Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.40375 of 2010 ====================================================== Chandeshwari Yadav Son of Sri Saryug Yadav, Resident of Village Parsahi, Police Station Kumar Khand (Bhatni), District Madhepura. .... .... Petitioner/s Versus 1. The State of Bihar 2. Nilam Devi, Wife of Late Deo Narayan Yadav @ Kirani Yadav, Resident of village Parsahi, Police Station Kumarkhand (Bhatni), District Madhepura. .... .... Opposite Party/s ====================================================== CORAM: HONOURABLE MR. JUSTICE RAKESH KUMAR ORAL ORDER 2 10-05-2012 Heard Shri Uday Chand Prasad, learned counsel for the petitioner and Shri Permanand Kunwar, learned Additional Public Prosecutor. The sole petitioner, while invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, has prayed for quashing of an order dated 21.9.2010 passed by learned Ist Additional Sessions Judge, Madhepura in S.T. No.211 of 2007/S.T. No.211A of 2007 arising out of Kumarkhand P.S. Case No.75 of 2006. By the said order, the learned trial Judge has allowed the petition filed under Section Patna High Court Cr.Misc. No.40375 of 2010 (2) dt.10-05-2012 2 / 8 2 319 of the Code of Criminal Procedure on behalf of the prosecution and summoned the petitioner to face trial along with other accused persons, who were already put on trial. Learned counsel for the petitioner firstly has argued that the petitioner was named as one of the accused in the F.I.R. along with others. However, during investigation, no material was collected showing implication of the petitioner and as such police on 12.4.2007 though forwarding some of the accused persons to face trial exonerated the petitioner and as such final report in favour of the petitioner was filed. After charge sheet, the learned Magistrate took cognizance of the offences and summoned the accused persons, who were sent up for trial. Even at the stage of charge, nothing was brought on record to show complicity of the petitioner. However, during the trial, after examination of some Patna High Court Cr.Misc. No.40375 of 2010 (2) dt.10-05-2012 3 / 8 3 of the witnesses, a petition was filed for summoning the petitioner also to face trial. It was argued that once the petitioner, being named as accused in the F.I.R., was exonerated by the police and the petitioner was not summoned by the Magistrate at the time of cognizance at subsequent stage under Section 319 of the Code of Criminal Procedure, the learned court was not empowered to summon the petitioner. Second limb of argument was that during investigation, nothing was disclosed showing involvement of the petitioner, however, some of the witnesses, who were interested, had disclosed about participation of the petitioner in the crime and as such the learned court was not required to pass order for summoning the petitioner. In support of his argument, learned counsel for the petitioner has relied on 2005(1) PLJR 305 (Tarkeshwar Singh Vs. State of Bihar), 2006(1) PLJR 502 (Mrigendra Patna High Court Cr.Misc. No.40375 of 2010 (2) dt.10-05-2012 4 / 8 4 Prasad Vs. State of Bihar) and 2007(1) PLJR 669 (Ratan Mala Devi Vs. State of Bihar). He submits that power under Section 319 of the Code of Criminal Procedure is to be exercised sparingly and only in those cases where there is sufficient material to form an opinion for conviction of a person. On aforesaid ground, he has prayed for setting aside the impugned order. Learned Additional Public Prosecutor, while opposing the prayer of the petitioner, has argued that so far as summoning a person, who was though named in the F.I.R., but exonerated by the police, under Section 319 of the Code of Criminal Procedure has already been held as legal and valid. He submits that only on the ground that the petitioner was F.I.R. named accused and he was not sent up for trial, he cannot take a plea that he was immune from summoning by the trial court. He further submits that the learned trial court, while Patna High Court Cr.Misc. No.40375 of 2010 (2) dt.10-05-2012 5 / 8 5 passing the impugned order, had categorically discussed evidence of number of prosecution witnesses, which disclosed direct involvement of the petitioner in the crime, which is inconsonance with the allegation made in the F.I.R. Besides hearing learned counsel for the parties, I have also perused the materials available on record. The F.I.R. in this case was lodged in the year 2006 for the offence under [STATUTE] and Section 27 of the Arms Act. In the F.I.R. itself, the informant, who is none else, but the widow of the deceased had made categorically statement that more than six accused persons had intruded into her house and this petitioner had caught hold of the informant and on the order of this petitioner, one of the accused opened fire on her husband. Petitioner was named in the F.I.R. with specific allegation, but to the reasons best known to Patna High Court Cr.Misc. No.40375 of 2010 (2) dt.10-05-2012 6 / 8 6 the police, he was exonerated. However, during the trial, the informant, who was examined as P.W.6, had corroborated the stand taken in the F.I.R. Similarly, other witnesses have also disclosed the fact showing complicity of the petitioner in the crime. Of course, some contradiction has been pointed out by the learned counsel for the petitioner in their statement, but after going through the impugned order as well as materials available on record, the Court is of the opinion that sufficient evidences were already brought on record for forming an opinion that there was probability of conviction of the petitioner and as such while summoning, the trial Judge has committed no error. Point in respect of summoning a person named in the F.I.R. and exonerated by the police, at the stage under Section 319 of the Code of Criminal Procedure has already been settled long back in a case reported in 1979 Supreme Court 339 Patn

Applicable IPC Section: 302

Statute Text:
Section 302 of the Indian Penal Code. Murder. Whoever commits murder shall be punished with death, or imprisonment for life, and shall also be liable to fine.