CRIMINAL MISCELLANIOUS No.32631 OF 2004 ******* In the matter of an application under section 482 Of the Code of Criminal Procedure. ******* 1. UTTAM MODI, 2. RAM PRASAD MODI, 3. DINESH MODI, 4. RAKHA DEVI -----------------PETITIONERS Versus STATE OF BIHAR-------------------OPP.PARTY ******* For the Petitioners : Mr. Sanjeev Kumar Mishra For the Informant : M/s Baxi S.R.P. Sinha & Rahul Nath For the State : Mr. Damodar Pd. Tiwary, A.P.P. ******* P R E S E N T THE HON'BLE MR. JUSTICE AKHILESH CHANDRA Akhilesh Chandra, J. Heard learned counsel for the petitioners, learned Additional Public Prosecutor for the State and Sri Baxi S.R.P. Sinha, for the Informant. 2. this is an application under Section 482 of the Code of Criminal Procedure seeking quashing of order dated 24th September, 2004 passed in Sessions Trial no.374 of 2000 by Additional Sessions Judge, Fast 2 Track Court no.5, Munger, summoning the petitioners in exercise of powers conferred under Section 319 of the Code of Criminal Procedure. 3. Relevant facts of the case is that on the fardbayan of one Lakhi Devi, East Colony P.S. Case no. 41 of 1998 under Section 307/326 of the Indian Penal Code and 27 of the Arms Act was instituted on 31st July, 1998 wherein just on the following day offence under Section 302 of the Indian Penal Code is added on 01st August, 1998 and petitioner no.1 was alone named accused. 4. It was averred in the first information report that informant, aged 60 years, had three sons, Arjun Mandal, Amardeep Kumar Chaurasia and Niranjan Kumar Chaurasia, out of whom Arjun Mandal was separate with mess but she was with other two sons out of whom deceased Amardeep Kumar Chaursia, aged 26-27 years, an employee of one Jai Bangla Misthan Bhandar, Jamalpur left house to join his duty at about 5.30 to 5.45 A.M. Suddenly, she got information that he has been shot at. Immediately the informant along with 3 her two sons, Arjun and Niranjan with other Mohalla people arrived at the spot, found Amardeep senseless, brought him to railway hospital, Jamalpur, where he was under treatment. She further stated that Amardeep was married with petitioner no.4, Rekha Devi, in the year 1996. The couple was blessed with a female child previous day of festival Holi but just two or three days thereafter she left the house with the infant. On query, it could be learnt that she has gone to her parents and she was not inclined to live with her husband. Roughly a month before petitioner no.1, Uttam Modi, who happens to be maternal uncle of petitioner no.4, Rekha Devi, arrived and threatened her to bring Rekha Devi at their house otherwise be ready to face dire consequences. On such happenings the informant raised confident doubt against petitioner no.1. 5. After investigation, East Colony, Jamalpur Police submitted charge sheet against three persons who were not named earlier, Bichiya Sao @ Suresh Sao, Pappu Mandal @ Suresh Kr. Kandal and Kapurva @ Kapur Kumar for the offences under Section 4 302/120 of the Indian Penal Code and 27 of the Arms Act to get the investigation pending against the brother of the deceased Arjun Mandal but exonerated named accused Uttam Modi. Subsequently, supplementary charge sheet was submitted against Arjun Mandal also. Accordingly, after taking cognizance trial proceeded wherein altogether six witnesses were examined. Then prayer under Section 319 of the Code of Criminal Procedure was made on behalf of the informant. After hearing, impugned order was passed by the court below. 6. It would not be out of place to mention that earlier before hearing on the point of charge prayer on behalf of the prosecution was made to take cognizance against the persons under Section 193 of the Code of Criminal Procedure which, by a detailed order, dated 07th March, 2002, was refused as prematured with clear averment that such prayer can be made and entertained only at the stage of 319 of the Code of Criminal Procedure but not before. 7. While assailing the impugned order, learned counsel for the petitioners submitted that during 5 investigation there was no material against the petitioners rather one of the accused facing trial, on apprehension, made his confessional statement implicating others including brother of the deceased Arjun Mandal at whose instance offence was committed only because deceased had developed illicit relationship with his wife. Further, the witnesses examined during trial came forward with a changed version basing their statement implicating the petitioners on the alleged oral dying declaration of the deceased whereas in the very first information report it is stated that at the time informant and others arrived at the scene the deceased was senseless and, in fact, continued so till his death. So the witnesses have just in order to save skin of accused facing trial, own brother of the deceased, have turned hostile so far his implication is concerned but made otherwise statements which cannot be relied upon to summon the petitioners. 8. Learned counsel for the petitioners further placed reliance upon following four decisions in the cases of Shanker Patel V. State of Bihar; 2006 (4) 6 PLJR 314, Tarkeshwar Singh V. State of Bihar; 2003 (4) PLJR 81, Mrigendra Pd. Singh V. State of Bdihar; 2006(1) PLJR 502, and Patliputra Builders Pvt. Ltd. V. State of Bihar & Anr., 2005 (1) PLJR 89. On the other hand, learned counsel for the informant submitted that since very beginning Police was hostile with the prosecution recorded the statement other than fact and stated by the witnesses including the informant compelling the witnesses to get their statements recorded under Section 164 of the Code of Criminal Procedure wherein also they have stated about oral dying declaration of the deceased stating name of the petitioner no.1 as sole assailant and others as his associates arrived at the scene and petitioner no.1, the solitary named accused in the case had already threatened earlier, the informant about the dire consequences if his desires are not fulfilled. Learned Additional Public Prosecutor supported the contentions made above. This is a bit peculiar case wherein one triangle has been formulated at one end informant, other end petitioners and at the third end Additional Public 7 Prosecutor who conducted the trial before the court below though here before this Court Additional Public Prosecutor has joined hands with the informant. 9. At the initial stage, i.e., at the time of recording first information report or till some time thereafter during investigation there was nothing to show that deceased was in a position to make any statement or narrate the story about the happenings with him. No doubt, against petitioner no.1, Uttam Modi, the informant, has raised strong suspicion on the basis of alleged threat given by him some time before and on that basis petitioner no.1 alone was named accused. 10. During investigation, as appears from perusal of the lower court record specially case diary having some materials, indicating some otherwise relationship of the deceased with a female member of the family (P.W.I) and subsequently one of the accused facing trial Bichiya on apprehensions made some confessional statement on the basis whereof the Investigating Agency, after further investigation, arrived at the conclusion that on the basis of such relationship 8 eldest brother of the deceased in a planned manner with help of other three accused persons facing trial, got his brother shot dead. Accordingly, charge sheets were submitted and trial commenced. 11. It further appears that only after emerging suspicious circumstances against Arjun Mandal, members of his family, i.e., prosecution side, has started bringing some changes in their earlier stand and in the statements under Section 164 of the Code of Criminal Procedure, the accused persons whose statements had been recorded under Section 161 of the Code of Criminal Procedure earlier now started saying that it was deceased who on their arrival narrated the happenings with him and he clearly disclosed names of all the four petitioners here. 12. The court below, on consideration of statements of the witnesses during trial specially during cross-examination by the prosecution on behalf of main accused Arjun Mandal, decided to summon the petitioners but without any consideration whether deceased was in a position to make his statements at any 9 point of time specially when senses beginning, the prosecution case is that when the witnesses, including the informant, on getting information about shooting at the deceased, arrived at the scene, found him injured and senseless, in same state of affairs bought him to hospital for treatment where he died. There is no evidence at all at any point of time deceased regained his senses rather the witnesses basing their statement on such oral dying declaration also confined such situation only on their arrival at the place of occurrence not thereafter, so possibility of any evidence showing that deceased, after sustaining such fatal injury caused by fire arm at his head, was in a position to make any such statement. In absence of anything in support of capability of the deceased making such dying declaration by no stretch of imagination it can be said that he made such dying declaration. Thus, there appears no possibility, even remote, to establish complicity of the persons summoned in exercise of powers under Section 319 of the Code of Criminal Procedure. 13. The witnesses examined during trial 10 including the informant has also been declared hostile by the prosecution. Whatever statements have been considered for summoning the petitioners are made only during cross-examination on behalf of Arjun Mandal who is non-else than son of the informant, husband of P.W.1 and brother of another witness Niranjan Mandal and only statements of these witnesses, i.e., mother, wife and brother of accused facing trial, the petitioners have been summoned. The changed statements only after materials showing complicity of a family member in murder of another creates strong doubt and suspicion against genuine-ness of their subsequent, prima-facie, after thought statements. 14. It is well settled that power under Section 319 of the Code of Criminal Procedure has to be sparingly used. This is what has also been stated by this court in the case of Tarkeshwar Singh (Supra) and also in the case of Mrigendra Prasad Singh (Supra). 15. In the case of Shanker Patel (Supra) and Patliputra Builders Pvt. Ltd. (Supra) though application of Section 319 of the Code of 11 Criminal Procedure has not been considered but their in references appears under what circumstances jurisdiction under Section 482 of the Code of Criminal Procedure can be exercised and case in hand appears fit wherein in exercise of inherent powers impugned order may be interfered with. If it remains operative it shall be nothing but abuse of process of law and forcing the petitioners to face trial without any cogent material and evidence. 16. Accordingly, impugned order is quashed and petition stands allowed. 17. Let the lower court records be returned at once to the court below along with a copy of this order for further proceeding which must be expeditiously concluded. (Akhilesh Chandra, J.) Patna High court, The 14th September, 2010. AAhmad/(NAFR). 12