@JUDGMENTTAG-ORDER
R.R. Prasad, J.@mdashHeard learned Counsel appearing for the petitioner and learned Counsel appearing for the C.B.I.
2. This application has been filed u/s 482, Cr PC for quashing the entire criminal proceedings of case bearing No. R.C. 11(S)/2003/C.B.I./SCR-III/ND lodged by the C.B.I. (G.R. No. 2858 of 2003) pending in the Court of learned Special Judge, C.B.I.- cum-S.D.J.M., Dhanbad including the order taking cognizance of the offences u/s 120B read with Sections 193/194/218/203 of Indian Penal Code and also u/s 27 of Arms Act.
3. Learned Counsel appearing for the petitioner submits that one Pramod Kumar Singh, after coming home from the Railway Station on private taxi was about to enter into his house, was shot dead by some miscreants and was immediately removed to hospital where in presence of Officer In-charge of Seraidhela Police Station as well as the doctor as also four witnesses made statements that while he was about to enter into his house, accused Ramadhin Singh and Rajiv Ranjan Singh came all of a sudden over there and on being exhorted by Ramadhin Singh, Rajiv Ranjan Singh pumped in so many bullets causing several gun shot injuries and upon it, Dhanbad (Dhansar) P.S. Case No. 638 of 2003 was instituted u/s 307/34 of Indian Penal Code and also u/s 27 of Arms Act but when Pramod Kumar Singh died, Section 302 of Indian Penal Code was also added. It was further submitted that while the matter was under investigation, the investigation of the case was taken up by the C.B.I, at the instance of the State Government and almost after three years of the occurrence, the C.B.I, could lay hand upon Kashmiri Khan and Mohd. Ayub Khan @ Nanhe who are said to have given their statements u/s 164 of Cr PC but before giving statements u/s 164 of Cr PC they had been taken on remand by the police.
4. Learned Counsel further submits that it is said that said Kashmiri Khan in his statement made u/s 164 of Cr PC disclosed that one Kharak Singh @ Sami Akhtar came to him and asked him to commit murder of Pramod Kumar Singh, as he had taken contract from one Suresh Singh of killing him and then Kharak Singh @ Sami Akhtar gave money to one Hira Khan who committed murder of Pramod Kumar Singh and thereafter the C.B.I, arrested this petitioner whose name is Syed Md. Akhtar taking him as Kharak Singh @ Sami Akhtar without any material whatsoever and as such the C.B.I, can be said to have violated the law laid down by the Hon''ble Supreme Court in the case of
5. Learned Counsel further submits that the petitioner was made accused, though as per the dying declaration made by the deceased, it were Ramadhin Singh and Rajiv Ranjan Singh who were responsible for causing murder of Pramod Kumar Singh and the petitioner was made accused only on the basis of the statement made by the co-accused u/s 164 of Cr PC where he never discloses the name of the person who gave money as Syed Md. Akhtar, still the petitioner was taken to be Kharak Singh @ Sami Akhtar @ Sayeed Md. Akhtar and, therefore, the petitioner filed a quashing application before this Court bearing Cr M.P. No. 1359 of 2007 but when the application was not taken up for hearing the petitioner moved before the Hon''ble Supreme Court and filed a Writ Petition (Cr) No. 01 of 2008 taking plea that the petitioner''s personal liberty has been infringed, as he was arrested and made accused in this case on a mistaken identity and that too upon the materials which are so insufficient that one cannot be held guilty in the circumstances and had prayed for quashing of the FIR.
6. However, the petitioner was directed by the Hon''ble Supreme Court to file an application for appropriate direction before this Court and wished that the same be disposed of, if possible, within a month and under that circumstances, this application has been filed and, therefore, in the facts and circumstances, as stated above, the entire criminal proceedings including the order taking cognizance is fit to be set aside, so far as the petitioner is concerned.
7. As against this learned Counsel for the C.B.I, submits that after the C.B.I, took over the investigation, he could lay had over two person namely, Kashmiri Khan and Md. Ayub Khan who disclosed that due to business, rivalry, Pramod Kumar Singh was murdered at the instance of one Suresh Singh who had given contract to Kharak Singh @ Sami Akhtar @ Sayeed Md. Akhtar who approach Kashmiri Khan and asked him to do the job and accordingly he (Kashmiri Khan) brought one Hira Khan in picture and both were paid money in advance by Kharak Singh @ Sami Akhtar @ Sayeed Md. Akhtar for committing murder and then Pramod Kumar Singh was murdered by the Hira Khan. Therefore the C.B.I, in order to ascertain the identify of Kharak Singh @ Sami Akhtar @ Sayeed Md. Akhtar recorded the statement of one Tajmul Mian whose house had forcibly been occupied by Nazir @ Md. Nasuriddin whose daughter was married to Kharak Singh @ Sami Akhtar @ Sayeed Md. Akhtar and he has been residing in the house along with his daughter and he disclosed that Sayeed Md. Akhtar is known as Kharak Singh and there has been no reason on the part of the C.B.I, to disbelieve the version of Tajmul Mian and, accordingly, it can be said that the C.B.I, after establishing the identify of this petitioner arrested him and booked in this case and the C.B.I, has been able to lay hand on the material upon which the C.B.I, is bound to establish the charges levelled against the petitioner.
8. After hearing the parties and taking into consideration the statement made by Kashmiri Khan u/s 164 of Cr PC and also the statement made by Tajmul Mian, which were produced in course of hearing, there appears to be hardly any scope at this stage to hold that the identity could not be ascertain by the C.B.I, before the petitioner was arrested.
9. In this view of the matter, I do not filed it a fit case for quashing the FIR or even the order taking cognizance of the offences. Hence, I do not find any merits in this application, which is, accordingly, rejected.
10. However, before parting this order, I may observe that any finding given may not be taken to be conclusive, rather it is limited to this application for deciding the case and it would always be open to the petitioner to take this plea in course of trial.
