Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.1568 of 2011 ====================================================== Tunna Srivastawa son of Sri Rajeshwar Prasad, resident of village Sudama Nagar, P.O. Bathna, P.S.Barriya, District West Champaran, .... .... Petitioner/s Versus 1. The State Of Bihar 2. Munna Rai son of Late Birendra Rai resident of village Kotraha P.S.Nautan, District West Champaran. .... .... Opposite Party/s ====================================================== Appearance : For the Petitioner/s : Mr. Rajiv Kumar Verma, Sr. Adv. For the Opposite Party/s : Mr. ====================================================== CORAM: HONOURABLE MR. JUSTICE SHIVAJI PANDEY ORAL ORDER 5 29 -11-2012 Heard counsel for the petitioner and the State. This is an application for quashing the order dated 27th April 2010 passed by the Sessions Judge, West Champaran, Bettiah in Sessions Trial No. 423 of 1997 whereby and whereunder the petitioner has been summoned to stand trial for the offences under [STATUTE] and Section 27 of the Arms Act. The informant of this case, namely, Munna Rai, son of the victim gave his fard-beyan on 24th August 1997 before the Officer In-charge of Kotraha Police Station stating therein that on the previous night at about 9:30 P.M., the informant along with his deceased father and cousin Guddu Rai had been going to their native place as they reached Budhwaria Kukul Kuria they were ambushed and surrounded by Devendra Yadav son of Jagannath of village Kotraha, armed with D.B.B.L. gun, Tunna Srivastava Patna High Court Cr.Misc. No.1568 of 2011 (5) dt.29-11-2012 2 / 8 2 (father’s name not known) of village Sudama Nagar, holding rifle, Yogendra Yadav of village Kotraha, Bandhi Yadav Ka Tola, and some unknown persons holding D.B.B.L. gun. When the father of the informant tried to escape, Devendra Yadav fired from his D.B.B.L. gun causing injury, Tunna Srivastava fired from his rifle, caused death to his father. They started crying, residents of Khaptola, Kotraha Bariarpur Budhwaria, namely, Awadh Rai, Bashishtha Rai son of Bhup Narayan Rai, Pradip Rai, son of Rajendra Rai, Shukul Rai of village Kotraha rushed to the P.O. The case was registered as Nautan P.S.Case No. 79 of 1996 for the offences [STATUTE] investigation, Police submitted charge-sheet vide Charge-sheet No. 96 dated 29th December 1996 against Devendra Yadav, Yogendra Yadav but the petitioner was not sent up to face trial The court took cognizance of the case and committed the case to the court of Sessions which was registered as S.T.No. 423 of 1997. Altogether thirteen witnesses were examined by the prosecution and out of them, P.W. 1 to P.W.5 have made statements against the petitioner directly implicating him to be involved in the murder of late Biran Rai, father of the informant. Although the evidence of P.W 1 to P.W.5 are not on record but from the order-sheet and the statements made at the bar it is clear Patna High Court Cr.Misc. No.1568 of 2011 (5) dt.29-11-2012 3 / 8 3 that witnesses (P.W.1 to P.W.5) have fully supported the case of prosecution implicating the petitioner in the occurrence alleged. Counsel for the petitioner submitted that altogether thirteen witnesses were examined and out of them five witnesses (P.Ws. 1 to 5) have named the petitioner. He submitted that P.W.1 was examined on 3..1.1998, P.W.2 was examined on 9.3.1998, P.W.3 was examined on 14.5.1998, P.W.4 was examined on 26.6.1998 and P.W.5 was examined on 1.8.1998 and the last witness, i.e. P.W.13 was examined in June 1999 and the petition under Section 319 Cr.P.C. was filed on 7th April 1999. He has submitted that the Police has investigated the case and found the alibi plea of the petitioner to be trustworthy and, accordingly, the petitioner was not charge-sheeted. The court while taking cognizance did accept the Police report and did not issue summons to the petitioner and, as such, after such a long delay of thirteen years, there is no justification to call upon the petitioner to stand the trial. Counsel for the petitioner has submitted that the parameter decided by the Hon’ble Supreme Court is that the court while exercising the power must examine the evidences recorded during the trial and if the court is hopeful that there is reasonable prospect of the case against the newly brought accused ending in being convicted of the offence concerned, only in that Patna High Court Cr.Misc. No.1568 of 2011 (5) dt.29-11-2012 4 / 8 4 circumstance, he can be called upon to stand the trial. The Hon’ble Supreme Court is of the view that power under Section 319 of the Code is an extra ordinary power and that should be used very sparingly only if compelling reasons exist for taking cognizance against another person against whom action has not been taken. Counsel for the petitioner submitted that the Hon’ble Supreme Court has also given a rider that in a case of suspicion, the court should avoid exercising power under Section 319 of the Code. Learned counsel for the petitioner further submitted that after such a long period of delay when the trial was at the verge of conclusion, and evidences against the petitioner are not so much to justify the court below on the basis of an application filed under Section 319 of the Code by the prosecution, to exercise the power under the aforesaid Section and to call upon the petitioner to stand the trial. In support of his contention counsel for the petitioner relied on the judgments reported in (2000)3 SCC 262 (Michael Machado v. CBI ) (2009)3 SCC 329(Brindaban Das v. State of West Bengal) 2005(12) SCC 327 Palanisamy Goundep v. State represented through Inspector of Police) 2004(7) SCC 729 (In the matter of ‘RV’ A Judicial Officer) Patna High Court Cr.Misc. No.1568 of 2011 (5) dt.29-11-2012 5 / 8 5 2005(12)SCC 432(Kavuluri Vivekananda Reddy v. State of A.P.) 2005(11) SCC 182 (Kailash Dwiedi v. State of M.P.) 2002(2) PLJE 268(SC

Applicable IPC Section: 147

Statute Text:
Section 147 of the Indian Penal Code. Rioting. Whoever is guilty of rioting, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.