PRASHANT KUMAR, J. - (1.) THIS application has been filed for quashing the order dated 20.08.2013 passed by 2nd Additional Sessions Judge, Chatra in S.T. No. 54 of 2009 corresponding to B. Nagar P.S. Case No. 33 of 2008 whereby and whereunder the learned court below allowed the application of the prosecution filed under section 319 of the Cr.P.C. and decided to try the petitioner along with other coaccused for the murder of Lakhi Devi and accordingly issued non bailable warrant of arrest against him.
(2.) IT is alleged that in the morning of 21.07.208 accused persons, named in the FIR (including the petitioner)were forcibly opening a door in the land of informant and when the informant, his mother and wife protested, they assaulted informant's mother with Lathi, Danda and bricks. It is stated that due to the aforesaid assault, informant's mother become seriously injured and fell on the ground. It is stated that during the occurrence informant and his wife also received injury. It is further stated that when the informant and other villagers had tried to take the injured mother to the hospital, they found that she had already died. Accordingly, the present case bearing B. Nagar Case No. 33 of 2008 instituted under section 147, 149, 323 and 302 of the Indian Penal Code and police took up investigation. It appears that after investigation, police submitted charge sheet against accused persons except petitioner. The Investigating Officer submitted final form in favour of petitioner. It then appears that the case of other accused persons committed in the court of sessions as the offence under section 302 of the I.P.C. is exclusively triable by the court of Sessions.
(3.) IT further appears that learned Sessions Judge framed charges against other eight accused persons and then recorded evidences of the witnesses. It appears in course of trial prosecution filed an application under section 319 of the Cr.P.C. on 13.12.2010 and prayed that petitioner Prakash Soni be arraigned and tried along with other accused persons, because P.W. 2 Sanjiv Kumar Upadhyay, who is an eye witness of the occurrence, had stated that at the time of occurrence, Prakash Soni ( petitioner) was instigating other accused persons for killing the old woman. The aforesaid application filed by the prosecution was allowed by the learned courts below as according to it prima facie case against the petitioner, Prakash Soni, made out for instigating other accused person to commit murder of deceased (Lakhi Devi). Against the aforesaid order, present application filed. Sri A.K. Chaturvedy, learned counsel appearing for the petitioner submits that under section 319 of the Cr.P.C., any person can only be arraigned as an accused if it appears to the court that there are sufficient evidences for his conviction. It is submitted that in the instant case except P.W. 2 none had stated that petitioner was present at the place of occurrence. It is further submitted that during the investigation, the I.O. had found that on the date and time of occurrence, petitioner had gone to the Bank of India, Jori for depositing money of Rani Devi, Rita Devi and Ragnunandan Prasad. It is submitted that since the I.O. has found that on the date and time of occurrence petitioner was not present on the place of occurrence, therefore he concluded that petitioner was falsely implicated by the informant, because he is brotherinlaw of coaccused Kishori Prasad Soni. Accordingly, Sri Chaturvedy submits that if all the evidences will be taken together, the petitioner will be acquitted in the present case. Accordingly, he submits that addition of petitioner as coaccused in the instant case is an abuse of the process of court, hence cannot be sustained.;