IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.4672 of 2008 ASHUTOSH KUMAR ,Son of Ram Sanjeewan Singh, resident of Mohalla-Amgola ( Near Gyan Kala School), P.S.- Kazimohammadpur, District- Muzaffarpur ------------- Petitioner Versus THE STATE OF BIHAR ------ Opp.Party ----------- For the petitioner : M/S Devendra Kumar Sinha, Sr.Advocate,and Ram Naresh Singh, Advocate. For the State : Mr. Jharkhandi Upadhaya, A.P.P. ------------ O R D E R The petitioner, one of the F.I.R. named accused of Sessions Trial No.103 of 2007, arising from the commitment of Mithanpura P.S. Case no.12 of 1998, has preferred this application for quashing of the order dated 19.12.2007 passed therein by Sri S.K.Pandey, learned Presiding Judge, Fast Track Court no.III, Muzaffarpur, whereby he has rejected the petition filed under Section 227 Cr.P.C. by the petitioner for his discharge and has directed him to be physically present in court on the next day for framing of charges under Sections 399 and 402 I.P.C. The prosecution case as founded on the self statement recorded by the S.I.-cum- Officer Incharge, Mithanpura Police Station at 20.15 hrs. on 19.1.1998 wherein it was stated that earlier that evening while he along with a police party was on evening patrolling duty at about 18.45 hrs. he received confidential information that some miscreants had gathered and were making plans for committing some offence in the Khandhar in front of Prabhat Zarda Factory . On raiding the Khandhar people started fleeing of whom three persons - 2 - were apprehended on chase and they disclosed their names as Mintu Kumar, Ranjeet Kumar and Ashutosh Kumar. They also disclosed that the kingpin, Suresh Kumar, who had managed to escape, had collected them to rob a Sardarji while he would be returning home after closing his shop in Motijheel . It is alleged that on search, a live bomb was recovered from the possession of Ranjeet Kumar while a loaded country made pistol and a live bomb was recovered from the possession of Mintu Kumar which were seized under a seizure list. Assailing the impugned order, it was submitted on behalf of the petitioner that neither in the F.I.R. nor in course of investigation had any positive material been found to show the complicity of the petitioner in the crime save and except that he had been apprehended while fleeing. It was also submitted that even if the statements of the witnesses examined in course of investigation were accepted in its entirety even then no case for conviction of the petitioner could be made out .On this premise it was submitted that under such circumstances the prayer of the petitioner for his discharge ought to have been allowed and he deserved to be discharged. The learned A.P.P. sought to defend the impugned order by submitting that the petitioner along with two others were apprehended while fleeing and although no recovery was made from the petitioner, incriminating articles were recovered from his associates and all of them had confessed that they along with the escapee kingpin, Suresh Kumar, were waiting to rob the Sardarji and in the circumstances a clear case under Sections 399 and 402 I.P.C. was made out against the - 3 - petitioner and the trial court has justifiably rejected the petitioner’s prayer for discharge. The submissions of the learned A.P.P. appears to be too far fetched to be accepted, as the same appear to be based on presumptions and probabilities. Having considered the submissions advanced by the parties and taking into consideration the facts and circumstances, I am of the view that there is an apparent dearth of material to show the complicity or involvement of the petitioner in the crime. In that view of the matter I have no option but to quash the impugned order and direct the petitioner to be discharged. However, it is made clear that if in course of the trial material showing the complicity or involvement of the petitioner in the crime comes to light, the trial court shall be at liberty to summon him under Section 319 Cr.P.C. ( Abhijit Sinha, J ) Patna High Court,Patna Dated : the 3rd March,2009 Nawal Kishore Singh/ A.F.R.