Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.4142 of 2009 ====================================================== Jambhu Yadav, Son of Late Ram Nath Yadav Resident of Village Brahmpur, P.S. – Brahmpur, District - Buxar. .... .... Petitioner/s Versus 1. The State Of Bihar. 2. Lal Babu Yadav Son of Late Chandrika Yadav. 3. Uma Shankar Yadav, Son of Late Chandrika Yadav. 4. Deo Kumar Sah, Son of Sri Bilash Sah. 5. Surendra Yadav, Son of Late Sadhu Yadav. 6. Munna Sah, Son of Deo Kumar Sah. All are residents of Brahmapur P.S. Brahampur, District - Buxar. .... .... Opposite Party/s ====================================================== CORAM: HONOURABLE MR. JUSTICE RAKESH KUMAR ORAL ORDER 4 17-04-2012 Heard Sri Raj Nandan Prasad, learned counsel for the petitioner and Sri Gauri Shankar Gupta, learned Additional Public Prosecutor, appearing on behalf of opposite party no. 1 / State of Bihar. Today again, none appeared on behalf of opposite party no. 2 to 6 whereas, the opposite party no. 2 to 6, have already entered appearance through their counsel. Yesterday also, none had appeared on behalf of the opposite party no. 2 to 6. The petitioner, who is informant in Sessions Trial No. 324 of 2007 arising out of Brahampur P.S. Case No. 108 of 2005 , has approached this Court under Section 482 of the Code of Criminal Procedure with a prayer to quash an order dated 27.11.2008 passed by the learned 1st Additional Sessions Judge, Buxar, in Sessions Trial No. 324 of 2007 whereby, the learned Patna High Court Cr.Misc. No.4142 of 2009 (4) dt.17-04-2012 2 / 4 2 Sessions Judge has rejected the petition filed under Section 319 of the Code of Criminal Procedure for summoning the opposite party no. 2 to 6 to face trial along with other two accused persons who were facing trial in the case. Short fact of the case is that on the basis of fard-beyan of the petitioner/informant an F.I.R. vide Brahampur P.S. Case No. 108 of 2005 was registered for the offence under [STATUTE] against seven accused persons which include the opposite party no. 2 to 6. In the F.I.R. there was specific allegation of participation in the crime by the opposite party no. 2 to 6. However, after investigation, charge sheet was submitted only against two accused persons namely Jadu Yadav and Saudu Yadav. During the trial while prosecution evidence continued and material was brought on record showing involvement of the opposite party no. 2 to 6 a petition was filed under Section 319 of the Cr.P.C. for summoning the opposite party no. 2 to 6 to face trial along with accused persons who were facing trial in the case. However, the learned Trial Court on the basis of an affidavit which was filed by the informant during the investigation instead of summoning the accused under Section 319 of Cr.P.C. has directed for issuance of show cause notice to the informant (petitioner ) as to why criminal Patna High Court Cr.Misc. No.4142 of 2009 (4) dt.17-04-2012 3 / 4 3 case be not lodged against him. Learned counsel for the petitioner while pressing the present petition has taken the court to deposition of P.W. 4 who is none else but the informant, wherein, he has categorically corroborated the averment which was made in the F.I.R. Meaning thereby, that he categorically deposed that besides two accused persons, the opposite party no. 2 to 6 were involved in the crime. He disclosed that in the occurrence first firing was made by opposite party no. 5 / Surendra Yadav. After receiving that injury the victim was alive, and subsequently, the opposite party no. 2 / Lal Babu Yadav opened fire on the chest of the victim. It has also come that opposite party no. 4 / Deo Kumar Sah was the order giver and opposite party no. 6 / Munna Sah in the occurrence had taken hold of the informant. In respect of one of the accused namely Uma Shankar Yadav, it was disclosed that he was accompanying the accused at the time of crime. It was submitted by learned counsel for the petitioner that during investigation the petitioner was pressurized by the accused persons, and thereafter, they obtained affidavit by force from the informant in which statement was made that incorrectly the case was lodged by the informant, he was not present at the time of occurrence. However, during the trial he categorically disclosed in paragraph no. 6 of his Patna High Court Cr.Misc. No.4142 of 2009 (4) dt.17-04-2012 4 / 4 4 cross-examination that by use of pressure the accused persons had obtained affidavit even before his deposition. The informant had also complained before the Investigating Officer and the Superintendent of Police regarding the pressure tactics adopted by the accused persons. After going through the evidence of PW 4, the court is of the opinion that there were sufficient materials on record to summon the opposite party no. 2 to 6 but the learned court below, in a mechanical manner, instead of proceeding on the petition has directed the informant to file show cause which appears to be perverse and contrary to the record. Accordingly, the order dated 27.11.2008 is hereby set aside. The matter is remitted back to the court below to examine the evidence which has been brought on record during the trial and pass a fresh order on petition filed under Section 319 of the Code of Criminal Procedure. The petition stands allowed. Praful/- (Rakesh Kumar, J)

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.