- (1.)THIS Criminal Misc. Petition has been filed for quashing the order dated 23.4.2007 passed by the learned Additional Sessions Judge (FTC IV ), Deoghar, in connection with Sessions Case No. 282 of 2002 whereby the petitioner and five others were arrayed as accused under section 319 of the Code of Criminal Procedure and non-bailable warrant of arrest has been issued against them .
(2.)THE prosecution case, in short, is that the deceased Shyam Sundar Chaurasia who happens to be the father of the informant was working as Advocate's Clerk in Civil Court Deoghar . On 23.5.2000, as usual, he left home for going to court, but did not return home even during night. On the next date at 11.00 a.m. the police informed about the dead body of Shyam Sundar Chaurasia to the informant and other family members whereafter fard beyan of Dinesh Chaurasia (Modi) was recorded. The informant raised allegation against accused Parikshit Modi, Ram Tahal Chaurasia and Mahendra Modi in the alleged murder and as such Deoghar (Mohanpur) P.S. Case No. 109 of 2000 was registered against the said accused persons and after completion of the investigation, charge sheet against the accused Parikshit Modi was filed.
In course of trial, PW2 Ram Prasad Chourasia, PW3 Bharat Chourasia and PW5 Birju Mandal have named the present petitioner and five others and described their involvement in the alleged murder of Shyam Sundar Chaurasia. PWs 2 and 3 have clearly stated that they had seen the aforesaid persons namely Ram Tahal Chaurasia, Mahendra Mandal, Rajhans Modi, Basant Modi, Sanjay Modi and Santosh Modi forcibly kidnapping Shyam Sundar Chourasia ( deceased ) in a Maxi Taxi from Baijnathpur chowk and on the next day, dead body of the deceased was detected. After such evidence was adduced, Addl.P.P. filed a petition under section 319 Cr.P.C. to array the petitioner and the said five named persons as accused to face trial. Learned Addl. Sessions Judge, (FTC) IV, Deoghar after hearing the parties and considering the evidence on record has passed the impugned order and directed issuance of non bailable warrant against them to secure their attendance to proceed with the trial against them too.

(3.)IT is submitted that the prosecution witnesses (PWs2 and 3) are none else, but brothers of the deceased, but they have not disclosed such story before the police in course of investigation and they have created a new story in course of trial by deposing that the deceased was kidnapped by the aforesaid persons from Baijnathpur chowk (Deoghar). Learned Sessions Judge has erred in appreciating the evidence before passing the order under section 319 Cr.P.C. Learned Addl. Sessions Judge has also arbitrarily issued non bailable warrant of arrest against the petitioner and five other persons. Before passing such order, the petitioner was never summoned to put forth his stand and he was not given opportunity of hearing; the impugned order is erroneous and illegal and therefore liable to be quashed.