IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.1480 of 2007 BISHWANATH THAKUR S/O JAMUNA THAKUR R/O VILLAGE REPURA PS-SAKRA,DISTT-MUZAFFAFPUR- PETITIONER Versus 1.THE STATE OF BIHAR 2.RAJESHWAR THAKUR S/I JANGBAHADUR THAKUR VILL- REPURA PS- SAKARA, DISTT- MUZAFFARPUR—OPP. PARTIES ------------ For the petitioner: Mr. Ajay Kr. Thakur,Adv & Mr.Nilesh Kumar, Advocate For the State: Mr. Bhola Lal Das, APP ----------- 6 2 .7.2009 The application under Section 482 of the Code of Criminal Procedure has been filed for quashing the order dated 4.12.2006 passed by leaned Additional Sessions Judge Fast Track Court No. 3, Muzaffarpur in Sessions Trial No. 72 of 1989. By virtue of this order the application filed on behalf of the prosecution for summoning the petitioner to face trial under section 319 of the Code of Criminal Procedure under section 302 and other related sections of the Indian Penal Code has been allowed. This is the reason why the present application has been filed. The basic facts leading to institution of the case in question is that one Rajeshwar Thakur recorded his fardbeyan on 9.9.1987 at 2.30 P.M. stating therein that on the date of occurrence he along with his companions Ram Chandra Prasad and Raj Kumar, both deceased, went to his house when his wife made a complain with regard to her assault by accused Mahesh Thakur in presence of other accused persons. The informant told his wife and son to get ready to go for treatment of his son who was suffering from Jaundice. When they were waiting on the National High Way for boarding a bus all the named accused persons including this petitioner surrounded the - 2 - informant, his two accomplices and the family members. They killed Ram Chandra Prasad and Raj Kumar and even the informant and the family members were assaulted by them. Since there was a lot of hue and cry, many villagers arrived and saw the incident. The informant thereafter lodged the case which is Sakra P.S. Case No. 153 of 1987 under several sections of the Indian Penal Code including section 302 of the IPC. On investigation made by the police other persons came to be chargesheeted but the present petitioner was not sent up for trial. Learned Chief Judicial Magistrate took cognizance against other accused persons and committed the matter to the court of sessions for trial. The matter had lingered for many a years. Over a period of time many witnesses came to be examined, evidence came during the course of trial where the present petitioner was also named as one of the persons who participated in the said crime. There are categorical statements of the witnesses with regard to not only the presence of the petitioner at the time of crime but also his participation. It was in this background that the prosecution decided to file a petition for summoning the petitioner to face trial. Learned trial court after hearing the parties has recorded its opinion vide impugned order dated 4.12.2006 by virtue of which the petition of the prosecution had been allowed and summons have been issued to the petitioner to face the trial in the said case. Learned counsel representing the petitioner submits - 3 - that the power under section 319 of the Code of Criminal Procedure should not be exercised in casual or callous manner. If the police had already exonerated the petitioner after due investigation and evidence which had come there is no occasion now to force the petitioner to go through the rigors of trial at such a belated stage. He submits that the view of this Court including the Hon’ble Supreme Court is that due caution has to be exercised while exercising the power of this kind. It is further submitted that on a reading of section 319 of the Code of Criminal Procedure it is apparent that only such person could be tried along with other accused persons provided he is not an accused in the case. Since the petitioner was initially an accused and let off by the police he does not fall in that category. It is also submitted that only where there is adequate and sufficiency of evidence which could lead to conviction of the person summoned, then only the power ought to be exercised under section 319 of the Code of Criminal Procedure. Learned P.P however on the other hand submits that merely because the police exonerated the petitioner it does not mean that no further action can be taken against the petitioner in any circumstances whatsoever. After all the power under section 319 of the Code has been vested in courts with object that no accused should go scot- free from punishment if his complicity and participation in heinous crime has emerged during the course of trial by way of consistent and persistent evidence from the witnesses to the crime. It is further urged on behalf of the prosecution that once the final form has been submitted against the petitioner he fell in the category of “no - 4 - accused” and if during the course of trial and evidence there is sufficiency of material about his presence and participation in the crime then it cannot be said that the petitioner could not be summoned under section 319 of the Code of Criminal Procedure. As for the submission made with regard to the proposition that the evidence should be such which could lead to conviction, it is submitted that the final picture can never be prophesied till the trial gets completed and all the witnesses are finally examined. In the present case many witnesses have already stated about the participation and presence of the petitioner. It cannot be said that it is a case of no evidence. After having heard the submissions made at the bar on behalf of the parties, having perused the impugned order and the reasoning assigned therein and also having gone through the evidence of the witnesses which has also been made a basis for passing the impugned order, the Court does not find any legal infirmity of any kind, why the order should be interfered with. Petitioner has failed to make out a case for interference. This application has no merit and it is dismissed accordingly. RPS (Ajay Kumar Tripathi,J.)