MADAN RAZAKversusSTATE OF BIHAR AND OTHERS

                   [2015] 14 S.C.R. 211


                     MADAN RAZAK                                A
                             v.
             STATE OF BIHAR AND OTHERS
            (Criminal Appeal No. 1612 of 2015)
                                                                B
                  DECEMBER 01, 2015
 [JAGDISH SINGH KHEHAR AND R. BANUMATHI, JJ.]
       Code of Criminal Procedure, 1973 - s. 482- Power of
High Court under~ Case of kidnapping, rape and murder of        C
a girl aged 13114 years - Father filing complaint before
Additional Chief Judicial Magistrate - Investigation
conducted - Recording of statement of witnesses u/s. 161
Cr.P. C. - Summoning order against four accused- Challenge
to - High Court quashed the summoning order on the ground       D
that the statement of the witnesses recorded by the police
were doubtful since they had been tendered about a month
after the incident- "On appeal, held: Statements of witnesses
recorded, disclose a prima facie case, leading to an offence
triable under the pro"visions of the Penal Code, as such        E
cannot be overlooked - Reason tor the delayed recording of
statements disclosed in the daily diary report - Evaluation
of the truth or falsity thereof, would be possible only after
evidence is recorded, in the matter-At the present juncture
to quash the proceedings initiated against the accused by       F
quashing the summoning order in exercise of the power
vested in the High Court uls. 482 not made out - Order passed
by the High Court set aside - Accused to appear before the
Judicial Magistrate, in furtherance of the summoning order.
    CRIMINAL APPELLATE JURISDICTION : Criminal G
Appeal No. 1612 of 2015.
     From the Judgment and Order dated 26.08.2013 of the
High Court of Judicature at Patna in Criminal Miscellaneous
No. 16254 of 2011.                                          H
                            211
   212        SUPREME COURT REPORTS                 [2015] 14 S.C.R.


    A          Pradeep Kumar Yadav, Ashish Goel (For Ms. Manju
         Jetley) for the Appellant.
              R. Sathish, Mohandas K. K., Shivam Singh (For Gopal
         Singh) for the Respondents.
    B         The Judgment of the Court was delivered by
              JAGDISH SINGH KHEHAR, J. 1. Leave granted.
            2. Saraswati Kumari, the daughter of the appellant (also
      the complainant) in this case is stated to have gone to attend
    C 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 Hazak,
      the father of Saraswati Kumari, identified her body at police
    D 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-
    E 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 marks, as also, the presence of semen
    F 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 daug~ter
·· . G 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,
     H for cremation.
     MADAN RAZAK v. STATE OF BIHAR AND OTHERS                        213
           [JAGDISH SINGH KHEHAR, J.]

      5. The next chronologically relevant fact took place only A
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 B
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 C
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,               D
  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 private complaint bearing no. 970/
  2007 dated 5.12.2007, before the Additional Chief Judicial         E
  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       F
. 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,      G
 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
                                                                     H
214        SUPREME COURT REPORTS                   (2015] 14 S.C.R.


A 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
B 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
C 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
D was not identified, to delay the 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
 E 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
 F 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
G 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
 H
     MADAN RAZAK v. STATE OF BIHAR AND OTHERS                   215
           [JAGDISH SINGH KHEHAR, J.]

Procedure, vide the impugned order dated 26.08.2013 was A
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 8
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 c
very day on which the incident had occurred (on 21.10.2007),
as the brother of the deceased - Sunny 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 D
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
rientioned.
                                                                 E
      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 F
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 G
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
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216          SUPREME COURT REPORTS                [2015] 14 S.C.R.


A 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
B 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 High Court deserves to be
    set aside. The same is accordingly hereby set aside.
c           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
D 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.
      Nidhi Jain                                       Appeal allowed.