TARKESHWAR SINGH Vs. STATE

JUDGEMENT

(1.) THIS is an application under section 482 of the Code of Criminal Procedure, 1973 (in short 'the Code'). It is directed against the order dated 5.9.2003 passed by the 6th Additional Sessions Judge, Saran at Chapra in ST. No. 62 of 2000 whereby he was pleased to issue non -bailable warrant of arrest against the petitioner under the provisions of section 319 of the Code for his appearance in this case under sections 302, 120B, 109 and 34 of the Indian Penal Code. The prosecution case, in short, is that one Shashi Kant Singh, got his Fardbeyan recorded at Mashrakh police station on 22.2.1998 alleging therein that on the same day at about 5.15 P.M. the petitioner, Tarkeshwar Singh came on a white Sumo Car and stopped the same in front of Chainpur High School and called Manmohan Prasad, Ragho Singh, Manoj Singh and Chandra Shekhar Singh. He directed them to kill Shivkant Singh, brother of the informant. Thereafter the petitioner went away. After his departure the persons named above took away Shivkant Singh the brother of the informant towards east The informant followed them for about 300 yards. He saw them throwing his brother Shivakant Singh on the ground and subsequently he saw accused Chandra Shekhar Singh firing from his Katta (country made Pistol) as a result of which Shivakant Singh died.

(2.) ON the basis of this Fardbeyan a formal F.I.R. was drawn up against five persons including the present petitioner. After investigation the police submitted charge sheet on 13.10.1998 against Chandra Shekhar Singh, Ragho Singh, Manmohan Prasad, Manoj Kumar Singh showing the last three as absconders. However, the investigation against the present petitioner was kept pending Since Chandra Shekhar Singh was already arrested the charge sheet was submitted in the case declaring the rest as absconders.

(3.) ON 31.2.2001 a petition was filed on behalf of the prosecution to issue summons against the present petitioner since according to the prosecution sufficient evidence has come on record against the present petitioner in the course of trial against accused Chandra Shekhar Singh. The learned trial court vide order dated 7.4.2001 was pleased to issue warrant of arrest against the petitioner and two other accused persons, namely, Ragho Singh and Manoj Singh. Against this order Cr. Rev. No. 269 of 2001 was filed before this Court. In this criminal revision apart from other grounds, it was contended that the provisions of section 319 of the Code will not apply to the present petitioner since he has already figured as an accused in the case and it is only against a person not being an accused that the order under section 319 of the Code would be passed. It was further contended in the said revision petition that the investigation against the petitioner was still pending and he was neither sent up for trial nor any final report in his favour or against him was submitted by the investigating agency. Since the investigation against him is still pending the exercise of power under section 319 of the Code would not be permissible as the same would render the provisions of sections 161, 169, 173, 119 and 193 of the Code redundant.