IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL MISCELLANEOUS No.36193 of 2022 Arising out of PS. Case No.-37 Year-2020 Thana- BISHANPUR District- Darbhanga ====================================================== Kumar Gitanshu @ Madhav, Son of Satyabardhan Choudhary @ Gajloo Choudhary, R/o- Rupauli P.S.- Bishanpur Dist.- Darbhanga. ... ... Petitioner/s Versus 1. The State of Bihar 2. Mrityunjay Kumar Chaudhary, S/o- Rajdeo Chaudhary, R/o- Village- Rupauli, P.S.- Bishanpur, District-Darbhanga. ... ... Opposite Party/s ====================================================== Appearance : For the Petitioner/s : Mr. Ajay Kumar Thakur, Advocate Mr. Pankaj Kumar Das, Advocate : Mr. Purushuttam Kumar, Advocate For the State : Mr. Rina Sinha, APP For the OP No. 2 : Mr. Rohit Ranjan, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE ANSUL ORAL JUDGMENT Date : 05-05-2026 Heard learned counsel for the petitioner, learned counsel for the Informant and learned Additional Public Prosecutor for the State. 2. Petitioner seeks quashing of the order dated 28.04.2022 passed by learned 7th Additional Sessions Judge, Darbhanga in Cr. Revision No. 246 of 2021 arising out of Cr. Case No. 1313 of 2020 corresponding to Bishanpur P.S. Case No. 37/2020 whereby and whereunder the learned Court below has accepted the final report of the police and directed the protest petition to be registered as Complaint Case for proceeding with the case on the basis of complaint setting aside the order dated Patna High Court CR. MISC. No.36193 of 2022 dt.05-05-2026 2/5 29.10.2021 passed by learned Judicial Magistrate, 1st Class, Darbhanga. 3. The F.I.R. was lodged with the allegation that on 12.05.2020 at 10:30 AM, the son of the informant was taken by Kumar Gitanshu @ Madhav (Petitioner). After 15-20 minutes, one Ashok Chaudhary informed him and his family members that his son was drowning in the river. He stated that he tried to save him but by that time the boy had already been drowned. The informant reached there and he even engaged the swimmers to bring out the dead body but the body could not be recovered. Thereafter, the dead body was recovered after several hours and post-mortem was conducted. The post-mortem did not suggest anything sinister. The remark of post-mortem is quoted below:- “Death was due to asphyxia and ventricular fibrillation as a result of drowning in water.” 4. The police after investigation submitted final report in the case. The learned Magistrate initially accepted the final report and directed to convert the protest petition into complaint. Against the said order, the informant went to the revisional court and the revisional court directed the trial court to examine the matter afresh and pass the order afresh. The trial Court took cognizance under sections 302 and 201 IPC. The same has been brought on Patna High Court CR. MISC. No.36193 of 2022 dt.05-05-2026 3/5 record through Interlocutory Application No. 1 of 2025. In terms of the statement made therein, Interlocutory Application No. 1 of 2025 is allowed. 5. From perusal of the records, it transpires that the allegation against the petitioner is that he called the son of the deceased and after 15-20 minutes the informant received information that his son has drowned and Ashok Chaudhary tried to save him but he could not save him. Ashok Chaudhary during investigation stated that he saw the petitioner running away from the place. Some of the witnesses also talked about the presence but there is no eye-witness who saw the petitioner making any attempt or taking any steps towards drowning the son of the informant. The case of the informant is that his son was taken away by the petitioner and thereafter he drowned. In such view of the matter, the statement of the witnesses that the petitioner was seen in the vicinity is in consonance with the prosecution case that the deceased was taken away by the petitioner. Another remarkable part of the prosecution case is that though the FIR seems to have been lodged after some time, as per the FIR, the father of the deceased received information through Ashok Chaudhary, he came there and employed swimmers to trace the body. The dead body could not be traced and thereafter the FIR was lodged. In such a Patna High Court CR. MISC. No.36193 of 2022 dt.05-05-2026 4/5 situation, it is beyond comprehension that the version of Ashok Choudhary would not have reached the informant and same would not have formed part of the FIR. Ashok Choudhary was the person who informed the deceased and tried to save the child. Any further information by Ashok choudhary must be considered to be a part of FIR though not directly attributed to him. Omission of such material fact which could not find its way to the FIR is an omission which goes to the root of the matter and probablises the entire prosecution case. 6. No witness has gone beyond saying that the petitioner was seen in the vicinity which as discussed earlier cannot be used as an evidence establishing the guilt of the petitioner but it is in consonance with the story propounded by the petitioner. During entire investigation, the police could not find any material and cognizance was taken differing with the final report. 7. The court is entitled to look at the case diary. Not a single witness has emerged in the case diary who has seen the occurrence or the petitioner taking any step to kill the deceased. Moreover, no motive at all has been alleged against the petitioner or any other persons to indulge in such a gruesome act. The post- martem report also does not suggest any foul play. Patna High Court CR. MISC. No.36193 of 2022 dt.05-05-2026 5/5 8. Learned counsel for the informant as well as learned Additional Public Prosecutor for the State has vehemently opposed the quashing of the order dated 28.04.2022. 9. Considering that the materials like this are bound to result in acquittal of the petitioner in the trial and thus continuance of the proceeding is an abuse of the processes of the Court. 10. In such view of the matter, the order dated 28.04.2022 passed by learned 7th Additional Sessions Judge, Darbhanga in Cr. Revision No. 246 of 2021 arising out of Cr. Case No. 1313 of 2020 corresponding to Bishanpur P.S. Case No. 37/2020 whereby and whereunder the learned Court below accepted the final report of the police and directed that the protest petition to be registered as Complaint Case for proceeding with the case on the basis of complaint setting aside the order dated 29.10.202 passed by learned Judicial Magistrate, 1st Class, Darbhanga is quashed so far as the petitioner is concerned. 11. Accordingly, the present petition is allowed. Vikash/- (Ansul, J) AFR/NAFR NAFR CAV DATE N/A Uploading Date Transmission Date