MAHESHWAR YADAV Vs. THE STATE OF BIHAR

JUDGEMENT

(1.) The petitioner, who is informant in Sessions Trial No. 668 of 2008 (arising out of Matihani P.S. Case No. 33 of 2006), registered for the offence under Sections 302/34 of the Indian Penal Code and Section 27 of the Arms Act, has prayed for quashing of an order dated 3.8.2011-passed by learned Fast Track Court-V, Begusarai (hereinafter referred to as "FTC-V"). By the said order, the learned FTC-V has rejected the petition filed under Section 319 of the Code of Criminal Procedure, 1973 (in short "Cr.P.C.") for summoning opp. party Nos. 2 to 5 to face trial alongwith the accused persons facing trial in the said case. Short fact of the case is that on the written complaint of petitioner (informant), an F.I.R., vide Matihani P.S. Case No. 33 of 2006 was registered for the offence under Sections 302/34 of the Indian Penal Code and Section 27 of the Arms Act, 1959 against opp. party Nos. 2 to 5, one Budhan Singh @ Raj Kumar Singh and other three unknown accused persons. It was disclosed by the petitioner-informant in the F.I.R. that he was informed by 1. Chandan Choudhary (PW-1), 2. Sanjay Choudhary, 3. Santosh Kumar @ Moti (PW-3), 4. Shashi Bhushan Rai @ Jaggu (PW-2), and 5. Bholi Rai (PW-4) that on 4.5.2006, son of informant, namely; Rakesh Kumar @ Fantush Kumar was killed by accused persons, whose names have been referred here-in-above. It was disclosed that on 4.5.2006, his son (deceased) had gone to play a Cricket match in Malitola Sinha. In the said match, several people of Matihani had gone to witness the match. At about 5:15 (A.N.), after the match was over, accused No. 2 (Arvind Singh), who was Mukhiya of Gram Panchayat, Matihani alongwith opp. party Nos. 3 to 5, accused Budhan Singh @ Rak Kumar Singh and other three unknown accused persons variously armed arrived there. Accused Arvind Singh (opp. party No. 2) firstly opened fire and he exhorted other accused persons to catch the son of the informant, whereas, his son tried to flee away. After some distance the accused persons got hold of his son and all the accused persons killed him by firearm. The information regarding the occurrence was received by the informant at 6:00 P.M. and he noticed that several villagers had arrived Village-Malitola Simha, where he was informed by witnesses, mentioned above, regarding the' exact occurrence. He claimed that several other persons had also seen the occurrence. The reason for occurrence, as disclosed by the informant, was that on 30.3.2005, the Mukhiya (opp. party No. 2) had created nuisance in the village. He alongwith 25-30 young persons variously armed had assaulted several persons and he had also used abusive language at his residence. For the said occurrence, an F.I.R. was got lodged in the Matihani Police Station, regarding which, the panchayati was also held and officer-in-charge-cum-Inspector of the Matihani Police Station had instructed for not repeating the same thing in future.

(2.) After lodging F.I.R., vide Matihani P.S. Case No. 33 of 2006, the police started investigation, however; after investigation, police submitted first charge-sheet on 15.5.2007 against unknown three accused persons, keeping the investigation in respect of other accused persons open. It has been disclosed by the informant that on 27.5.2006, he had filed protest petition disclosing therein that the Investigating Officer was not investigating the case in a fair manner. Neither the statement of eye-witnesses was got recorded under Section 164 of the Cr.P.C. nor any of the F.I.R. named accused persons were arrested. Thereafter, the case of three accused persons was committed to the Court of Sessions and trial had commenced, vide Sessions Trial No. 668 of 2008. After framing of the charge, four prosecution witnesses were examined. During evidence of the witnesses, who were ocular witnesses, described regarding the involvement of opp. party Nos. 2 to 5. Thereafter, on 9.12.2009, a petition under Section 319 of the Cr.P.C. was filed on behalf of prosecution for summoning the accused persons named in the F.I.R. Since final charge-sheet was not submitted against the F.I.R. named accused persons and investigation was still continuing, the learned FTC-V on 29.1.2010 dismissed the said petition, observing as follows:--

(3.) Subsequent to dismissal of petition filed under Section 319 of the Cr.P.C. the police submitted second charge-sheet, vide Charge-sheet No. 110 of 2010 dated 30.8.2010. The police exonerated the opp. party Nos. 2 to 5 and submitted charge-sheet against one of the named accused, namely; Budhan Singh @ Raj Kumar Singh showing him as absconder. Since opp. party Nos. 2 to 5 were not sent up for trial by the Investigating Officer, the prosecution again filed a petition under Section 319 of the Cr.P.C. on 8.7.2011 for summoning opp. party Nos. 2 to 5 to face trial, which has again been rejected by order dated 3.8.2011, passed by the learned FTC-V, which has been assailed in the present petition.