IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.23850 of 2009 1. RAM JATAN YADAV, SON OF LATE JAGU YADAV 2. DHARMENDRA YADAV, SON OF RAM JATAN YADAV 3. RAM NARESH YADAV @ AMBIKA YADAV ALL ABOVE RESIDENT OF VILLAGE KOHRAUL, P.S. KARPI, DISTRICT ARWAL. ---- PETITIONERS Versus 1. THE STATE OF BIHAR 2. AMRENDRA NARAYAN SAO, SON OF NANDLAL SAI, RESIDENT OF VILLAGE KOHRAUL, P.O. BAJITPUR, P.S. KARPI, DISTRICT ARWAL. ---- OPPOSITE PARTIES For the petitioners :- Mr. Jitendra Singh, Sr. Advocate Mr. Bindhyachal Singh, Advocate Mr. Umesh Kumar, Advocate For the State :- Mr. Jharkhandi Upadhyay, A.P.P. For the opp. party :- Mr. Ashwani Kumar Singh, Sr. Advocate Mr. Pankaj Kumar Singh, Advocate Mr. Pankaj Kumar Das, Advocate ----------- 2 15.4.2010 Heard the parties. This application has been filed against the order dated 22.5.2009 by which the application under Section 216 of the Code of Criminal Procedure has been allowed. The facts of the case need to be referred considering the arguments advanced on behalf of both the parties. One Mukesh and Saveena Kumari were murdered on the same day. The dead bodies of the two persons were found at two different places. A case was instituted numbered as Karpi P.S. Case No. 09 of 2007 by the informant Amrendra Narayan Sao who was representing the boy’s side, against 11 accused persons alleging that Mukesh has been killed by the family members of Saveena Kumari. Another F.I.R. was instituted by the mother of Saveena Kumari alleging that Saveena has been killed by the family members of Mukesh. It transpires during investigation that both Mukesh and Saveena were in love and both of them had been murdered. Both the families have 2 made allegations and counter allegations against each other. The investigation in Karpi P.S. Case No. 09 of 2007 proceeded and charge sheet was submitted initially against Ram Jatan Yadav and Dharmendra Yadav for committing the murder of Mukesh. Subsequently a second charge sheet was submitted on 27.5.2008 in which Ram Naresh Yadav was also made accused for committing the murder of Mukesh. Charges were framed on 21.3.2009 in which it was alleged that the accused were responsible not only for the murder of Mukesh but also for the murder of Saveena. These charges were framed with respect to the accused Ram Jatan Yadav and Dharmendra Yadav. The present petition has been filed for amending the charge by holding that Ram Naresh was also responsible for the murder of Mukesh and Saveena like the other two co-accused persons. The order impugned allowing the application has been challenged in this Court. During argument, Mr. Jitendra Singh learned senior counsel appearing on behalf of the petitioners has submitted that in the case filed on behalf of the mother of Saveena, cognizance has been taken on 25.2.2010 vide annexure-10 after examining the I.O. under Section 202 of the Code of Criminal Procedure and submits that this Court should direct that the trial of the two cases should be held one after the other as envisaged in the judgment of the Supreme Court in the case of Balbir Vs. State of Haryana & Anr. reported in 2000 SCC (Cri) 160. 3 The counsel appearing on behalf of the opposite parties has supported the order impugned and submitted that since the application has been allowed under Section 216 of the Code of Criminal Procedure, the prayer made by the counsel for the petitioners is unwarranted in the facts of this case specially in view of two facts. Firstly, that the First Information Report filed on behalf of the mother of Saveena was found to be false, after which a protest was filed which was also dismissed by the Chief Judicial Magistrate and it was only after the revisional Court set aside the dismissal order and passed an order for further enquiry that cognizance was taken in the case as late on 25.2.2010. It is further submitted on behalf of the opposite parties that 10 witnesses including the doctor and the I.O. have been examined and the trial is nearing the end. It is submitted that the petitioners would have ample opportunity to lead evidence to rebut the evidence led by the opposite parties and to prove their own case and pass an order in terms of the judgment referred to, and the matter does not come within the purview of Section 482 of the Code of Criminal Procedure, as the petitioners have challenged the order dated 22.5.2009, the Court should restrict itself to pass an order either accepting or rejecting the plea of the petitioners with respect to the order impugned. Let me deal with the order dated 22.5.2009. The order is a speaking order giving reason for altering the charges. The Court has considered the fact that another case has been filed on behalf of 4 the petitioners, making allegations against the family members of the deceased Mukesh Kumar and holding them responsible for the murder of Saveena Kumari. It is, therefore, prayed that the name of the deceased Saveena Kumari should be deleted from the charges. The Court has referred to the material in the case diary and has come to the conclusion that the charges can be altered and the petitioner Ram Naresh Yadav should also be charged for the murder of Saveena. As far as the order is concerned, there is no illegality or irregularity in the order. Now considering the submissions made on behalf of the petitioners with respect to the case of Balbir Vs. State of Haryana, I would like to quote the opening paragraph of the judgment. “Seldom would the courts have come across such a weird scenario as the present case has presented. In respect of one victim in one murder episode two diametrically divergent stories were put to test in two different trials before the same Sessions Court and both were prosecuted by the same Public Prosecutor. The Sessions Court rejected the story, which the police had propounded, after a full-fledged investigation, as untrue but the same trial court approved the other divergent version as the true story. Resultantly the man whom the investigating agency found to be the real murderer was shown his escape route while the man whom the other side dubbed as the culprit stands convicted and sentenced to imprisonment for life.” The case of the opposite party in the present circumstances is just is the reverse. The petitioners’ case is proceeding on the basis of the protest-cum-complaint whereas the opposite parties’ case is on the basis of the First Information Report. The other aspect of the matter is now that the case has proceeded to the extent that 10 witnesses examined including the I.O. and the Doctor, which suggest that the prosecution has almost closed its case 5 as far as its examination of the witnesses are concerned, it would be difficult for this Court exercising power under Section 482 of the Code of Criminal Procedure to stay the trial of Sessions Trial No. 55 of 2008, 16 of 2008, 90 of 2008 and 28 of 2008 at this stage when the trial is near the end. The case filed on behalf of the petitioners will obviously proceed on its own merit on the basis of the evidence which is recorded in the case. In the circumstances aforesaid, I find no illegality in the order in question. This application is dismissed. A.F.R./ Sanjay (Sheema Ali Khan, J.)