IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.55490 of 2006 YOGENDRA SHARMA Versus STATE OF BIHAR & ANR ----------- For the petitioner : Mr. Shivendra Prasad , Advocate For the State : Mr. Jharkhandi Upadhaya, A.P.P. For Opp.Party no.2 : M/S Rajni Kant Singh, and Surendra Kumar Mishra, Advocates. _________ O R D E R The petitioner whose name did not figure in the fardbeyan of Asmin Khatoon but who subsequently was chargesheeted has preferred this application for quashing of the order dated 18.11.2006 passed by the learned Presiding Judge, Fast Track Court No.IV, Jahanabad, in Sessions Trial No.43 of 2005 arising out of Shakurabad P.S.Case no.73 of 2001, whereby the petition under Section 227 Cr.P.C. has been rejected. According to the fardbeyan of Asmin Khatoon, impleaded herein as Opp.Party no.2, at about 4 P.M. on 12.10.2001 she had ventured to the flour mill of Ahiram Sharma when she heard two sounds of firing. She along with other co-villagers rushed towards the road and saw the F.I.R. named accused, all variously armed with deadly weapons escaping towards the north. On proceeding a little further she found the dead body of her husband lying on the ground. She was informed by some co-villagers that all the accused persons were indulging in taking alcohol at the dalan of Binay Mahto and as her husband arrived he was shot dead by the accused. It is alleged that - 2 - all the accused persons having formed an unlawful assembly armed with lethal weapons had killed her husband in execution of the conspiracy hatched by Binay Mahto and Chandradeo Mahto. It is alleged that two days prior thereto co-villager Bhendar Sharma had asked her husband to join his party for which he would receive money and failure to join would lead to dire consequences. It has been submitted on behalf of the petitioner that there was no material on record on the basis of which the nexus of the petitioner with the crime could be established. Referring to several paragraphs of the case diary, it was sought to be submitted that none of the persons examined by the police in course of investigation under Section 161 Cr.P.C. deposed in respect of the complicity of the petitioner in the alleged crime. In this connection it was sought to be submitted that while framing charge the Judge has to consider as to whether there is sufficient ground for presuming or even suspecting that the accused has committed the offence and for this the court was required to evaluate the materials available on the record to find out if the materials collected during the investigation, taken at its face value, discloses the complicity or participation of the accused in the crime. In the impugned order of the learned Presiding Judge rejecting the petition of the petitioner for his discharge, the only material available against the petitioner was paragraph 33 of the case diary.What paragraph 33 discloses is that Yogendra Sharma is an absconder in connection with other earlier cases. However, it does not disclose the petitioner’s connectivity with the present case. This lone - 3 - sentence in the whole of the case diary against the petitioner cannot be deemed to be sufficient for the court to come to a conclusion that there was strong suspicion against the petitioner to presume of his guilt. It is almost certain that the trial against the petitioner would only be an exercise in futility and it would be advisable to truncate or snip the proceeding at the stage of framing of charge. The trial court, to my mind, has erred in its judgment. Accordingly, the application is allowed and the impugned order is hereby quashed. The petitioner shall stand discharged. However, it is made clear that if in course of the trial materials come to light regarding the participation of the petitioner in the alleged crime, then the court shall be at liberty to summon him under the provisions of Section 319 Cr.P.C. ( Abhijit Sinha, J) Patna High Court, Patna Dated: the 5th September,2008 Nawal Kishore Singh/ A.F.R.