CAV JUDGMENT

Heard learned counsel for the petitioner as well as learned APP for the Opposite parties.

2. The petitioner has challenged order dated 22.08.2019 passed in Sessions Trial Case No. 492 of 2015 arising out of Kotwali P.S. Case No. 305 of 2012 registered for the offences punishable under Section 302/34 IPC and under Section 27 of the Arms Act by learned A.D.J.-7, Bhagalpur whereby the petitioner has been summoned to face trial under Section 319 of the Indian Penal Code.

3. The case of the prosecution is that one Manoj Kumar Gupta lodged FIR on 03.06.2012 at 02:40 PM before the Sub Inspector of Barai Police Station alleging therein that on 02.06.2012 at around 05:45AM his younger brother Bishwanath Kumar Gupta had gone to fruit shop. He went to take tea at Bhariti Chauk. While returning after taking tea two unknown persons fired upon him. He sustained gun shot in his stomach and on 03.06.2012 he was declared dead.

4. Information reached police station on 02.06.2012 at 07:30PM but the FIR seems to have been lodged at 09:45 PM on 03.06.2012 and it reached the learned Magistrate on 06.06.2012.

5. The counsel for the petitioner submits that the murder was committed due to business rivalry. The deceased were munsi-cum-care taker in the partnership firm as his brother Manoj Kumar Gupta and one Md. Nasim. This firm was situated in the tenancy of joint family of the petitioner. Bishwanath Gupta while working as member in his brother’s partnership firm started his own independent business of fruit. His growing business invited the rivalry of his brother’s partner Md. Nasim and probably he got murdered him.

6. Counsel for the petitioner further submits that this misfortune of Bishwanath Gupta was lapped by the then Senior Superintendent of Police, Bhagalpur K.S. Anupam, who was related to the petitioner and was having serious financial and property disputes with the petitioner. On his instruction the SHO, Kotwali namely Kumod Kumar acted quickly to implicate the petitioner.

7. The counsel further submits that the Kotwali police arrested Md. Saddam and Md. Rustam. Md. Saddam took the name of Md. Rustam who gave him money to kill. Md. Rustam stated that he was financed by the petitioner. Immediately after their arrest on a court holiday they were taken by the police to the house of a judicial magistrate where they were forced to make confessional statement under Section 164 Cr.P.C. As per the counsel the motive assigned was preposterous. The police claimed that the petitioner had directed all his tenants to vote for a particular candidate in the municipal election of a ward of which the petitioner was not a resident. The said candidate lost by a margin of ten votes and the petitioner suspected that the deceased did not vote for him and he got him killed.

8. The petitioner moved before the Director General of Police, Bihar with detailed facts who took away the supervision of this case from the control of the then SSP, Bhagalpur and handed it over to a DIG Rank IPC Officer posted in the police Headquarters Dr.Kamal Kishore Singh who was then DIG CID (AD) Patna. In the meantime, the SSP in his henchmen proceeded to implicate the petitioner in a number of criminal cases. The supervision of which was taken away and handed over to the same officer. On the complaint of the petitioner, the SHO Kumod Kumar had to face the proceedings before National Human Rights Commission where a fine of Rs. 50,000/- was imposed on him. Departmental proceeding 50/2013 was held against Kumod in which he was awarded a major punishment of three black marks and stoppage of three incriminates for wrongly investigating the Kotwali Police Station Case No. 305/2012 i.e. the instant case.

9. As per petitioner in the meanwhile Md. Rustam filed a complaint against the SHO Kotwali and two other SHOs claiming that he was forced to give his statement under Section 164 of the Cr.P.C.

10. The petitioner counsel further submits that on the investigation carried out on th