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2010 DIGILAW 843 (PAT)

Devendra Singh v. State Of Bihar

2010-04-20

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 the order dated 20.5.1999 passed by the learned Judicial Magistrate, 1st Class, Nawadah. By the said order, the learned Magistrate has allowed the petition filed on behalf of the informant for summoning this petitioner to face the trial in Kawakol P.S. Case No. 23 of 1995. 2. The short facts of the case is that on 7.3.1995 at about 8.00 a.m. while the informant was at his field, accused Baleshwar Singh, Krishna Ballabh Singh, Vijay Singh, Nawal Kumar @ Guddu and Raj Ballabh, who were Gotias of the informant, by way of forming an unlawful assembly, came there and asked the informant that it was his field and thereafter accused Baleshwar Singh gave a bhala blow, which hit on his foot. Thereafter other accused persons also started assaulting the informant with fists. Any how the informant with a view to save his life ran to his house and all the aforesaid accused persons chased him up to his residence and thereafter the informant was again assaulted and he also received a knife blow on his lip. it was alleged by the informant that the aforesaid accused persons had assaulted his daughter-in-law also. Thereafter some of the villagers arrived there but in the meanwhile all the accused persons had already fled away. 3. On the basis of specific assertion of the informant, an F.I.R. vide Kawakole P.S.Case No. 23 of 1995 was instituted and after investigation police submitted charge- sheet against all the named accused persons of the F.I.R. During the trial after examination of P.Ws. 1 and 2 some materials were brought on record indicating involvement of this petitioner. After examination of P.Ws. 1 and 2, the informant filed a petition on 16.6.1997 for summoning this petitioner under Section 319 of the Code of Criminal Procedure. However, the learned Magistrate was of the view that unless the informant is examined no order was required to be passed under Section 319 of the Code of Criminal Procedure and, accordingly, the petition dated 16.6.1997 filed by the informant was rejected. Subsequently, the informant was examined as P.W. 4. In his evidence, the informant disclosed that during the occurrence, the petitioner was instigating the other accused persons to assault the informant. Subsequently, the informant was examined as P.W. 4. In his evidence, the informant disclosed that during the occurrence, the petitioner was instigating the other accused persons to assault the informant. After his evidence was recorded, again a petition was filed on behalf of the informant to summon this petitioner under Section 319 of the Code of Criminal Procedure for facing the trial. 4. Sri Nawal Kishore Singh, learned counsel appearing on behalf of the petitioner submits that the order impugned was passed on the petition filed by the informant, not on the petition filed by the prosecution. He further submits that the informant in his fardbeyan,. which was recorded after lapse of several hours of the occurrence, did not name the petitioner as associate of the accused persons or even whispered regarding presence of this petitioner during the occurrence. He submits that only with a view to falsely implicate the petitioner, petition was filed by the informant for adding him as accused in the case. He also submits that the case was thoroughly investigated by the police but during the investigation, none of the witnesses has come forward disclosing therein regarding involvement of this petitioner. He submits that in the case, alleged occurrence had taken place at 8.00 a.m. (morning) on 7.3.1995 and fardbeyan of the informant was recorded at 5.30 p.m. on the same day. He submits that there were sufficient time available to the informant to recollect the exact occurrence before giving fardbeyan before the police and since the petitioner was not at all involved in the case, the informant did not whisper against him in the fardbeyan, rather in the fardbeyan the informant gave categorical picture of the occurrence as well as participation of the accused persons. In the fardbeyan nothing was stated in respect of this petitioner. He further submits that once the learned Magistrate had already rejected the petition of the informant, the subsequent order almost on similar matter amounts to review of the earlier order, which is not permissible in law as prescribed under Section 362 of the Code of Criminal Procedure. On these grounds, he has prayed for quashing of the order dated 20.5.1999 passed by the learned Judicial Magistrate, 1st Class, Nawadah in G.R. No. 230 of 1995/ Tr. No. 136 of 1999 arising out of Kawakole P.S. Case No. 23 of 1995. 5. On these grounds, he has prayed for quashing of the order dated 20.5.1999 passed by the learned Judicial Magistrate, 1st Class, Nawadah in G.R. No. 230 of 1995/ Tr. No. 136 of 1999 arising out of Kawakole P.S. Case No. 23 of 1995. 5. Sri Bal Mukund Pd.Singh, learned counsel appearing on behalf of the State has opposed the prayer of the petitioner. He submits that under Section 319 of the Code of Criminal Procedure, the learned Magistrate was having ample power and jurisdiction to summon the petitioner since during the trial witnesses had categorically disclosed the involvement of the petitioner as instigator to the occurrence. He further submits that while exercising power under Section 482 of the Code of Criminal Procedure, this Court may refrain to interfere with the impugned order. 6. Besides hearing the learned counsel for the petitioner and the State, I have also examined the materials available on the record. In this case, the occurrence had taken place in the morning at 8.00 a.m. on 7.3.1995 and thereafter in the evening for the alleged occurrence the informant gave his fardbeyan before the police and in his fardbeyan he categorically disclosed regarding the involvement of named accused persons. He has not said anything regarding the involvement of this petitioner. The case was investigated by the police and police also submitted charge-sheet against only those accused, who were named in the F.I.R. Of course, during the trial P.Ws. 1 and 2 had disclosed the involvement of the petitioner, but once on the petition filed by the informant the learned Magistrate had rejected the same, it was not proper to await the evidence of the informant. Sub- sequently, the informant during the evidence has taken a U-turn and to corroborate the evidence of P.Ws. 1 and 2, he also alleged against this petitioner to be instigator. Had the petitioner been instigator in the case, it was expected that the informant would have categorically stated regarding such facts in his fardbeyan or during his restatement . before the police. But subsequently, to the reasons best known to the informant, he had deposed that this petitioner at the time of occurrence was instigating the other accused to commit the crime. before the police. But subsequently, to the reasons best known to the informant, he had deposed that this petitioner at the time of occurrence was instigating the other accused to commit the crime. It is not in dispute that the trial Court has got ample jurisdiction and power to issue summons or add anyone as accused in a case if sufficient evidence is brought during the trial, but at the same time the said power is to be exercised sparingly and not as a matter of course. 7. In the facts and circumstances as mentioned herein above, I am of the view that the learned Magistrate has exceeded his jurisdiction. When in the present case, on the fardbeyan an F.I.R. was instituted and the case was investigated by the police and the case was being prosecuted by the State, it was desirable for the informant to request the Public Prosecutor for filing the petition for summoning the accused persons. Filing of the petition by the informant itself indicates that the petition as well as evidence at a belated stage was brought by the informant against the petitioner with some oblique motive and, as such, the learned Magistrate was not required to act upon the petition filed by the informant. 8. In view of the facts and circumstances, I am of the view that the order dated 20.5.1999 passed by the learned Magistrate, whereby the petitioner was summoned to face the trial, is not sustainable in the eye of law and, accordingly, the order impugned is set aside and the petition stands allowed. Accordingly, the petition is allowed.