IN THE HIGH COURT OF JUDICATURE AT PATNA Cr. Misc. No.10223 of 2008 1. NAGINA PANDIT 2. GAUTAM PANDIT 3. SABHA PANDIT ALL ARE SONS OF YAMUNA PANDIT, RESIDENTS OF VILLAGE DEOKULI, P.S. EKMA, DISTRICT SARAN .. PETITIONERS Versus THE STATE OF BIHAR .. OPPOSITE PARTY **** /2/ 23.06.2010 This is a petition for quashing the order, dated 04.02.2008, passed in Session's Trial No. 715 of 2005 arising out of Ekma P.S. Case No. 174 of 2004 for offence under Sections 302 and 120B of the Penal Code, by which the summons have been ordered to be issued against the petitioners under Section 319 of the Criminal Procedure Code. 2. The learned counsel for the petitioners submits that the petitioners have not been named in the first information report. The prosecution case in the first information report is that the informant, Ganesh Ram, had land dispute with Nagina Pandit, Sabha Pandit, Gautam Pandit and Jai Prakash Pandit and the civil suit is going on since last three years and all the four persons were threatening the informant to withdraw the case else he will be done to death. It has further been alleged 2 that the entire family of the informant was sleeping after taking meal in the night at about 10.30, the informant got a sound of firing and when came out then saw that Dahari Pandit, armed with gun, and his nephew, Jai Prakash Pandit, is standing when the informant made a hulla Dahari Pandit and Jai Prakash Pandit rushed to assault him then the informant started fleeing away, when the informant went near to Dinesh Ram then saw the fire arms injury in his neck and blood oozing out and Dinesh Ram has already been dead. The informant claimed that Nagina Pandit, Dahari Pandit, Sabha Pandit, Gautam Pandit and Jai Prakash Pandit under a conspiracy has done the death of Dinesh Ram. On the said fardbeyan, first information report was lodged and charge sheet submitted against accused, Dahari Pandit, showing the accused Sabha Pandit, Gautam Pandit and Nagina Pandit as innocent. 3. However, during the trial five persons were examined as witness, who named Nagina Pandit, Sabha Pandit and Gautam Pandit and the nature of the evidence adduced that Nagina Pandit, Sabha Pandit and Gautam Pandit were standing at a distance of ten feet where Dinesh Ram was shot and on hulla when Dahari Pandit and Jai Prakash Pandit started fleeing on the 3 hulla at that time Nagina Pandit, Sabha Pandit and Gautam Pandit also fled away. 4. The learned counsel for the petitioners submits that there is enmity and the litigation is going on and, hence, they have falsely been implicated. Five witnesses have been examined, four have deposed and on the basis of their evidence the impugned order issuing summon against the petitioners have been passed under Section 319 of the Criminal Procedure Code. 5. However, it is true that at the stage of calling an accused under Section 319 of the Criminal Procedure Code the entire conspectus of the case requires to be looked. However, it is true that in the first information report there is no allegation about any overt act though the name of these petitioners have been mentioned in the first information report about the land dispute and civil litigation going on between the parties and these petitioners threatened the informant and the prosecution party to compromise or withdraw the case else they will be done to death. However, it is true that in the first information report petitioners have though been named in the first information report no overt act attributed, but, during the 4 trial the witness has named the petitioners amongst the persons present at the place of occurrence and fleeing away along with the accused persons. 6. The learned counsel for the petitioners, however, contends that there is no any specific role has been assigned except on hulla when the witness reached there these petitioners also fled away along with co-accused. 7. Hence, a plea of false implication has been taken, but, at this stage it is the discretion of the Magistrate, who is in seisin of the case and had the occasion to see the witness and, hence, the discretion exercised by the learned Magistrate is not required to be disturbed regarding the plea of false implication. 8. Having regard to the facts and circumstances, I am not inclined to interfere with the impugned order. 9. This application is dismissed. S.A. ( Gopal Prasad, J. )