- (1.) S. R. Bhargava, J. In this petition under Section 482, Cr. P. C. , Jai Prakash Narain Rai, Raj Bahadur Rai and Ram Sureman Rai have prayed for quashing order dated llth February, 1988, passed by Magistrate and quashing of criminal proceeding arising out of crime No. 488 of 1985 - State v. Girish Rai and others, P. S. Gorakhpur Cantt, pending in the court of Chief Judicial Magistrate, Gorakhpur.
(2.) FACTS giving rise to this petition are that on 4th October, 1985 at 4. 30 p m. one Harish Chandra Singh lodged First Information Report at P. S. Cantt, Gorakhpur against one Girisb Rai and the petitioners, with the allegations that on that very day at 7. 30 p. m. talks were to be held with Executive Engineer, Distribution Division II, Mohaddipur, Gorakhpur and for working out the strategy informant Harish Chandra Singh, S. S. Upadhya, S. N. Singh, Jai Raj Singh, J. K. Ojha and other junior Engineers assembled in the room of Head clerk for discussing the strategy of the talks. At about 3. 15 p. m. Girish Rai, who is brother-in-law (loser) of R. S. Rai, S. D. O. Electricity Department, Mohaddipur and is contractor of the Department, petitioners Jai Prakash Rai and Raj Bahadur came with a Jhola in the slid room. Girish Rai said to Jai Kishun Ojha that the later was harassing his brother-in-law (gainer), hurled abuses and threatened that he he would kill said Ojha and fired pistol at Ojha. Aforesaid Upadhya gave jerk to the hand of Girish Rai whereby the shot tired by Girish Rai went grazing over the head of Ojha. Girish Rai then struck blow of barrel of the pistol on the head of Ojha. Junior Engineers, assembled in the room, shouted and ran for catching hold of. Girish Rai, Jai Prakash Rai and Raj Bahadur Rai, then all the three of them left behind the pistol, diary, small bag and chaappal, and made good their escape. Ojha was taken to hospital, it was further alleged in the First Information Report that Ram Sureman Rai took casual leave and hatched a conspirach for killing Ojha. On this report case was registered and Civil Police of the Police Station proceeded with investigation which was concluded on 22nd October, 1985. Then Annexure '2' of the petition shows that on 28th November, 1985 U. P. Electrity Board sent a D. O. letter to U. P. Government in Home Department, whereupon the Government directed investigation by the Crime Branch, C. I. D. on 18th December, 1985 the Government directed the Inspector General of Police, C. I. D. that according to the decision of the Government case may be investigated. Superintendent of Police, C. B. , C. I. D. , Lucknow sent wireless message dated 20th December, 1985 to Station Officer, CB, CID, Gorakhpur for enquiry into the case and for copies of First Information Report etc. It is now not disputed that the local Police submitted charge sheet against all the four persons named in the First Information Report. It is now also not disputed and was categorically stated during arguments in this court that on 15-1-1986 charge sheet came before the Magistrate who took cognizance of the case against all the four persons named in First Information Report. Inspector, CB, CID. , Gorakhpur moved application dated 24th January, 1986 (Annexure T of rejoinder-affidavit) before the Chief Judicial Magistrate, Gorakhpur for permission for further investigation in the case. It was stated during arguments that on 27th January, 1986 Magistrate accorded permission for further investigation by C. B. , C. I. D. case remained psnding. After further investigation CB, CID submitted report dated 20th November, 1987 to the Magistrate. In this report it was inter alia said that R. S. Rai, Jai Prakash Rai and Raj Bahadur Rai were named in the First Information Report on account of enmity. CB, CID criticised the investigation by local Police and specifically pointed out that the investigating officer of the local Police did not pay attention to the statement of R. K. Mani.
(3.) PETITIONERS relied upon the report of the Investigating Officer of the CB, CID and asserted that they are liable to be discharged. They moved application dated llth February, 1988 before the Magistrate for their exonera tion. Learned Magistrate passed order that the reason for exoneration were insufficient and dismissed the application. Then the petitioners came to this eout. Parties have exchanged affidavits and their counsel have been heard at length.;