AJAY PATHAK @ AJAYA KUMAR PATHAK @ PANDIT PATHAK SON OF LATE DINA NATH PATHAK Vs. STATE OF BIHAR AND YOGENDRA PRASAD CHOUDHARY S/O LATE RAJU NANDAN CHOUDHARY

JUDGEMENT

(1.) THE petitioner, one of the F.I.R. named accused of Barari P.S. Case No. 70 of 2000 who had not been charge -sheeted but later after the commitment of the case to the Court of sessions where it was numbered as Sessions Trial No. 74 of 2001 he was summoned under Section 319 Cr.P.C. is aggrieved by and has prayed for quashing of the order dated 24.8.2007 passed therein by the learned Presiding Judge, Fast Track Court No. III, Katihar, whereby his petition for discharge under Section 227 Cr.P.C. has been rejected.

(2.) Briefly stated the prosecution case is that in the evening of 8.8.2000 while the informant with his younger brother, Rajendra Choudhary, since deceased, and his nephew, Dilip Choudhary, was returning home from Barari Bazar and enroute had reached near Chowk Imali they met co -accused Munna Pathak, who accompanied them on there way home and they were followed by one Munchlal Rishi. It is said that at about 7.30 P.M. they reached near the bamboo clump of Keshaw Rai, the petitioner, suddenly jumped out from the bushes holding a countrymade pistol in his hand and immediately asked his brother, Munna Pathak, as to why he was talking with his enemies and ordered to eliminate Rajendra Choudhary, whereupon Munna from behind shot twice at Rajendra with a countrymade pistol which was followed by another fire by the petitioner as a result of which Rajendra Choudhary fell to the ground and died instantaneously.

(3.) AFTER due investigation a charge sheet under Section 302 IPC and Section 27 of Arms Act was submitted against co -accused Munna Pathak on 19.12.2000 and the investigation was kept pending against the petitioner. It also appears that the Deputy Superintendent of Police, Katihar pursuant to the directions of the Superintendent of Police, Katihar, thoroughly supervised the case and found the allegations leveled against the accused persons to be false and the role of the Officer -In -Charge, Barari P.S. was also not found impartial and accordingly the Deputy Superintendent of Police on 19.1.2001 recommended for submissions of final form showing the petitioner as innocent and in accordance with the directions of the Superintendent of Police, Katihar, to submit final form, the final form was submitted on 19.5.2001 showing the petitioner as innocent. In view of the final form submitted the learned Chief Judicial Magistrate, Katihar, issued notice to the informant who notwithstanding receipt of the notice did not appear to contest the matter whereupon by order dated 3.8.2001 the learned Chief Judicial Magistrate discharged the petitioner. It appears that in the sessions trial of co -accused Munna Pathak 14 witnesses on behalf of the prosecution were examined and on consideration of the same Munna Pathak was convicted vide judgment dated 2.12.2003 and sentenced to undergo imprisonment for life under Sections 302/34 IPC and farther to undergo R.I. for 3 years on the charge under Section 27 of the Arms Act. It further appears that some of the witnesses in the said trial had deposed against the petitioner herein showing his involvement in the alleged murder of Rajendra Choudhary by fire arm and upon a petition filed by the prosecution the petitioner was summoned to face trial under Section 319 Cr.P.C. by order dated 5.4.2003. Aggrieved thereby petitioner moved this Court in Cr. Revision No. 374 of 2003 which was dismissed on 30.8.2004. Having failed in his efforts the petitioner moved the trial court for discharge under Section 227 Cr.P.C. on the ground that the learned Chief Judicial Magistrate having accepted the final form submitted by the police, it amounted to a discharge of the petitioner under Section 227 of the Cr.P.C. and the learned trial court had failed to appreciate that the said order not having been challenged had attained finality. The submissions advanced on behalf of the petitioner did not find any favour with the Court and the same was dismissed.