Criminal Miscellaneous No.17979 OF 1998 ---- In the matter of an application under Section 482 of the Code of Criminal Procedure, 1973. ---- RAJESH KUMAR SINGH SON OF SRI RAM NAGINA SINGH, RESIDENT OF VILLAGE + P.O. BHARAULI, P.S. MASHRAKH, DISTRICT SARAN (CHAPRA). ... ... PETITIONER. Versus STATE OF BIHAR ... ... OPPOSITE PARTY. ---- For the Petitioner : M/S Rana Pratap Singh,Sr.Adv. Sumant Singh,Adv. Sandip Kumar Gautam,Adv. For the State : Mr. A.M.P. Mehta, A.P.P. ---- P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR ---- Rakesh Kuamr,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 order dated 19.9.1997 passed by the Sessions Judge, Saran (Chapra) in Sessions Trial No.822 of 1994. By the said order, learned Sessions Judge has allowed the petition filed on behalf of the prosecution under Section 319 of the Cr.P.C. for summoning this petitioner as well as one another to face trial after examining five witnesses during the trial. 2. Shri Rana Pratap Singh, learned Senior Counsel appearing on behalf of the petitioner has vehemently argued that the power - 2 - under Section 319 of the Cr.P.C. has not been exercised by the learned Sessions Judge in accordance with law. He submits that in the present case, F.I.R. was lodged on the basis of fardbeyan of P.W.2, Rana Pratap Singh on 5.6.1993. In the F.I.R., the informant had not named this petitioner as one of the assailants. An F.I.R. was lodged against only one accused i.e. Sanjay Kumar Chaurasiya. He further, by referring to Annexure-2 to the petition, has submitted that after lodging the F.I.R. on 16.7.1993, the informant had filed a protest petition and in that protest petition, he had disclosed the name of two accused persons, namely, Sanjay Kumar Singh and Sanjay Kumar Bhagat Panheri and even in the protest petition, he did not disclose the name of this petitioner. He submits that after investigation, police submitted charge sheet only against Sanjay Panheri @ Sanjay Kumar Chaurasiya and his case was committed to the court of Sessions and on 24.6.1994, charges were framed against the sole accused, namely, Sanjay Panheri @ Sanjay Kumar Chaurasiya. He submits that at a belated stage, the informant, in a design manner, has disclosed - 3 - the name of this petitioner as one of the accused in the present case. Learned Senior Counsel has further submitted that in the trial, altogether five witnesses were examined. However, none of the witnesses, who were cited in the protest petition, were examined and even the witness Subodh, who was cited as one of the witnesses in the F.I.R., was not examined and in absence of examination of such witnesses, it was not desirable for the trial court to exercise its power under Section 319 of the Cr.P.C. 3. Shri Rana Pratap Singh has referred to two decisions of Hon’ble Supreme Court reported in 2009 (3) SCC 329 (Brindaban Das and others Vs. State of West Bengal) and also 2009(2)SCC 696 (Lala Suraj @ Suraj Singh and another Vs. State of Jharkhand). On the basis of aforesaid two judgments of Hon’ble Supreme Court, Shri Singh has submitted that law is settled on the point that power under Section 319 of the Cr.P.C. is to be exercised sparingly and only if evidence is sufficient to indicate the involvement of the accused persons. On those grounds, he has submitted that order dated 19.9.1997 be set aside. - 4 - 4. Shri A.M.P. Mehta, learned counsel appearing on behalf of the State has vehemently opposed the prayer of the petitioner. Learned Additional Public Prosecutor has produced a photo copy of order dated 19th March, 2010 passed in Cr. Misc. No.1098 of 1998 whereby the prayer of other co-accused, who was also summoned in the present case, was rejected by this Court. He submits that to maintain parity, it would be necessary to reject the present petition. 5. Besides hearing learned counsel for the petitioner and State, I have also examined the materials available on record of the case. Annexure-1 to the petition, which is photo copy of the F.I.R., indicates that the informant had categorically stated that in the occurrence, his brother was assaulted and accused Sanjay Panheri had pierced a knife on the person of his brother. In the F.I.R., the informant had disclosed that besides Sanjay Panheri, there were other 2-3 accused persons and the informant, at the time of lodging of F.I.R., was not knowing the name of the accused persons. 6. I have also perused Annexure-2 to the petition, which is a photo copy of protest - 5 - petition, filed by the informant. Perusal of the protest petition makes it clear that the informant was apprehensive that police may not do justice with the case. However, after investigating the case, the police submitted charge sheet against only one accused person. In the trial, prosecution examined five witnesses. Out of five, P.Ws.3, 4 and 5 turned hostile. However, P.W.1 disclosed in his deposition that the petitioner was also one of the accused in the case. He was also quarrelling with the deceased at the time of occurrence. P.W.1, as informed by learned Senior Counsel, Shri Rana Pratap Singh was examined on 29.7.1994. From the order, it appears that P.W.2 was examined in the month of June, 1995. P.W.2 is the informant of the case. From the order it appears that he has stated that this petitioner was holding hand of the deceased at the time of occurrence, when the accused Sanjay Kumar Chaurasiya pierced knife on the back of the deceased. In the present case, the petitioner has not brought on record the deposition of two witnesses and as such in absence of deposition, this Court has got no option but to rely on the material available in - 6 - the impugned order. The impugned order categorically indicates that this petitioner had actively participated in the crime. So far as the decision of Hon’ble Supreme Court on which learned Senior Counsel has relied, I am of the view that there is not dispute on the proposition of law. However, each and every case is to be looked into on the basis of facts of the said case. On the basis of materials available on record, I am fully convinced that there were sufficient material for proceeding against this petitioner and learned Sessions Judge, while allowing the petition under Section 319 of the Cr.P.C. and while directing for issuing warrant of arrest against this petitioner, had committed no mistake. Moreover, since the case of other co- accused persons, having similar allegation, has already been rejected by this Court by order dated 19th March, 2010 passed in Cr. Misc. No.1098 of 1998, I am of the opinion that no separate view can be expressed in the present case and accordingly, the present petition stands rejected. 7. In the present case, by order dated 8.9.1998, this Court had directed that until - 7 - further orders, further proceedings in Sessions Trial No.822 of 1994, so far as the petitioner is concerned, shall remain stayed. Subsequently, by order dated 16.9.1998, the present petition was admitted for hearing and it was directed that let this application be heard along with Cr. Misc. No.1098 of 1998. While admitting the case, this Court had directed that during the pendency of this application, operation of the impugned order, so far as petitioner is concerned, shall remain stayed. Cr. Misc. No.1098 of 1998 was heard separately and by order dated 19th March, 2010, same was rejected. In view of rejection of the present petition, the interim order of stay stands automatically vacated. 8. Let a copy of this order be communicated to the court below forthwith. ( Rakesh Kumar,J.) PATNA HIGH COURT Dated 20.4.2010 N.A.F.R./N.H.