Ravi Nath Verma, J. - (1.) Invoking the revisional jurisdiction of this Court under Ss. 397 and 401 of the Code of Criminal Procedure (in short 'the Code'), the petitioners have questioned the legality of the order dated 26.2.2015 passed by the learned Additional Sessions Judge -V, Giridih in Sessions Trial No. 167 of 2014 whereby and whereunder while rejecting the prayer for discharge of one of the accused Binod Paswan, the court below took cognizance of the offence under Sec. 302/34I.P.C. and also under Sec. 27 of Arms Act against the above petitioners and directed to issue summons against them for framing of charge. The factual score as depicted in the F.I.R. lodged at the instance of the informant Md. Mazhar Ansari is that on 16.4.2011, his father had gone to Palaungia Hat for selling mutton and at about 6:45 p.m., one of his friend Md. Sheraj informed him on telephone that his father had met with an accident under Batlohia river bridge. Whereafter the informant along with co -villagers rushed to the said place but on way he met with his friend, who had called him on phone and thereafter they brought his father on motorcycle, but by that time, his father had died. The informant noticed two firearm injuries on the back from where blood was oozing out and came to know that his father was shot dead. The informant raised his suspicion against Prakash Modi, Rameshwar Modi (since deceased), Dashrath Modi and Shankar Rana the three petitioners as there was some existing land dispute between the parties.
(2.) During the investigation, police found the involvement of all the four accused persons in committing murder of Niyamat AN, the father of the informant, due to land dispute but subsequently as the investigation progressed, the call details report (C.D.R.) of a mobile phone was obtained from which the informant was getting threatening calls not to marry Sagira otherwise he would also be killed. It was found that the mobile was being used by one Binod Paswan, a co -accused, and finally the police after investigation came to the conclusion that the said Binod Paswan, who was giving tuition to Sagira for the last more than two years, had developed some intimate relationship, which was objected by the father of the informant Niyamat Ali whereafter he was killed. The police after investigation submitted the charge -sheet against Binod Paswan and found the case as not true against the present petitioners and submitted final form against them. The concerned court took cognizance of the offence and committed the case of Binod Paswan to the court of - sessions. Before the Court of Session, a petition under Sec. 227 of the Code was filed by the said accused Binod Paswan, which was rejected by the order impugned but the court finding sufficient materials and involvement of the present petitioners in the alleged offence due to prior land dispute and litigation, took cognizance of the offence and directed to issue summons as indicated above relying upon the judgment of the Hon'ble Supreme Court in the case Dharam Pal and Others v/s. State of Haryana and Another; : (2014) 3 SCC 306 [: 2013 (3) JLJR (SC 342]. Hence, this revision.
(3.) Mr. Tripathy learned senior counsel appearing for the petitioners while assailing the order impugned as perverse and bad in law seriously contended that the court below grossly erred in issuing summons to the petitioners without following the procedures as provided in the Code. It was also submitted that the court below has misconstrued the provisions conferred under Ss. 193 and 209of the Code and wrongly exercised his power and took cognizance of offence and summoned the petitioners and also miserably failed to appreciate that the Investigating Officer had rightly submitted the final form against the petitioners finding no sufficient ground to proceed. Learned senior counsel further submitted that the court below by inventing a third story summoned these petitioners to appear for framing of charge and there is absolutely no evidence on record to show the complicity of these petitioners in the alleged crime. Hence, the order impugned is fit to be set aside.;