Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.22825 of 2011 ====================================================== Bashisth Narayan Singh @ Bashisth Singh, son of Late Bhikharee Singh, Resident of Village - Woob, P.O. – Bharoob, P.S. – Obra, District - Aurangabad. .... .... Petitioner/s Versus The State Of Bihar .... .... Opposite Party/s ====================================================== Appearance : For the Petitioner/s : Mr. For the Opposite Party/s : Mr. ====================================================== CORAM: HONOURABLE MR. JUSTICE RAKESH KUMAR ORAL ORDER 2 30-11-2012 Heard Sri Bishnu Kant Dubey, learned counsel for the petitioner and Sri Shyam Kumar Singh, 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 18.6.2011 passed in Sessions Trial No. 22 of 2011 by Sri Jagdish Prasad Mishra, learned Additional Sessions Judge, F.T.C. III, Aurangabad (hereinafter referred to as F.T.C.). By the said order learned F.T.C. has rejected the petition filed on behalf of the petitioner under Section 227 of the Cr.P.C. for his discharge. Sri Dubey, learned counsel for the petitioner submits that the petitioner at the time of occurrence was not present at the place of occurrence rather he had gone to New Delhi to attend a Patna High Court Cr.Misc. No.22825 of 2011 (2) dt.30-11-2012 2/7 proceeding before National Consumer Disputes Redressal Commission as summoned by the Commission. Short fact of the case is that on the basis of fardbyan of one Rabindra Kumar Singh, an F.I.R. vide Obra P.S. Case No. 98 of 2006 was registered on 19.10.2006 for offences under [STATUTE] and Sections 25(1) (1-b) /26/27 of the Arms Act. In the F.I.R. the informant, who had received fire arm injuries has made specific statement that in the occurrence the petitioner had also participated along with other accused persons. In the said occurrence the informant had received two fire arm injuries. On the basis of fardbyan F.I.R. was lodged. In the case number of charge sheets were submitted, and finally, on 31.8.2007 the petitioner was also forwarded as accused and his name was mentioned in column no. 11 of the charge sheet. At the stage of charge petition was filed on behalf of the petitioner for his discharge on the ground of alibi. Learned counsel for the petitioner while assailing the order submits that from perusal of Annexure - „2 Series‟ it is evident that on the date of occurrence the petitioner was not at all present at Aurangabad rather he had boarded a train namely, Mahabodhi Express on 18.10.2006 for going to New Delhi. Patna High Court Cr.Misc. No.22825 of 2011 (2) dt.30-11-2012 3/7 Learned counsel for the petitioner further submits while referring to Annexure - „2 Series‟ at page 28 of the petition that petitioner had filed a complaint before the National Consumer Disputes Redressal Commission and he was summoned by the Commission to appear in the case in person on 19.10.2006 i.e. one day after the occurrence in the present case. He has also referred to Annexure - „A2‟ to the petition at page 29 i.e. a photo copy of railway ticket and highlighted that on 18.10.2006 itself the petitioner had boarded the train for going to New Delhi. He has further drawn my attention to Annexure – „2 Series‟ at page 30 i.e. a photo copy of order dated 19.10.2006 of the National Consumer Disputes Redressal Commission, New Delhi. He submits that he was very much present before the National Consumer Disputes Redressal Commission at New Delhi on 19.10.2006 and he had gone on 18.10.2006 prior to the occurrence to New Delhi. He submits that in the case diary there were sufficient materials to suggest that the petitioner was not present at the place of occurrence. He further, relying on a judgment of the Apex Court reported in A.I.R. 1992 SUPREME COURT 604 (State of Haryana and others v. Ch. Bhajan Lal and others) paragraph no. 108(7) submits that the petitioner since has been made accused maliciously, the Patna High Court Cr.Misc. No.22825 of 2011 (2) dt.30-11-2012 4/7 prosecution is liable to be set aside. He has highlighted that in the fardbyan itself it was disclosed by the informant that there was enmity between the parties. Learned counsel for the petitioner has also submitted that after coming from New Delhi and noticing the fact that petitioner was made accused, he had filed application before the Investigating Officer, that he was not present at the place of occurrence. On aforesaid grounds, he has prayed for setting aside the order impugned and for his discharge from the case. Besides hearing learned counsel for the parties, I have also perused the materials available on record. In normal course while hearing a petition under section 482 of the Code of Criminal Procedure, it is appropriate to restrain the court itself from perusing documents which have not been got exhibited. The reliance has been placed on Annexure - „2 Series‟ which are photo copies of certain documents. Moreover, on the basis of only aforesaid documents one can not come to a conclusive finding that the petitioner was actually not present at the place of occurrence. In fact, the informant, who is injured, had made specific statement that petitioner was present at the place of occurrence and he participated in the occurrence. Besides this, learned Sessions Judge while rejecting the petition for discharge Patna High Court Cr.Misc. No.22825 of 2011 (2) dt.30-11-2012 5/7 on the plea of alibi, has discussed number of paragraphs of the case diary. It appears that number of witnesses have corroborated the fact that petitioner was present at the place of occurrence. Moreover, the court is of the opinion that at the time of charge only requirement is to see as to whether prima facie case is made out or not. The word “prima facie” has been discus

Applicable IPC Section: 149

Statute Text:
Section 149 of the Indian Penal Code. If an offence be committed by any member of an unlawful assembly, every other member of such assembly shall be guilty of the offence. If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence.