IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.38836 of 2008 Angad Tewari, son of Badri Narayan Tewari, resident of village-Jaipur, P.S. Dhansoi, District-Buxar. …………………………………………………….Petitioner. Versus The State Of Bihar……………………….Opposite Party. ---------------------------------- For the Petitioner: Mr. Manohar Prasad Singh, Advocate. For the State : Mr. Dashrath Mehta, A.P.P. -------------------------------- O R D E R 6. 15.12.2011. The petitioner has filed this application under Section 482 of the Code of Criminal Procedure to quash the order dated 12.6.2008 passed by the Chief Judicial Magistrate, Buxar, in Nawa Nagar P.S. Case No.13 of 2008, taking cognizance of the offence under Sections 302/34 of the Indian Penal Code and Section 27 of the Arms Act against the petitioner and other F.I.R. named accused, namely, Manish Kumar Sah and Anil Sah. 2. In brief, the case is that on the basis of the self statement of Bhim Ram, A.S.I. of Nawa Nagar Police Station, Nawa Nagar P.S. Case No.13 of 2008 was instituted on 30.1.2008 under Sections 302/34 of the Indian Penal Code and 2 Section 27 of the Arms Act against Manish Kumar and Anil Kumar. It is alleged in the F.I.R. by Bhim Ram, the A.S.I. of Nawa Nagar Police Station, that on 29.1.2008, he alongwith other police personnel was on patrolling duty in the night. In course of patrolling duty, he received information about sustaining firearm injury by a person in course of entertainment of the dance taking place in the Pandal on the occasion of the marriage of the daughter of Ram Awtar Sah in village-Dhansoi. Thereafter, he alongwith other police personnel proceeded there. When he reached there, he saw that there was stampede amongst the people in the Barat and the people were fleeing hither and thither. In the north of the Pandal, a person was seen lying pooled with blood, who was found dead by sustaining firearm injury on the head. On query being made by him from the people, who were fleeing away hither and thither, told the name of the deceased as Deepak Kumar, son of Manji Singh, resident of village-Nawa Nagar, P.S. Nawa Nagar, District-Buxar. They also disclosed that a person who had come in a Barat from Dhansoi having worn the red colour shirt, in course of hot exchange of words with deceased Deepak Kumar, at the time of entertaining the dance of dancer, shot fired at the deceased, whose name is 3 Manish Kumar, who after making fire fled away from the place of occurrence with his associate, Anil Kumar, who was also indulged in hot exchange of words in course of entertaining the dance of the dancer. On investigation, the police submitted the chargesheet against the F.I.R. named accused, Manish Kumar and Anil Kumar, showing Anil Kumar as absconder continuing the investigation against the non F.I.R. named accused, Rajendra Singh, son of Jalim Singh. 3. The leargned Chief Judicial Magistrate, Buxar, on perusal of the chargesheet and the case diary vide order dated 12.6.2008 arrived at the conclusion that prima facie case under Sections 302/34 of the Indian Penal Code and Section 27 of the Arms Act are made out against the F.I.R. named accused, Manish Kumar and Anil Kumar and also against the non F.I.R. named accused, Angad Tiwari (petitioner) and, accordingly, took the cognizance of the offence under Sections 302/34 of the Indian Penal Code and Section 27 of the Arms Act and ordered to separate the record with respect to the non F.I.R. named, Rajendra Singh @ Mutia, against whom investigation was shown to be going on and to transfer the record of the case to the court of Sri S. Singh, Judicial 4 Magistrate, Buxar, for commitment. 4. Learned counsel appearing on behalf of the petitioner submitted that neither the petitioner is named in the F.I.R. nor any specific overt act has been attributed against him in the statements of the witnesses in course of investigation and the police had also not submitted the chargesheet against him and in spite of that the Chief Judicial Magistrate, Buxar, took the cognizance of the offence under Sections 302/34 of the Indian Penal Code and Section 27 of the Arms Act against the petitioner also, which is illegal and amounts to abuse of the process of the court. It has also been submitted that the F.I.R. named accused, Manish Kumar and Anil Kumar, on being the record separated in respect to them, numbered as Sessions Trial No.202 of 2008, faced trial and have been acquitted of the charges by the court of Additional Sessions Judge, Buxar, which would appear from Annexure- ‘3’ of the supplementary affidavit of this application. 5. Learned A.P.P. for the State submitted that there is no illegality in the impugned order dated 12.6.2008 passed by the Chief Judicial Magistrate, Buxar, against the petitioner also as the name of the petitioner has come in the statements of the witnesses in course of investigation in paragraphs-17, 5 18, 19 and 20 of the case diary but very fairly conceded that it has come in the statements of the witnesses in the aforesaid paragraphs that the petitioner also moved from the place of occurrence with the other accused creating terror. 6. From the F.I.R., it appears that the petitioner is not named in the F.I.R. and on going through the paragraphs as detailed by the learned A.P.P. for the State, it appears that it has come that the petitioner alongwith F.I.R. named accused moved from the place of occurrence creating terror. Nothing specific has come in the statements of the witnesses about any overt act or pre-meeting of mind of the petitioner with the accused , Manish Kumar, against whom there is allegation of firing at the deceased and accused, Anil Kumar, against whom allegation is of instigating to the accused, Manish Kumar. 7. Under the aforesaid facts and the circumstances, the impugned order dated 12.6.2008 passed by the Chief Judicial Magistrate, Buxar, in Nawa Nagar P.S. Case No.13 of 2008, taking cognizance of the offence under Sections 302/34 of the Indian Penal Code and Section 27 of the Arms Act against the petitioner also appears to be an abuse of the process of the court. 8. Accordingly, the impugned order dated 12.6.2008 6 passed by the Chief Judicial Magistrate, Buxar, in Nawa Nagar P.S. Case No.13 of 2008, with respect to the petitioner, is hereby quashed and the application is allowed. P.S. (Rajendra Kumar Mishra, J)