for us to evaluate the statements of
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, leading to an offence
triable under the provisions of the Indian 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
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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 of the
Cr.P.C. is clearly not made out.
12. Since prima facie, commission of offences under the
Indian Penal Code, are shown to be emerging from the statements of
witnesses recorded (as is apparent from the order dated 6.4.2011
passed by the Additional Chief Judicial Magistrate, Rosera), we are
satisfied, that the impugned order dated 26.08.2013, passed by the
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High Court deserves to be set aside. The same is accordingly hereby
set aside.
13. The accused are directed to appear before the Additional
Chief Judicial Magistrate, Rosera, in furtherance of the summoning
order dated 6.4.2011 on 21.01.2016.
14. Needless to mention, that observations recorded in the
instant order, shall not be treated as an expression of an opinion,
on the merits of the controversy, one way or the other.
The instant appeal is allowed in the aforesaid terms.
…..................J.
[JAGDISH SINGH KHEHAR]
NEW DELHI; …...................J.
DECEMBER 01, 2015 [R. BANUMATHI]
JUDGMENT
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ITEM NO.3 COURT NO.4 SECTION IIA
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
PETITIONS FOR SPECIAL LEAVE TO APPEAL (Criminal) No(s). 9944/2013
(from the judgment and order dated 26.08.2013 in Criminal
Miscellaneous No. 16254 of the HIGH COURT OF JUDICATURE AT PATNA)
MADAN RAZAK Appellant(s)
VERSUS
STATE OF BIHAR & ORS Respondent(s)
(with office report)
Date : 01/12/2015 This petition was called on for hearing today.
CORAM :
HON'BLE MR. JUSTICE JAGDISH SINGH KHEHAR
HON'BLE MRS. JUSTICE R. BANUMATHI
For Petitioner(s) Mr. Pradeep Kumar Yadav, Adv.
Mr. Ashish Goel, Adv.
for Ms. Manju Jetley,AOR
For Respondent(s) Mr. R. Sathish,Adv.
Mr. Mohandas K.K., Adv.
Mr. Shivam Singh, Adv.
for Mr. Gopal Singh,AOR
UPON hearing the counsel the Court made the following
O R D E R
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Leave granted.
The appeal is allowed in terms of the Reportable
judgment, which is placed on the file.
(Renuka Sadana) (Parveen Kr. Chawla)
Court Master AR-cum-PS
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