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2007 DIGILAW 461 (PAT)

Haldhar Prasad Mehta v. State Of Bihar

2007-03-01

MADHAVENDRA SARAN

body2007
Judgment Madhavendra Saran, J. 1. This application under Section 482 of the Code of Criminal Procedure (in short as the Code) has been filed for quashing the order dated 20.9.1997 passed by learned 7th Additional Sessions Judge, Nalanda at Biharsharif in S.Tr. No. 427/95 whereby and whereunder the petitioner has been summoned under Section 319 of the Code to face trial. 2. The prosecution case, in short, is that informants father Sri Upendra Kumar Pandey was Cashier in the office of Urban Electric Supply Division No. 2, Biharsharif. In the morning of 3.7.1995 at about 9.00 AM he left home for going to office. At about 2.00 AM on the same day some employees of the department came to the residence of the informant in search of informants father Upendra Kumar Pandey on the plea that Shri Pandey has not come to office and for that reason the salary is not being paid to the employees. Informants brother Shailendra Kumar Pandey told him that on 3.7.1995 at about 11 AM he had seen his father going on Rajdoot Motorcycle with Rajendra Prasad, an employee of the office. The informant tried to meet Rajendra Prasad but could not meet him. On 5.7.1995 at about 8 AM the dead body of informants father was found in a well situated near Khandak Mor from which the same was taken out. On the basis of fardbeyan of the informant, the Police registered Biharsharif P.S. Case No. 201/95 on 5.7.1995 and took up investigation and after concluding the same submitted charge sheet against Rajendra Prasad and Sheo Gope. After cognizance the case of these two accused was committed to the court of Session where charge was framed and after examination of 11 witnesses a petition was filed on behalf of informant to summon petitioner Haldhar Prasad Mehta, the then Execu- tive Engineer, Electricity Supply and Laxmi Prasad, the then S.D.O. Electricity Supply as accused to face the trial alongwith the accused persons. Learned Additional Sessions Judge by the impugned order dated 20.9.1997 allowed the prayer against which petitioner Haldhar Prasad Mehta has filed the present application for quashing. 3. Learned Additional Sessions Judge by the impugned order dated 20.9.1997 allowed the prayer against which petitioner Haldhar Prasad Mehta has filed the present application for quashing. 3. It appears from Annexure-1 to the application that on 3.7.1995 petitioner Haldhar Prasad Mehta learnt from the employees of his department that the Cashier Sri Upendra Kumar Pandey, the deceased, has not come to office and for that reason the salary was not being paid to the employees of the department. A search was made for Pandey but he could not be traced out. Accordingly, the petitioner vide letter no. 1339 dated 3.7.1995 informed the Police about missing of Upendra Kumar Pandey. It further appears from Annexure-2 to the application that the petitioner on 4.7.1995 lodged Biharsharif P.S. Case no. 201/95 against Upendra Kumar Pandey for offence punishable under Section 409 of the Indian Penal Code. 4. It has been contended that the petitioner Haldhar Prasad Mehta is not named in the F.I.R. He has not been charge sheeted by the Police. During entire investigation not a single witness raised suspicion against him. Learned counsel furtner contended that out of 11 witnesses examined so far in the case, P.W. nos. 1, 2, 3 and 4 are witnesses on the point of recovery of dead body from the well which is situated in front of the house of accused Rajendra Prasad. P.W. 5 Shailendra Kumar Pandey who is brother of the informant has also not said anything against the petitioner. Similar is the position with P.W. 6. Learned counsel then referred to evidence of P.Ws. 7, 8 and 9 and submitted that they have also not spoken anything against the petitioner. Learned counsel pointed out that P.W. 7 Laxmi Prasad before the Police had given information that the new lock was opened by Sheo Gope and therefore, the evidence of this witness given in court cannot be accepted that the petitioner provided the key of the new lock to Sheo Gope. Learned counsel pointed out that from the impugned order it appears that the learned Additional Sessions Judge on the basis of very small suspicion has summoned the petitioner to face trial. He submitted that unless the court is hopeful that there is reasonable prospect of the case as against the petitioner ending in conviction for the offence alleged the Court would not summon such person under Section 319 of the Code. He submitted that unless the court is hopeful that there is reasonable prospect of the case as against the petitioner ending in conviction for the offence alleged the Court would not summon such person under Section 319 of the Code. He also submitted that the power under Section 319 of the Code to summon the accused is an extraordinary power conferred on the court and should be used very sparingly and only on the existence of compelling reasons. In support of his contention, learned counsel placed reliance on a decision of the Apex Court, reported in 2005(1) PLJR 50 given in the case of Krishnappa V/s. State of Karnataka. 5. Learned A.P.P. on the other hand supported the impugned order. 6. Thus the position is that the petitioner is not named in the F.I.R. The police after investigation did not submit charge-sheet against him. It appears from the case diary that during investigation accused Rajendra Prasad and Sheo Gope gave confessional statement before the Police and narrated as to how murder of Upendra Kumar Pandey was committed. During investigation witness Laxmi Prasad vide paragraph-13 of the case diary stated before the Police that on 4.7.1995 at about 3.30 PM in presence of petitioner, Darban Sheo Gope opened both the locks. This witness did not tell the Police that the key of the lock was given by the petitioner. Then on 3.7.1995 this petitioner vide Annexure-1 as mentioned above had informed the Police about the missing of Cashier Upendra Kumar Pandey. He had also informed that the key of iron chest was with the Cashier. Then on 4.7.1995 this petitioner lodged Biharsharif P.S.Case No. 201/95 under Section 409 of the Indian Penal Code against Upendra Kumar Pandey. On 5.7.1995 the dead body of Upendra Kumar Pandey was taken out from a well situated in front of the house of Rajendra Prasad. Accused Rajendra Prasad and Sheo Gope as mentioned above confessed before the Police and they did not make any allegation against the petitioner. It appears from the impugned order that the learned Additional Sessions Judge on the basis of little suspicion has summoned the petitioner to face the trial. 7. Accused Rajendra Prasad and Sheo Gope as mentioned above confessed before the Police and they did not make any allegation against the petitioner. It appears from the impugned order that the learned Additional Sessions Judge on the basis of little suspicion has summoned the petitioner to face the trial. 7. As pointed out by learned counsel that law on this point is well settled unless the court is hopeful that there is reasonable prospect of the case ending in conviction for the offence concerned power under Section 319 of the Code would not be exercised. 8. In the impugned order I do not find any compelling reasons for adding the petitioner as an accusad in the case. 9. In the aforesaid facts and circumstances, this application is allowed and the impugned order as against the petitioner is hereby quashed.