IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.5660 of 2007 SURENDRA SINGH @ SURENDRA PRASAD SINGH Versus STATE OF BIHAR & ORS ----------- 7 29-08-2008 Heard Sri Ambika Bhagat. the learned counsel for the petitioner and Sri Jharkhandi Upadhaya, the learned A.P.P. for the State. The petitioner who is not named in the F.I.R. but his name cropped up in course of investigation of Ujiyarpur P.S. Case No.84 of 2001, registered under Section 395 /397 I.P.S. is aggrieved by order dated 21.12.2006 passed in the consequential Sessions Trial No.649 of 2006 by the learned Presiding Judge, F.T.C.No.III, Samastipur, whereby he has rejected the prayer of the petitioner for his discharge under Section 227 Cr.P.C. and has prayed for the quashing of the same. The aforesaid case was instituted on the basis of the fardbeyan given by one Dhanauki Pandit at 5.45 A.M. on 16.7.2001 in respect of an occurrence of loot and dacoity which took place earlier in the night at around 11 P.M. It has been alleged that while the informant with his family members were sleeping at the Darwaja , 5-6 persons surrounded him whom he wrongly understood to be the police on patrolling duty but when they abused and tied his hands and legs with Gamchha and entered into the courtyard he realized that they were dacoits and these about 20-25 in number started looting the house-hold articles. It is also alleged that the accused persons had - 2 - also committed dacoity in the house of Ram Dayal Pandit. The informant has given a description of the physique and wearing apparels of the dacoits who were variously armed and some of them had camouflaged their faces. Some of the villagers were also said to have been assaulted and they eventually fled away after exploding bombs. It has been submitted on behalf of the petitioner that he is not named in the F.I.R. and he was arrested on suspicion by the police on 17.1.2006. It has further been submitted that although the informant and his family members along with other co-villagers were eye witnesses of the occurrence yet none of them had named the petitioner during the course of investigation nor the petitioner was put on T.I.Parade and that apart none of the looted articles were recovered from his person or possession. Even the witnesses who were examined during the investigation did not name the petitioner or point an accusing finger at him. Even Sube Lal Paswan who was arrested in course of investigation and confessed his guilt did not name the petitioner although he named the other members of the gang. It was only the Investigating Officer who had made requisition to the court for arresting the petitioner based on the confessional statement of Sube Lal Paswan. On the aforesaid premise, it has been submitted that there being no iota of evidence against the petitioner the impugned order was an abuse of the process of the court. Apparently, there is no iota of evidence against the - 3 - petitioner, although the learned Presiding Judge had mentioned that the petitioner’s name was sent up with a note showing absence of evidence against him. No reason has been assigned as to why the prayer of the petitioner was rejected. Apparently, there being no material evidence against the petitioner in the case diary, the rejection of his petition for discharge is an apparent abuse of the process of the court. The order so far the petitioner is concerned is hereby quashed and the application is allowed. However, it is made clear that if in course of evidence during the trial the name of the petitioner crops up as a participant in the crime then the trial court shall be at liberty to summon him under Section 319 Cr.P.C. ( Abhijit Sinha, J) NKS/-