Research › Search › Judgment

Patna High Court · body

2010 DIGILAW 2188 (PAT)

Mahesh Prasad Singh v. State Of Bihar

2010-09-20

RAKESH KUMAR

body2010
JUDGEMENT RAKESH KUMAR, J. 1. The sole petitioner, while invoking inherent jurisdiction of this court under section 482 of the Code of Criminal Procedure, has prayed for quashing of an order dated 28.2.2002 passed by learned Presiding Officer, Fast Track Court No.1, Samastipur in Sessions Trial No.161 of 1986/13 of 2002. By the said order while exercising power under section 319 of the Code of Criminal Procedure, the learned Trial Judge has summoned the petitioner to face trial along with other accused persons. 2. Short fact of the case is that the petitioner was named accused in the first information report along with other accused persons for an occurrence in which three persons were murdered. First information report was registered on 24.3.1983 vide Samastipur P.S. Case No.41 of 1983. However, after investigation the police exonerated the petitioner but submitted charge-sheet against other accused persons. After submission of the charge sheet the learned Magistrate took cognizance of the offence and the case was committed to the court of Sessions on 15.6.1986. In the case charges were framed on 13.3.1991 against accused persons. Thereafter, the trial commenced and a number of witnesses were examined and finally the prosecution evidence was closed on 14.12.1995. Thereafter, statement of accused persons under section 313 of the Code of Criminal Procedure was recorded and judgment was reserved by the Trial Judge. However, before delivery of judgment the Trial Judge noticed that number of witnesses had disclosed the complicity of this petitioner also in the crime and, as such, by the impugned order i.e. dated 28.2.2002 the learned Trial Judge summoned this petitioner to face trial along with other accused persons. 3. Aggrieved with the order dated 28.2.2002 passed by learned Presiding Officer, Fast Track Court No.1, Samastipur the petitioner approached this court by filing the present petition which was admitted on 21.5.2003. While admitting the case, it was directed that during the pendency of this application, operation of the order impugned, so far the petitioner is concerned, shall remain stayed. The order of stay is still continuing. 4. Mr. Shiva Nandan Roy, learned senior counsel appearing on behalf of the petitioner, while challenging the order of summoning the petitioner, at the very outset has argued that in the present case occurrence had taken place long back in the year 1983. The order of stay is still continuing. 4. Mr. Shiva Nandan Roy, learned senior counsel appearing on behalf of the petitioner, while challenging the order of summoning the petitioner, at the very outset has argued that in the present case occurrence had taken place long back in the year 1983. It was further argued that even though some of the witnesses had disclosed the presence of the petitioner in the occurrence but no specific overt act was mentioned against the petitioner. It was further argued that if the impugned order is not quashed a de novo trial will have to be commenced and again same witnesses will have to be examined. Learned counsel for the petitioner has not disputed the jurisdiction of the learned trial judge but on the question of inordinate delay, has argued that it would not be proper to direct the petitioner to face trial after lapse of 27 years from the date of occurrence. In support of his argument learned counsel for the petitioner has referred to a judgment of Honble Supreme Court reported in 1992 Cr.L.J. 3438 (State of Assam Vs. Abdul Halim). Learned counsel for the petitioner submitted that in the said case also allegation was in relation to commission of offence under section 302/ 34 of the Indian Penal Code, however, on the ground that the matter had remained pending for about 18 years the Supreme Court did not direct the accused to face trial. Learned senior counsel has also referred to a judgment of Honble Supreme Court reported in 2005(1) P.L.J.R.(SC)-50 (Krishnappa Vs. State of Karnataka). It has been submitted that in that case also on the ground of delay the Supreme Court had allowed the appeal which was preferred against the order of High Court. In the said case the High Court had allowed a petition filed against an order of trial court refusing to summon the accused person to face trial under section 319 of the Code of Criminal Procedure. On the ground of delay as well as insufficient evidence, it has been argued that the impugned order may be set aside. 5. I have also heard Mrs. lndu Bala Pandey, learned Addl. Public Prosecutor appearing on behalf of the State. 6. Besides hearing learned counsel for the petitioner and the State, I have also perused the materials available on the record particularly the impugned order. 5. I have also heard Mrs. lndu Bala Pandey, learned Addl. Public Prosecutor appearing on behalf of the State. 6. Besides hearing learned counsel for the petitioner and the State, I have also perused the materials available on the record particularly the impugned order. On going through the impugned order, the court is satisfied that technically there is no error in the order impugned but in view of the fact and circumstances of the case particularly the occurrence which had occurred about 27 years back coupled with the evidence of no overt act, the court is satisfied that it would not be proper to direct the petitioner to face de novo trial with other accused persons. In this case occurrence had taken place in the year 1983. Time without number it has been held by Honble Supreme Court that power under section 319 of the Code of Criminal Procedure is to be exercised sparingly and not as a matter of course. Accordingly, the court feels that it is a fit case for exercising inherent jurisdiction in favour of the petitioner. 7. in the result, the petition is allowed. The impugned order dated 28.2.2002 passed by the learned Presiding Officer, Fast Track Court No.1, Samastipur in Sessions Trial No.161 of 1986/13 of 2002 is hereby set aside.