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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  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  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  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  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  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]   

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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

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