Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.6605 of 2011 ====================================================== Ajay Choudhary, son of late Bishwanath Doctor, resident of Neel Kothi, Police Station Dehri-on-Sone, District-Rohtas. .... .... Petitioner/s Versus 1. The State Of Bihar 2. Fatima Khatoon, wife of late Sadruddin, resident of Mohalla- Neel Kothi, Police Station-Dehri-on-Sone, District-Rohtas. .... .... Opposite Party/s ====================================================== Appearance : For the Petitioner/s : Mr. Rajesh Kumar Singh, Mr. Anil Kumar Singh, Advocates. For the Opposite Party No.2.:Mr. S.A. Hussain, Ms. Mina Kumari, Advocates. For the State : Mr. Tarun Prasad Mandal, A.P.P. ====================================================== CORAM: HONOURABLE MR. JUSTICE SHIVAJI PANDEY CAV ORDER 5 26.11.2012 Heard learned counsel for the petitioner and learned counsel for the State as well as learned counsel for opposite party no.2. 2. This application has been filed for quashing the order dated 14.12.2010, passed in S.T. No.177 of 2009, arising out of Dehri P.S. Case No.348 of 2008 by the learned Additional Sessions Judge, Fast Track Court No.II, Rohtas at Sasaram by which the court below allowed the petition filed by the prosecution under section 319 of the Code of Criminal Procedure (hereinafter referred to as „the Code‟) summoning the petitioner to stand the trial. 3. Brief facts of the case is that one Fatima Khatoon, Patna High Court Cr.Misc. No.6605 of 2011 (5) 2 wife of the deceased, namely, Md. Sadruddin made her Fardbeyan on 2.12.2008 stating, inter alia, that one year back one Binod Painter came to her house and demanded Rs.5,00,000/- as an extortion from her husband. When her husband refused to give any extortion, accused persons, namely, Binod Painter, Ajay Choudhary (petitioner), Anand Choudhary (son of Ajay Choudhary), Krishna alias Manjhila Kahar and Laxman Sao threatened, her husband and son would be eliminated. They also threatened on telephone and also from the roof of the Ajay Choudhary (petitioner) but her husband did not succumb and refused to pay extortion money. For last one year Binod Painter did not make any contact but Ajay Choudhary and his son, Anand Choudhary, used to threaten to kill her husband and her son. One week before the date of occurrence the informant would know that Binod Painter had demanded extortion money of Rs.5,000/- from the ready made shop keeper. The proprietor of the shop, namely, Arbind Kumar refused to pay whereupon he threatened, his name was added along with Md. Sadruddin Kabari already in his list. When she could know about the incident, she suggested her husband to inform the police and take police protection but her husband refused to make Patna High Court Cr.Misc. No.6605 of 2011 (5) 3 complaint to police about threat. 4. On the day of occurrence at about 6.30 P.M. the informant received an information that her husband had been shot by criminals, instantly she reached to the Bose Clinic where she found her husband dead and had seen profuse bleeding on his body where she could know that her husband had been killed by the accused persons namedabove in front of the tea shop. Thereafter a case was registered under [STATUTE] and 27 of the Arms Act. 5. In this case five persons, namely, Binod Painter, Ajay Choudhary, Anand Choudhary, Laxman and Manjhila Kahar were made accused by the informant. The police took up investigation and submitted charge sheet bearing Charge Sheet No.42 of 2009 dated 2.3.2009 vide Annexure 3 against Anand Choudhary alias Sonu, Ashok Kumar Gupta alias Ashok Master, Laxman Sah, Manjhila Kahar, Amit Kumar Gupta and investigation was shown to be pending against Binod Painter and Satendra Prasad Gupta. On 13.3.2009 the informant filed protest petition (Annexure-4) against all the accused persons except the present petitioner. The sessions court framed charge against five accused persons Patna High Court Cr.Misc. No.6605 of 2011 (5) 4 namedabove vide order dated 29.5.2009. 6. The police submitted second charge-sheet vide charge- sheet no.272 of 2009 dated 31.7.2009 (Annexure-3/1) against Binod Painter but against Satendra Prasad Gupta investigation was shown to be pending and third charge-sheet was submitted by the police vide Charge-sheet No.114 of 2010 dated 22.4.2010 (Annexure-3/2) against Satendra Prasad Gupta and the case was split up vide S.T. No. 403 of 2009 and vide order dated 11.5.2010 S.T. No.177 of 2009 and S.T. No.403 of 2009 were amalgamated. 7. On 29.7.2010 the prosecution evidence was closed and deposition of accused persons under section 313 of the Code was recorded on 2.8.2010. Defence evidence was closed on 26.8.2010. The prosecution advanced his argument on 21.9.2010 but before the conclusion of the argument of defence an application under section 319 of the Code was filed on 19.11.2010. The court below passed the impugned order and issued summons to the petitioner to stand trial. 8. An application under section 319 of the Code was filed taking a plea that the petitioner was named accused in the First Information Report. In paragraph nos. 6, 9, 10 and 117 of the case diary the name of the petitioner has been Patna High Court Cr.Misc. No.6605 of 2011 (5) 5 mentioned and during trial P.Ws. 1, 4 and 7 have also named Ajay Choudhary (petitioner) who had actively participated in the crime along with other accused persons. 9. Learned counsel for the petitioner has submitted that the evidences available in the First Information Report, case diary and charge-sheet can not be a evidence for purposes of section 319 of the Code. Mere naming the petitioner during trial is not sufficient evidence for calling upon the petitioner to stand trial. He further submits that the improved version of the witnesses during trial is not permissible to be taken into consideration while passing the order under section 319 of the code. He has lastly submitted that ap

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.