IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.38023 of 2006 KAILASH PATI MAHTO, SON OF LATE BITO MAHTO, RESIDENT OF VILLAGE-TAAL BANSHIPUR, P.O. DIGHRI, P.S. SURYAGARHA, DISTRICT-LAKHISARAI……………………………….PETITIONER. Versus 1. THE STATE OF BIHAR. 2. MR. SUDHIR MAHTO, SON OF LATE LAXMI MAHTO AT MAUZA BAKARGANJ, P.S. SURYAGARHA, DISTRICT- LAKHISARAI. ……………………………………………….OPPOSITE PARTIES. ----------- For the Petitioner : M/s. Ashwini Kumar Singh and Ajay Kumar, Advocates. For the State : Mr. Jharkhandi Upadhyay, A.P.P. ----------- O R D E R The petitioner, one of the F.I.R. named accused of Sessions Case No.322 of 2003 arising out of Surajgarha (Manikpur) P.S. Case No.176 of 2002, has prayed for the quashing of the order dated 31.5.2006 passed in the Sessions Case by the learned Additional Sessions Judge, Lakhisarai, whereby the petition of the prosecution filed under Section 319 Cr.P.C. has been allowed and the petitioner alongwith others have been summoned to face the trial. The aforesaid case was registered under Sections 302 and 120-B I.P.C. as also Section 27 of the Arms Act against the six persons, named in the F.I.R., including the petitioner on the basis of a fardbeyan given by one Sudhir Mahto at 08.00 hours on 10.6.2002. According to the informant, Sudhir Mahto, who has been impleaded herein as O.P. No.2, on the preceding night while he was sleeping in - 2 - the hut to the east of his house and his father was sleeping on the machan to the south of the house, his father was shot dead in his presence allegedly by the first five F.I.R. named accused and it was apprehended that the alleged murder had been done at the instance of Mukhiya, Kailashpati Mahto, the petitioner herein. The police having investigated the matter submitted a chargesheet against Diwakar Mahto only under Sections 302/34 I.P.C. and Section 27 of the Arms Act even as the investigation was kept pending against the others and cognizance was taken by the learned Additional Chief Judicial Magistrate, Lakhisarai, who agreed with the findings of the Investigating Officer and later on committed the case to the Court of Sessions. Eventually, a final form was submitted against the other 5 F.I.R. named accused which was accepted by the learned Magistrate vide order dated 22.3.2003. It appears that after some witnesses had been examined, the prosecution filed a petition under Section 319 Cr.P.C. with a prayer to summon the petitioner and place him on trial alongwith the other accused which was allowed by the impugned order. Assailing the impugned order, it has been submitted on behalf of the petitioner that he has falsely been dragged into the criminal case due to local politics and it would be clear from the records that the name of the petitioner, the local Mukhiya at the relevant time, was added as a conspirator in the last paragraph of the fardbeyan, only with the intention of harassing and defaming him. In this connection, it was sought to be submitted that the informant who - 3 - was only the eye witness to the occurrence had not named him as one of the culprits and had merely brooked suspicion that the entire overt act of the murder of his father had been done at the behest of the present petitioner. It was submitted that the name of the petitioner may have been added subsequently at the behest of the police or some other person. It was also submitted that in course of the investigation none of the witnesses examined under Section 161 Cr.P.C. had named the petitioner as one of the accused or even about his involvement in the murder. My attention was drawn, in this connection, to the deposition of P.W.2, Goura Devi, the daughter-in-law of the deceased, who had allegedly stated that in the morning of the incident the petitioner had come to the spot and he was again present when the police had come after the murder had taken place. Relying on the decision of Kavuluri Vivekanand Reddy Vs. State of A.P., reported in (2006)2 SCC (Cri.) 324, it was submitted that the court’s power to summon a person as an additional accused is an extraordinary and discretionary power and where only general statements are made by witnesses without indicating the part played by him in instigating the main accused, such person should not be summoned under Section 319 Cr.P.C. From perusal of the impugned order, it would appear that the learned court found sufficient materials in the case diary for putting the petitioner on trial and in this respect the evidence of P.W.1, Yashoda Devi, has been relied upon. She appears to have named all the accused persons of this case all of whom she claims to - 4 - have identified from the window while they were running away from the P.O. just after the commission of the crime and she would be deemed to be an eye witness to the occurrence. P.W.2, Goura Devi, has also claimed to have seen the dead body in the morning and had heard about the involvement of these accused persons just after the occurrence. P.W.3, the informant, Sudhir Mahto, who happens to be an eye witness to the occurrence, has expressed his suspicion of the entire crime having taken place at the behest of the petitioner. Rina Devi, P.W.4, has also named all the accused persons and she has claimed that she had seen and identified these accused from her house. From the aforesaid evidence, the learned trial court formed the opinion that there were sufficient materials by way of evidence to indicate his nexus in the crime so as to summon the petitioner as an additional accused. In the case of Rukhsana Khatoon Vs. Sakhawat Hussain, reported in 2004 SCC (Cri) 1153, wherein the facts and the circumstances of the case were similar to the instant one, it was held that the court was very much justified in summoning the petitioner to face the trial as an additional accused in view of the fact that Section 319 Cr.P.C. gives ample power to any court to take cognizance against any person not being an accused before it and try him alongwith other accused, if there appears during the trial sufficient evidence indicating his involvement in the offence. In Rukhsana Khatoon’s case (supra), the informant had named several persons as assailants of the deceased but the Investigating Officer excluded the names of some of the - 5 - named accused but subsequently in course of the trial evidence of the prosecution witnesses corroborated the alleged role of the excluded person in the incident, it was held that in such circumstances trial court’s order summoning the excluded person to stand trial did not suffer from any illegality or irregularity. In view of the discussions made above and there being sufficient materials on the record even though circumstantial in nature indicating the participation of the petitioner in the dastardly crime, I do not find any reason to interfere with the impugned order. Accordingly, there being no merit in this application, the same is dismissed. (Abhijit Sinha,J) Patna High Court, Patna. Dated: The 17th day of July, 2009. Pradeep Srivastava/A.F.R.