- (1.) THIS application under section 482 Cr. RC. has been filed for quashing the order dated 1.8.2001 passed in S.T. No. 302/ 2000 by the learned 1st. Addl. Sessions Judge, Koderma, whereby and whereunder it has summoned the petitioners and put them on trial under section 319 Cr. RC. on the ground that during the course of prosecution evidence, some witnesses had disclosed the involvement of the petitioners.
(2.) ON 9.7.1999 one Birendra Kumar lodged a fardbeyan that in the previous night, 10 -12 dacoits had committed dacoity in his house at the point of pistol and bomb and also assaulted some persons including his brother Manoj Kumar and had taken away ornaments, costly clothes etc. The person, whose fardbeyan was recorded, claimed to have identified 5 accused persons, whose names, parentage and address were given in the fardbeyan. The matter was brought to the notice of the police and the police and villagers arrested the five dacoits who disclosed their names described in the fardbeyan itself. The arrested dacoits had disclosed the names' of certain other persons namely Mahesh Yadav, Karom Sonar, Kailash Prasad, Kiridhwar, Ibrar Mian. During the course of investigation, it is alleged by the petitioners that as these petitioners are on inimical term with the informant, the family members of the informant tried to drag them in the present case, but ultimately in course of investigation, as no material was found against the petitioners, they were not sent up in the case for trial. Accordingly, cognizance was taken against other accused and not against the petitioners. It is the contention of the petitioners that they had already filed an Informatory Petition on 30.6.2000 before the Addl. Chief Judicial Magistrate, Koderma, ventilating the grievances that the informant and his family members might implicate them in the present case. In order to support the enmity, the petitioners have stated that a Title Appeal No. 22/1990 is also pending between the parties. It is further submitted that the petitioner no. 2 is a neighbour of the informant and the petitioner no. 1 has also got a land dispute, due to which he is on inimical term with the informant. It is also stated that the house of both the petitioners is adjacent to the house of the informant, so had they actually committed the crime, their names would have been given in the F.I.R. itself, because the informant, in the F.I.R. itself admitted that in the light he had seen the miscreants. After the charge was framed, three witnesses were examined and their evidence does not disclose the involvement of the petitioners, except this much that while the crime was being committed, the witness had seen the petitioners who had concealed themselves when the informant's brother Manoj Kumar was being taken to his shop and P.W.2 had also stated that when he was closing the door, the petitioners were standing in front of the door and the P.W.3 has also stated the same. In the course of argument, it was contended by the learned counsel for the petitioners that since the petitioners are the neighbours and their houses are adjacent to the house of the informant, if something was happening in the house of the informant then their coming out from their own house will not amount to involvement of these petitioners in the crime, rather their presence at that place, hour and situation is the most natural. It was also contended that the police had not submitted chargesheet against them and therefore, at this belated stage, there was no justification on the part of the court to make them accused in this case.
(3.) ON perusal of the impugned order, it transpires that the submission that was made before the learned court below by the prosecution was that in the case diary, there was evidence that Arun Sonar and Bachchu Pasi were playing active role in committing the crime and the S.P. had also found the complicity of these accused persons in the commission of the dacoity and accordingly the Investigating Officer had prayed for issuance of warrant against the two accused persons in the court of the learned Addl. Chief Judicial Magistrate. The prosecution had relied upon the evidence of P.W.1 and P.W.2 for summoning the accused -petitioners for which reliance was made on the decision reported in 1991 (2) PLJR 139 and 1990 East. I.C.C. 326.;