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2012 DIGILAW 436 (PAT)

Wakil Dewan v. State of Bihar

2012-03-13

RAKESH KUMAR

body2012
ORDER Heard Shri Pathak Dhananjay Kumar, learned counsel for the petitioner and Shri Binod Kumar, learned Additional Public Prosecutor. 2. The present petition has been filed by the informant of Lauriya P.S. Case No.61 of 2007 against part of the order dated 14.8.2008 passed by Additional Sessions Judge, Fast Track Court, Bettiah in Sessions Trial lNo.746 of 2007, whereby the learned trial court, while partly allowing petition under Section 319 of the Code of Criminal Procedure filed by the prosecution for summoning number of accused persons, had refused to summon opposite party nos.2 and 3 to face trial along with accused persons, who were already put on trial. 3. Learned counsel for the petitioner submits that during the trial, three witnesses have been examined and all the three witnesses have consistently stated that besides other accused persons, opposite party nos.2 and 3 had also actively participated in the murder of the father of the informant. He submits that since evidence had already been brought on record showing complicity of opposite party nos.2 and 3, the learned trial court was required to summon opposite party nos.2 and 3 along with other accused persons, but the learned Sessions Judge, without any rhyme and reason, has not summoned opposite party nos.2 and 3 to face trial with accused persons. Learned counsel for the petitioner has specifically referred to Annexures 2, 3 and 4 to the petition i.e. deposition of P.Ws.1, 2 and 3 during the trial. In this case, by order dated 21.10.2011, case diary was summoned and same has been received and is on record. 4. While opposing the prayer of the petitioner, learned Additional Public Prosecutor submits that it was specific case of prosecution right from the very beginning that five accused persons had actively participated in committing murder of father of the informant. The petitioner, who is informant in the present case, had given categorical statement in his fardbeyan disclosing therein that five accused persons, namely, Mansoor Dewan, Faiyaz Dewan, Mustaq Dewan, Firoj Dewan and Samsuddin Dewan conspiring with each other in well planned manner, had intercepted the father of the petitioner in a mango orchard and thereafter, he was done to death. The petitioner, who is informant in the present case, had given categorical statement in his fardbeyan disclosing therein that five accused persons, namely, Mansoor Dewan, Faiyaz Dewan, Mustaq Dewan, Firoj Dewan and Samsuddin Dewan conspiring with each other in well planned manner, had intercepted the father of the petitioner in a mango orchard and thereafter, he was done to death. Besides alleging specific overt act against five F.I.R. named accused persons, the informant disclosed that in the conspiracy one Haribansh Shah was also involved and F.I.R. was lodged against five accused persons and after investigation, charge sheet was submitted against five accused persons. During investigation, doubt was created against some of the accused persons, who were not named in the F.I.R., but since no material was collected to connect them, charge sheet was submitted only against five F.I.R. named accused persons. 5. Learned counsel for the petitioner had argued that immediately after registering F.I.R., the informant had also filed a protest petition on 30.5.2007. 6. In this case, occurrence had taken place on 25.5.2007 in the morning at 7.30 A.M. and on the same date, F.I.R. was lodged. After submission of charge sheet, the learned Chief Judicial Magistrate had taken cognizance and case was committed to the court of Sessions. After framing of charge, trial has commenced against five accused persons and during the trial, three witnesses, who had claimed to be eye witnesses, had come out with a new case disclosing specific overt act against those accused persons, who were neither named in the F.I.R. nor they were charge sheeted. It was submitted by learned Additional Public Prosecutor that the learned trial court, after examining materials available on record, has rightly not summoned opposite party nos.2 and 3 to face trial and there is no error in the order. 7. Besides hearing learned counsel for the parties, I have also perused the materials available on record including the case diary. It is true that at the time of deposition during the trial, three witnesses, who are non else, but close relative of informant and deceased, had disclosed regarding complicity of opposite party nos.2 and 3 and other accused persons, who were not charge sheeted. 8. It is true that at the time of deposition during the trial, three witnesses, who are non else, but close relative of informant and deceased, had disclosed regarding complicity of opposite party nos.2 and 3 and other accused persons, who were not charge sheeted. 8. After going through the entire case diary as well as the F.I.R., it is evident that informant himself made specific statement regarding commission of offences by five F.I.R. named accused persons and some of the witnesses, who were examined during the trial, were also witnesses on the F.I.R. During the trial, they have come out with entirely new story which cannot be believed. Moreover, while summoning a person to face trial under Section 319 of the Code of Criminal Procedure, it is required that on the record there must be sufficient evidence to form an opinion that there is probability of conviction and only then he can be summoned to face trial. Power under Section 319 of the Code of Criminal Procedure can not be exercised by the trial court as a matter of course. 9. In view of the facts and circumstances as indicated above as well as materials available on record, the court is of the opinion that the learned Sessions Judge, while refusing to summon opposite party nos.2 and 3 to face trial, has committed no error and order requires no interference. The petition stands dismissed. ?