CRIMINAL MISCELLANEOUS No.13753 OF 2000 In the matter of an application under Section 482 of the Code of Criminal Procedure ------------- Syed Md. Shamim Ahmad @ S.M.Shamim Ahmad @ Md. Shamim, Son of Late S.M.Yahya, resident of Haroon Nagar Colony, Police Station- Phulwarisharif, District-Patna, at present posted as Private Secretary to the Accountant General ( Au)-1, Bihar, Birchand Patel Marg, Patna ------------------- Petitioner Versus 1. THE STATE OF BIHAR 2. Sohrab Khan, Son of Izhar Khan, resident of Mohalla- Kaghzi, P.S. Biharsharif, District-Nalanda ------------ Opp.Parties. --------------- For the petitioner: S/Sri Sadaquat Hussain, Sr. Advocate Chandra Mauli Prasad Singh, Advocate For the State: Damodar Pd. Tiwary, A.P.P. ------------------ P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR Rakesh Kumar, J. The sole petitioner, while invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, has prayed for quashing of an order dated 7.3.2000 passed by the 6th Addl.Sessions Judge, Nalanda at Biharsharif in Sessions Trial No.267 of 1995 arising out of Biharsharif P.S. Case No.245 of 1991. By the said order, the learned 6th Addl.Sessions Judge has rejected the discharge petition filed under Sections 227 and 228 of the Code of Criminal Procedure filed on behalf of the petitioner. 2. Short fact of the case is that an F.I.R. vide Biharsharif P.S. Case No.245 of 1991 was registered against 12 named accused persons including the petitioner. However, after investigation, the police submitted chargesheet only against six accused persons. After submission of chargesheet , learned Magistrate took cognizance of offences against six accused persons , who were 2 forwarded by the police and in respect of petitioner and five other accused persons, the learned Magistrate discharged them by the same order, i.e. order of cognizance in respect of chargesheeted accused persons. Against the said order by which the learned Magistrate had not taken cognizance against six accused persons as they were discharged, the informant of the case approached this Court, while invoking its writ jurisdiction, vide Cr.W.J.C.No.695 of 1994. This Court by its order dated 27.10.1994 directed the trial court to examine as to whether six accused persons, who were discharged , can be put on trial after considering the relevant materials on record and if the trial court finds that there are materials then the court can summon the accused persons for trial. Subsequently, the trial court, i.e. the court of Session on the basis of materials available on record, while exercising power under Section 193 of the Code of Criminal Procedure, summoned the remaining six accused including the petitioner by its order dated 11.1.1996 . Against the order dated 11.1.1996, the petitioner approached this Court by filing a revision vide Cr.Revision No.86 of 1996. However, the said revision was dismissed as withdrawn on the submission made on behalf of the petitioner that he would place the case before the trial court itself at the time of framing of charge. At the stage of charge, a petition under Sections 227 and 228 of the Code of Criminal Procedure was filed on behalf of the petitioner. Again the same prayer was reiterated on behalf of the petitioner that once the petitioner was discharged by the learned Chief Judicial Magistrate, the learned Sessions Judge at subsequent stage was not having any jurisdiction to summon the petitioner for facing the trial. The second ground, which was taken on behalf of the petitioner, was that on the basis of materials available on record, it was a case for an offence under Section 324 of the Indian Penal Code and, as such, the case was required to be 3 remitted back to the court of the learned Magistrate from the court of Session. After hearing the parties, the learned 6th Addl.Sessions Judge, Nalanda assigning a detailed reason rejected the prayer of the petitioner on both the counts i.e. either for discharge or for remitting back the matter to the court of the learned Magistrate. 3. Aggrieved with the order of rejection of the petition filed under Sections 227 and 228 of the Code of Criminal Procedure by the petitioner, the petitioner approached this Court by filing the present petition. 4. Sri Sadaquat Hussain, learned Senior Counsel appearing on behalf of the petitioner, while challenging the impugned order, has argued at length that in the facts and circumstances of the present case, the learned Sessions Judge was not authorized to summon the petitioner under Section193 of the Code of Criminal Procedure. In support of his stand, the learned Senior Counsel for the petitioner has heavily relied on a Judgment of the Hon’ble Supreme Court, reported in 2007 (4) PLJR 144 ( SC) ; Y. Saraba Reddy Vs. Puthur Rami Reddy & Anr. The learned Senior Counsel has specifically referred to paragraph 12 of the said Judgment, which is as follows: “12. On a careful reading of Sec.319 of the Code as well as the aforesaid two decisions, it becomes clear that the trial court has undoubted jurisdiction to add any person not being the accused before it to face the trial along with other accused persons, if the Court is satisfied at any stage of the proceedings on the evidence adduced that the persons who have not been arrayed as accused should face the trial. It is further evident that such person even though had initially been named in the F.I.R. as an accused, but not chargehseeted , can also be added to face the trial. The trial court can take such a step to add such persons as accused only on the basis of evidence adduced before it and not on the basis of materials 4 available in the charge-sheet or the case diary, because such materials contained in the charge-sheet or the case diary do not constitute evidence. Of course, as evident from the decision reported in Sohan Lal and Others Vs. State of Rajasthan (AIR 1990 SC 2158) the position of an accused who has been discharged stands on a different footing.” It was argued by the learned Senior Counsel appearing on behalf of the petitioner that summoning of the petitioner was itself without jurisdiction and, as such, the learned 6th Addl.Sessions Judge without appreciating the question of law had rejected the discharge petition filed on behalf of the petitioner. It was submitted that since summoning of the petitioner was itself illegal, the whole subsequent proceeding against the petitioner has been vitiated and, accordingly, the impugned order is liable to be set aside. The learned Senior Counsel appearing on behalf of the petitioner has submitted that the learned trial court has completely failed to appreciate that the petitioner was an employee in the office of the Accountant General and on the date of occurrence, he was not at the place of occurrence. 5. Sri Damodar Prasad Tiwary, learned Addl. Public Prosecutor appearing on behalf of the State has vehemently opposed the prayer of the petitioner. It was argued by Sri Tiwary that before this Court the petitioner has made a prayer for quashing of the order, whereby the discharge petition of the petitioner was rejected. The order of summoning by the learned trial court was already approved by this Court in the Revision i.e. Cr.Revision No.86 of 1996 preferred by the petitioner against the order of summoning dated 11.1.1996 passed by the learned 6th Addl. Sessions Judge, which was already dismissed by this Court. Now the only requirement for entertaining the petition filed under Sections 227 and 228 of the Code of Criminal Procedure on behalf of 5 the petitioner is to see as to whether prima facie case for framing of the charge against the petitioner was available or not. It was submitted that from the impugned order as well as from the F.I.R. itself , it is evident that the petitioner was one of the participants in opening of indiscriminate firing at the time of occurrence, in which victim had received three fire-arm injuries . It was submitted that the material categorically indicates that there were sufficient grounds for framing charge against the petitioner. So far the question of alibi is concerned, it has already been answered by the learned Sessions Judge by its impugned order. 6. Besides hearing the learned counsel for the parties, I have also examined the materials available on record. At the stage of charge only requirement is to see as to whether prima facie case has been made out or not. After going through the impugned order, the Court is of the opinion that the learned trial court has examined the materials in detail and, thereafter, he has come to the conclusion that it was not a fit case for discharge. So far as the stand taken by Sri Sadaquat Hussain, learned Senior Counsel appearing on behalf of the petitioner on the point that the learned Sessions Judge was not authorized to summon the petitioner is concerned, this Court is of the opinion that the said ground is not available to the petitioner in view of rejection of Cr.Revision No.86 of 1996, which was preferred by the petitioner before this Court. In sum and substance, if this Court accedes to the prayer of the petitioner, this will amount to reviewing the order passed in Cr.Revision No.86 of 1996, which is not permissible in the eye of law. Accordingly, the submission advance by the learned Senior Counsel for the petitioner on this point is liable to be out rightly rejected. Similarly, the Judgment of Hon’ble Supreme Court in Y. Saraba Reddy (Supra) is not of any help to the petitioner 6 in view of rejection of Cr.Revision No.86 of 1996. 7. In view of the aforesaid facts and circumstances of the present case, this Court is of the opinion that the learned Addl.Sessions Judge, while rejecting the petition filed under Sections 227 and 228 of the Code of Criminal Procedure on behalf of the petitioner, has assigned a detailed reason, which requires no interference by this Court. Accordingly, this Court is of the opinion that the petitioner has not made out an exceptional case warranting exercise of inherent jurisdiction in his favour and, as such, the petition stands rejected. In view of rejection of this petition, interim order of stay dated 11.2.2002 stands automatically vacated. Patna High Court,Patna Dated : the 13th September,2010 Nawal Kishore Singh/ N.A.F.R. ( Rakesh Kumar, J.)