IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.35876 of 2008 Jamshed Hussain, son of Niyamat Hussain, resident of village-Ishlampur, P.S. M.H. Nagar Hasanpura, District- Siwan. …………………………………………………….Petitioner. Versus 1. The State Of Bihar. 2. Dina Nath Singh, son of Late Radha Shyam Singh, resident of village-Dahiyawa Tola tali, P.S. Muffasil, District-Saran, Chhapra. ………………………………………Opposite Parties. ---------------------------------- For the Petitioner: Mr. Chandra Kant, Advocate. For the State : Mr. Nand Kishore Prasad, A.P.P. ------------------------------------- O R D E R 4. 23.12.2011. This application, under Section 482 of the Code of Criminal Procedure, is to quash the order dated 18.6.2008 passed by the Additional Sessions Judge, Fast Track Court-II, Saran, Chhapra, in Sessions Trial No.242 of 2008, rejecting the petition of the petitioner filed under Section 227 of the Code of Criminal Procedure for discharge. 2. The brief facts of the case is that on the basis of the fardbeyan of the informant-opposite party no.2, Dina Nath Singh, Chhapra Rail P.S. Case No.89 of 2007 was instituted under Sections 302 and 201 of the Indian Penal Code against 2 unknown on 11.11.2007. In his farebeyan, the informant- opposite party no.2, Dina Nath Singh, has alleged that his younger brother, Upendra Kumar Singh, at about 4.00 A.M. in the morning of 11.11.2007, had proceeded for Chhapra Junction. He came to know from one Mritunjay Singh at about 7.30 A.M. that his younger brother, Upendra Kumar Singh, has been murdered at Railway line, near Jagdamb College, Dhala. On receiving such information, he reached at the alleged place of occurrence and saw that his younger brother, Upendra Kumar Singh, is lying dead pooled with blood in between meter gauge line, where his red coloured hand bag, goggles and white coloured cap were lying. The informant-opposite party no.2 raised suspicion that with an intention to snatching, the criminals have committed this occurrence. It is further alleged that his younger brother, Upendra Kumar Singh, had mobile phone bearing no.9835676665 but that was not there. His brother was also in possession of M.S.T. (from Chhapra to Hajipur) bearing no.19025259, which was valid upto 19.11.2007, cash Rs.2200/- and S.B.I. ATM card bearing no.6220180015300271721. The informant-opposite party no.2, also alleged that his younger brother, Upendra Kumar Singh, was working in Rural Development Department, Patna-2. 3 The police on investigation of the case submitted the chargesheet dated 17.2.2008 against the accused-petitioner under Sections 302 and 379/34 of the Indian Penal Code continuing the further investigation in the case and later on, submitted the supplementary chargesheet against the accused, Mantu Kumar Rai, son of Chhotey Lal Rai, on 31.8.2008 under the aforesaid Sections. After commitment of the case to the court of sessions, numbered as Sessions Trial No.242 of 2008, the accused- petitioner filed the petition under Section 227 of the Code of Criminal Procedure for discharge, which was rejected through the impugned order dated 18.6.2008 passed by the Additional Sessions Judge, Fast Track Court-II, Saran, Chhapra. 3. Learned counsel appearing on behalf of the petitioner made submission that the petitioner is not named in the F.I.R. and nothing incriminating has been collected against him in course of investigation except that from the mobile phone of the deceased, Upendra Kumar Singh, the co-accused, Mantu Kumar Rai, had talked with the petitioner in the evening of the alleged date of occurrence and on interrogation, the petitioner has disclosed that the aforesaid co-accused, Mantu Kumar Rai, asked him to pay the price of the milk as was due against him and nothing else, but the Additional Sessions Judge, Fast Track 4 Court-II, illegally rejected the petition of the petitioner filed under Section 227 of the Code of Criminal Procedure for discharge. 4. On the other hand, learned A.P.P. for the State, made submission that the name of the petitioner has come in course of investigation in paragraphs-87, 110, 115, 118 and 119 of the case diary, as such, the Additional Sessions Judge, Fast Track Court, Saran, Chhapra, has rightly rejected the petition of the petitioner filed under Section 227 of the Code of Criminal Procedure for discharge. 5. It appears from the F.I.R. that on the basis of the fardbeyan of the informant-opposite party no.2, Dina Nath Singh, Chhapra Rail P.S. Case No.89 of 2007 was instituted under Sections 302/201 of the Indian Penal Code against unknown on 11.11.2007 regarding the murder of his younger brother, Upendra Kumar Singh, at Railway line on 11.11.2007 at about 8.05 A.M. On going through the paragraphs of the case diary, as detailed by the learned A.P.P. for the State in his submission, it appears that in course of investigation, the police obtained the print of the details of the call of the mobile phone of the deceased bearing no.9835676665, which was removed from his possession at the time of the alleged occurrence, from the 5 office of the General Manager, Tata Indicom, Patna, in which several mobile numbers have been detailed including the mobile no.9939279073 belonging to the petitioner and on interrogation of the petitioner, as detailed in paragraph-118 of the case diary, the petitioner has admitted that the said mobile is of his brother and he is using the said mobile from six months and also admitted about receiving of the call from the mobile no.9835676665, used by Mantu Kumar Rai to ask him for the payment of the dues of the milk in the evening of the alleged date of occurrence. Except that, there is nothing in the case diary to show the pre-meeting of mind of the petitioner with the co-accused, Mantu Kumar Rai, who had talked with him through the mobile of the deceased or any material showing the criminal conspiracy of the petitioner with co-accused, Mantu Kumar Rai. At least, for framing of the charge, there should be fact showing strong suspicion about the involvement of the accused in the occurrence. There is no doubt that jurisdiction under Section 482 of the Code of Criminal Procedure has to be exercised with great care only to prevent the abuse of the process of any court or otherwise to secure the ends of justice. In the present case, initiation of the criminal proceeding against the petitioner appears to be an abuse of the process of the court in 6 the facts and circumstances, as stated above. 6. Accordingly, the impugned order dated 18.6.2008 passed by the Additional Sessions Judge, Fast Track Court-II, Saran, Chhapra, in Sessions Trial No.242 of 2008 as well as the criminal proceeding, arising out of Chhapra Rail P.S. Case No.89 of 2007, with respect to the petitioner, is hereby quashed and the application is allowed. P.S. (Rajendra Kumar Mishra, J)