IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.35674 of 2009 RAM NARESH DUBEY, son of Lat Ram Deo Dubey, village Kathaulia, PS Baruraj, District, Muzaffarpur - Petitioner. Versus STATE OF BIAHR ----------- For the petitioner : Mr. Bhavesh Kumar, Advocate. For the S t a t e : Mr.Jharkhandi Upadhyay, A.P.P. … 3 29.10.2009 Heard learned counsel for the petitioner and the counsel appearing on behalf of the State. The petitioner has challenged the order, dated 7.9.2009 passed by 4th Addl. Sessions Judge, Muzaffarpur in S.T. No. 467/2005, arising out of Complaint Case No. C157/1987, by which the court below has refused to discharge him for the offences alleged to have been committed under section 302 of the Penal Code. An F.I.R. was instituted in which final form was submitted. A complaint was also filed with respect to the same offence and finally on 31.3.1993 the court took cognizance on the basis of an enquiry under section 202 of the Code of Criminal Procedure (hereinafter referred to as ‘the Code’). The order taking cognizance indicates that the petitioner was not amongst the persons who were named as accused in the complaint petition and that no cognizance was taken against the petitioner. In the meanwhile one Jagnarain Dubey filed an informatory petition before the Chief Judicial Magistrate, Muzaffarpur in which the petitioner has been shown as accused no.1. The contents of the informatory petition are that there is a case against the opposite 2 party Jai Govind Singh vs. Jai Narain Singh pending in the court of Sri S.K. Srivastava, Judicial Magistrate, Ist Class, Muzaffarpur, in which his son Shubhan Dubey was to give evidence. It is alleged that the five accused persons are not permitting his son to give evidence in that case. That application was filed on 18.7.1989. No substantive case was recorded on the basis of this informatory petition. The court did not proceed either to send it to the police to institute an F.I.R. or to treat it as protest cum complaint petition and examine witnesses to support the allegations made in the informatory petition. Thereafter, it transpires that in Complaint case No. 157/1987 processes were issued by the court under sections 82 and 83 of the Code. On 27.7.1998 an order was passed in which it is stated that the order, dated 31.3.1993, i.e. the order taking cognizance, does not indicate the names of the accused persons and as such the court has indicated the names of the accused persons, namely, Gopalji Singh, Ramchandra Singh, Dhrub Narain Singh, Sheoji Singh, Lalbabu Singh and Vijay Singh. It is clear that the petitioner is not amongst the accused persons. Nevertheless, it transpires that the petitioner was arrested in the case on 21.4.2005 and later released on bail by this court. After that, the case was transferred to the court of the 4th Additional Sessions Judge, Muzaffarpur for trial. The petitioner filed an application for discharge on 14.12.2005 which has been disposed of vide order, dated 27.7.2009. It is apparent that the petitioner is not accused and is not named in the F.I.R. nor was his name revealed in the complaint petition-cum- 3 protest petition or the statements made under section 202 of the Code, taken at the time of examination of witnesses on solemn affirmation and the only material that has come against the petitioner is that he along with others was not permitting Shankar Dubey to depose in the case mentioned in the informatory petition. On the basis of such informatory petition, no substantive case was instituted. The result is that the petitioner without being made accused in any case is now facing trial and the court has refused to discharge him. It is unimaginable that a citizen should be made to face trial although his name does not find place amongst the arrayed accused persons in the F.I.R., or in the complaint-cum-protest petition or in an enquiry under section 202 of the Code. It would be a traversity of law if the petitioner should have to face trial without there being any substantive case against him, merely on the ground that he has been named in the informatory petition and as such I find that the order impugned is illegal and is, therefore, quashed so far as it relates to the petitioner. In the result, this application is allowed. Haque/A.F.R. (Sheema Ali Khan, J.)