Patna High Court
SHARMA DUBEYversusThe State of Bihar
- Decided
- Disposal
- ALLOWED
Holding
The appeal is allowed; the acquittal is set aside and the case is remitted for fresh trial with a non‑bailable warrant issued against the accused.
Summary
The victim, Sharma Dubey, appealed the acquittal of Barisrar Dwivedi (respondent No.2) on IPC offences of murder, attempt to murder, assault and other charges, arguing that the trial court erred by dismissing the case without any prosecution evidence. The appeal was filed after the statutory limitation period, but the High Court condoned the delay, invoking a Supreme Court ruling that excluded the COVID‑19 lockdown period from limitation calculations. On merits, the Court found that the trial court repeatedly failed to ensure service of summons, issuance and execution of warrants, and the Public Prosecutor’s chronic non‑appearance resulted in no witness being examined. Relying on established jurisprudence, the Court held that such procedural lapses rendered the acquittal unsustainable. Consequently, the appeal was allowed, the acquittal set aside, a non‑bailable warrant was issued against the accused, and the matter was remitted to the trial court for fresh consideration with directions to secure witness attendance.
Issues considered
- Whether the delay in filing the appeal can be condoned despite the statutory limitation period, considering the COVID‑19 lockdown.
- Whether an acquittal under Section 232 CrPC is valid when the prosecution fails to produce any evidence or witnesses.
- Whether the trial court erred by not ensuring proper service of summons and execution of warrants against prosecution witnesses.
- Whether the High Court may remit the case for a fresh trial and issue a non‑bailable warrant against the accused.
Legislation cited
- Code of Criminal Procedure, 1973 — s. 227, 228, 232, 311, 372
- Indian Penal Code — s. 307, 323, 34, 341, 342, 347, 379, 427, 428, 448, 504
Subjects
- condonation of delay
- acquittal
- prosecution failure
- non-bailable warrant
- fresh trial
- criminal procedure
- evidence
- COVID-19 lockdown
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.144 of 2021
Arising Out of PS. Case No.-22 Year-2009 Thana- BAIRIYA District- West Champaran
======================================================
Sharma Dubey S/o Late Kedarnath Dubey R/o Village- Bhitaha, P.S.- Bairiya,
District- West Champaran.
... ... Appellant/s
Versus
1. The State of Bihar
2. Barisrar Dwivedi S/o Late Ragho Dwivedi R/o Village- Bhitaha, P.S.-
Bairiya, District- West Champaran.
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Bimlesh Kumar Pandey, Advocate
For the State : Mr. Dilip Kumar Sinha, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
and
HONOURABLE JUSTICE SMT. SONI SHRIVASTAVA
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD)
Date : 12-03-2026
Heard learned counsel for the appellant and learned
Additional Public Prosecutor for the State.
2. The present appeal has been preferred by the
victim invoking proviso to Section 372 of the Code of Criminal
Procedure (since repealed). The victim/appellant is aggrieved
by and dissatisfied with the judgment dated 13.12.2019 passed
by learned District and Additional Sessions Judge-V-cum-
Special Judge Excise, Bettiah, West Champaran in Sessions
Trial No. 323 of 2011 arising out of Bairiya P.S. Case No. 22 of
2009, CIS- Session Case 2123 of 2013 whereby and
whereunder the respondent no. 2 has been acquitted of the
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charges under Sections 307, 448, 504 and 342/34 of the Indian
Penal Code (in short ‘IPC’).
3. At the outset, learned counsel for the appellant
submits that since the appeal has been preferred after the period
of limitation, an application seeking condonation of delay has
been filed and that has to be considered at this stage by virtue of
the order dated 08.01.2026.
4. It appears from the records that on 08.01.2026
when this matter came up for consideration, we issued notice to
respondent no. 2 in limitation as well as in admission matter.
The office report shows that the notice sent through ordinary
post has been validly served upon respondent no. 2 while
process server’s report kept at flag “S” and “ A.D.” (duly
flagged). According to these reports, the notice has been
received by respondent no. 2 himself which is at flag D.
5. Learned counsel submits that taking into
consideration the date of the judgment impugned in the present
appeal, the period of limitation would have come to an end on
12.03.2020. The appellant could not prefer this appeal within
the prescribed period of three months as there was surge in the
Covid cases which ultimately led to the unprecedented lock-
down in the country. Referring to the judgment of the Hon’ble
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Supreme Court in Civil Writ (Suo Moto) No. 03 of 2020,
learned counsel submits that in terms of the said judgment, the
period between 15.03.2020 and 28.02.2022 are required to be
excluded while counting the delay. The delay of 324 days has
been explained in the manner recorded above.
6. Mr. Dilip Kumar Sinha, the learned Additional
Public Prosecutor of the State does not contest the submission
of learned counsel for the appellant.
7. We are persuaded by the reasons shown in the
application seeking condonation of delay. Accordingly, the
delay is condoned and the I. A. No. 01 of 2025 is allowed.
Consideration on Merit
8. While challenging the impugned judgment of
acquittal, learned counsel for the appellant has taken this Court
through the order dated 13.12.2019 which is a one-page order
passed under Section 232 of the Cr.P.C. We reproduce the said
order hereunder for a ready reference:-
“ None for the state.
Accused Barristar Dwivedi is present.
That the brief fact of the case is that the accused
Rajendra Dwivedi and Barristar Dwivedi were
arrested for committing the offence u/s 307, 448,
504, 342/34 of the IPC. FIR was registered against
the accused persons on 01.02.2019 and charge
sheet was filed and cognizance was taken against
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the accused persons on 10.06.2010 and charges
were framed against the accused persons on
01.05.2012 and during course of trial one accused
Rajendra Dwivedi got expired on 10.08.2018,
hence trial is pending only against Barrister
Dwivedi. As charge was framed on 01.05.2012 and
the case is fixed for evidence but no prosecution
witness has appeared before the court.
Several steps have been taken by the court to
secure the presence of prosecution witnesses.
Despite granting several opportunities prosecution
has failed to examine single witness. On
06.12.2019 last opportunity was granted to the
prosecution with the direction that if prosecution
has failed to examine any witness prosecution
evidence shall be closed, the said order was shown
to the Ld. APP, but today also no witness has
appeared before the court.
Considering above facts and circumstances,
accused is facing the trial since 2012 and despite
several opportunities prosecution has failed to
examine any witness. In the interest of justice
accused Barrister Dwivedi is acquitted from the
charges of u/s 307, 448, 504, 342/34 of the IPC u/s
232 of the Cr.P.C. on the ground of no evidence.
Sureties of above said accused are discharged from
all their liabilities.”
9. Learned counsel for the appellant submits that on
perusal of the entire trial court records, it would appear that in
this case, the prosecution case is based on the fardbeyan of
Sharma Dubey (the appellant) recorded by S.I. Nagendra
Paswan of Town Police Station Bettiah on 22.01.2009 at 18:15
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hours in the Town P.S. Bettiah campus. The informant alleged
that on 21.01.2009 at about 8-9 PM, his co-villager Rajendra
Dwivedi was cutting the ridge (Aar) of the land of the informant
by a spade, the informant asked him not to do so whereafter a
quarrel begun but with the intervention of the people, the matter
was pacified. It is stated that on 21.01.2009, at about 8 PM
(night), when he was in his house, all of a sudden Rajendra
Dwivedi, Amit Dwivedi, Sumit Dwivedi and Barristar Dwivedi
(the respondent no. 2) armed with lathi, danda and a rope
entered into his house and started hurling abuses. When the
informant side asked them not to do so, then with an intention
to kill, Rajendra Dwivedi and his two sons Amit Dwivedi and
Sumit Dwivedi put the rope on the neck of the informant and
started pulling it as a result of which, he started feeling
suffocated and got shortness of breath.
It is then alleged that Barristar Dwivedi started assaulting
the informant by lathi which caused injuries on the back side
and other parts of his body. When his wife and daughter came
to save him then co-villagers Rakesh Dwivedi son of Yogendra
Dwivedi, Abhay Dwivedi son of Surendra Dwivedi, Tuntun
Dwivedi son of late Keshwar Dwivedi, Basu Gaddi son of Ajij
Gaddi came running and saved his life. He alleged that
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Rajendra Dwivedi took out a sum of Rs. 1,500/- from his pocket
and threatened him that if he would lodge a case then he would
be killed. On the basis of the fardbeyan of the informant,
Bairiya P.S. Case No. 22 of 2008 dated 01.02.2009 for the
offences punishable under Sections 341, 323/307, 379, 427,
428, 504/34 of the IPC was registered.
10. Upon completion of investigation, the police
submitted a charge-sheet. There are altogether seven charge-
sheet witnesses namely, Sharma Dubey, Rakesh Dwivedi,
Abhay Dwivedi, Tuntun Dwivedi, Dr. S.D. Jha, Medical
Officer, M.J.K. Hospital, Bettiah, I.O., Sub Inspector of Police
Jaglal Ram and Assistant Sub Inspector of Police, Rajeshwar
Singh. The records of the trial court would show that on
10.06.2010, the learned CJM, Bettiah took cognizance of the
offences under Sections 341, 323, 307, 379, 427, 448 and
504/34 of the IPC and summoned four accused persons to face
trial. The two named accused Amit and Sumit were shown as
not sent up for trial. Since, cognizance was taken under
Sections 347 of the IPC as also, the learned CJM found that the
said Section is exclusively triable by the Court of Sessions.
Therefore, steps for commitments of the records were taken.
Police papers were supplied and vide order dated 20.07.2011
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the records were submitted to the Court of Sessions.
11. On 22.07.2011, Sessions Trial No. 323 of 2011
was registered in the Court of learned Sessions Judge.
Thereafter, the records were pending for purpose of framing of
charge. Over the period, the records were transferred to the
Court of learned District and Additional Sessions Judge on
23.03.2012. The accused persons filed an application under
Sections 227 and 228 Cr.P.C. seeking their discharge. One of
the grounds was that it is a counter case of Bairiya P.S. Case
No. 29 of 2009 and the case has been lodged on account of land
dispute. The plea of the accused, however did not find favour
with the learned Trial Court and vide order dated 18.04.2012,
the application was rejected and the records were kept for
framing of charge.
12. On 01.05.2012, the charges were explained to
the accused who denied the charges and claimed to be tried.
Accordingly, the charges were framed for the offences
punishable under Sections 307/34, 448, 504 and 342 of the IPC.
13. It appears that with the framing of charge on
01.05.2012, the learned Trial Court directed for issuance of
summons to the prosecution witnesses. The margin portion of
the order sheet would show that there is an endorsement that
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summon has been issued to witness nos. 1 to 4. We do not find
any signature below the said endorsement in the margin portion.
We also tried to search from the records the copy of the
summons if served upon the accused persons but there is no
copy of the summons showing service upon the witnesses. The
learned Trial Court has thereafter proceeded to adjourn the
matter from one date to another and it went on to couple of the
years. We also tried to find out whether there is any satisfaction
recorded by the learned Court with regard to the service of
summons on the witnesses but could not find from the order
sheets any order showing that the summons have been duly
served upon the witnesses. In the margin portion in front of the
order dated 04.03.2013, it is recorded “W.A.issued” but again
there is no signature below this endorsement and there is
nothing on the record to show that the warrant of arrest was
executed.
14. We have found that on 07.08.2014, the learned
Trial Court directed the office to write a letter to Superintendent
of Police for witnesses, on the record a cyclostyled copy of the
letter addressed to Superintendent of Police, Bettiah is available
but there is no proof of dispatch of the said letter on the record.
Whether the said letter reached the office of the Superintendent
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of Police, Bettiah or not remains a question to be answered but
we do not find any answer to the same from the records.
15. The records were kept for years together by way
of adjournments without any significant steps. The Public
Prosecutor was not appearing on most of the dates and his non-
appearance has been duly recorded. The records were
transferred from one court to another and lastly, it went to the
Court of learned A.D.J.-IV on 11.05.2016. Several dates were
given but the prosecution did not make any Hazari/Pairvi even
on a single date. The records were again transferred to the Court
of learned A.D.J.-V, Bettiah. In this Court, for the first time, on
03.04.2018, the attendance/Parivi of the prosecution has been
recorded but finding that no witness was being produced, the
learned Court directed for issuance of bailable warrant and in
the margin portion, it is recorded that B.W. issued but again the
service report of the execution of the bailable warrant has not
come on the record.
16. We find that on 05.12.2018, one witness, Rakesh
Kumar Dwivedi had appeared on behalf of the prosecution but
on that day, no parivi was done on behalf of the
accused/respondent no. 2 as a result whereof, his bail bond was
cancelled but the witness had to be returned without
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examination. Ultimately, the accused-appellant surrendered on
23.02.2019 and his bail bond was restored subject to payment
of cost of Rs. 1,000/- as witness cost with an undertaking that
he would appear in the Court on every date. It appears the
accused was allowed to remain on bail after he submitted the
bail bond on the same date. The further orders show that no
witness turned upon behalf of the prosecution and on most of
the dates, the APP was not doing any Parivi. On 06.11.2019,
NBW is said to have been issued but there is no execution
report of the NBW against the witnesses.
17. Lastly, on 06.12.2019, when none appeared for
the State but accused was present, the learned Trial Court
recorded an order that despite several opportunities to the
prosecution, the prosecution had failed to examine any witness.
In the interest of justice, last opportunity was granted to the
prosecution, otherwise the prosecution evidence shall be closed.
This order was shown to the learned APP as we find an
endorsement “ Seen Chandrashekhar Prasad, APP, 06.12.2019.”
(emphasis supplied)
We understand that Chandrashekhar Prasad, APP had seen the
order of the learned Trial Court on 06.12.2019. Despite this, no
action was taken by the learned APP and ultimately, on
13.12.2019, the learned Trial Court passed the impugned order.
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18. From the aforementioned discussions, it is quite
clear that even though the learned Trial Court, for sake of
completion of the records, recorded at various stages about
issuance of summons, bailable warrant and non-bailable
warrant against the witnesses, but the Court never ensured that
the service report of those summons, bailable warrant or non-
bailable warrant be obtained. The Superintendent of Police,
Bettiah was though said to have been communicated by a letter
but it is not known whether the said letter reached the office of
the Superintendent of Police, Bettiah.
19. We have also noticed that in this case the learned
APP was acting in most casual manner, he was not doing
Hazari/ Pairvi of the case on most of the dates and he was not
understanding his responsibility as it appears from the record.
This Court has reasons to believe so. Despite knowledge of the
order dated 06.11.2019, by which last opportunity was granted
to the prosecution to produce the witnesses, he did not take any
step to protect the interest of the prosecution on 06.12.2019. We
are fortified by the judgment of the Hon’ble Supreme Court in
the case of Shailendra Kumar vs. State of Bihar & Ors.
reported in AIR 2002 SC 272 “para-9” which reads as under:-
“9. In our view, in a murder trial it is sordid and
repulsive matter that without informing the police
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station officer-in-charge, the matters are
proceeded by the Court and by the APP and tried
to be disposed of as if the prosecution has not led
any evidence. From the facts stated above, it
appears that accused wants to frustrate the
prosecution by unjustified means and it appears
that by one way or the other the learned Sessions
Judge as well as the APP have not taken any
interest in discharge of their duties. It was the
duty of the Sessions Judge to issue summons to
the investigating officer if he failed to remain
present at the time of trial of the case. The
presence of investigating officer at the time of
trial is must. It is his duty to keep the witnesses
present. If there is failure on part of any witness
to remain present, it is the duty of the Court to
take appropriate action including issuance of
bailable/non-bailable warrants as the case may be.
It should be well understood that prosecution
cannot be frustrated by such methods and victims
of the crime cannot be left in lurch.”
20. What would be the role of the Court and the
Public Prosecutor in the Trial has been pointed out by the
Hon’ble Supreme Court times and again. It is the duty of the
Court to ensure that the truth is revealed and for that purpose,
the Court has to ensure that all procedures available in law be
duly exhausted to procure the evidences. In this regard, we rely
upon the judgment of the Hon’ble Supreme Court in the case of
Harendra Rai vs. State of Bihar & Ors. reported in (2023) 13
SCC 563. Paragraphs ‘66’ and ‘67’ of the said judgment are
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quoted hereunder for a ready reference:-
“66. Before dealing and discussing the evidence led
in the trial court, relevant facts relating to the manner
in which the trial has been conducted, deliberate
lapses on the part of the Public Prosecutor in leading
the prosecution witness, lapses on the part of the trial
court in not exercising the powers vested in it to
ensure a fair and just trial, the facts mentioned in the
reports of the Inspecting Judge and also the findings
recorded by the High Court in the Division Bench,
need to be mentioned.
Lapses on the part of the prosecution conducting
the trial and that on the part of the investigating
agency
67. Briefly the lapses are summarised as under:
67.1. No explanation was given for not producing the
scribe of the FIR. In case the scribe was not available
for some reason then someone else from the police
station could have been produced to prove the hand
writing and signature of the scribe.
67.2. The investigating officer not produced by the
prosecution, is again a clear and deliberate lapse.
67.3. Non-production of other prosecution witnesses
of preparing the recovery/seizure list, inquest
report, carrying the dead body to the hospital, and
absence of any effort to prove other formal aspects
of the investigation clearly indicate malice and
deliberate lapse on the part of the prosecution.
67.4. The conduct of the Public Prosecution in
filing affidavits in evidence of the witnesses of fact
despite directions of the High Court and further
examining witnesses under Section 311 CrPC to
strengthen the case of defence reflects the tainted
role of the Public Prosecutor.”
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21. In ultimate analysis, we find that the learned
Trial Court has passed the impugned order without following
the established procedure of law. If such order is allowed to
remain in existence it would be in the nature of stumbling block
in fair-play in action.
22. The concept of fair trial would require this Court
to interfere with the impugned judgment and remit the matter to
the learned Trial Court for fresh consideration by ensuring the
attendance of the witnesses in accordance with law. The
Superintendent of Police, Bettiah and the Public Prosecutor,
Bettiah shall ensure that the witnesses are produced on the date
in the matter.
23. The accused-respondent no. 2 has not appeared
despite service of notice. Therefore, we issue a non-bailable
warrant against him. The accused-respondent no. 2 shall
surrender or be produced before the learned Trial Court where
he may seek his release on bail on furnishing bail bonds and
sureties to the satisfaction of the learned Trial Court.
24. If such an application will be filed by the
accused-respondent no. 2, the same shall be considered by the
trial Court on the same day and shall put such terms and
conditions which will be necessary to secure the appearance of
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the accused on the dates fixed.
25. Accordingly, this appeal is allowed.
26. We make it clear that the Superintendent of
Police, Bettiah shall himself ensure the execution of the non-
bailable warrant within two weeks from the date of receipt of
the communication of this order and a report in this regard shall
be sent to the learned Registrar General of this Court.
(Rajeev Ranjan Prasad, J)
( Soni Shrivastava, J)
Devendra/priyanka
AFR/NAFR AFR
CAV DATE NA
Uploading Date 17.03.2026
Transmission Date 17.03.2026
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