IN THE HIGH COURT OF JUDICATURE AT PATNA
Cr.Misc. No.10581 of 2008
BUDHI SAGAR PANDEY S/O LATE RADHA PANDEY,
RESIDENT OF VILLAGE CHARITRAVAN, BUXAR, P.S.
BUXAR (TOWN), DISTRICT BUXAR.
... ... PETITIONER.
Versus
1. THE STATE OF BIHAR
2. RAVINDRA PRASAD CHOUDHARY S/O LATE JIYUT RAM
CHOUDHARY, RESIDENT OF VILLAGE CHARITRAVAN, BUXAR
(TOWN), DISTRICT BUXAR.
... ... OPPOSITE PARTIES.
-----------
2. 24.6.2010. Learned counsel for the petitioner
files a supplementary affidavit. Keep it on
record.
Heard Mr.Digvijay Kumar Ojha, learned
counsel appearing on behalf of the petitioner
and Mrs. Indu Bala Pandey, learned Additional
Public Prosecutor for the State.
The petitioner, while invoking inherent
jurisdiction of this Court under Section 482 of
the Code of Criminal Procedure, has prayed for
quashing of the order dated 14.2.2008 passed in
Sessions Trial No.255 of 2004 by Additional
Sessions Judge, Ist Class, Buxar. By the said
order, the learned Judge has rejected the
discharge petition filed under Section 227 of
the Code of Criminal Procedure on behalf of the
petitioner.
Learned counsel for the petitioner,
while pressing this petition, submits that in
this case though the petitioner was named in
2
the first information report as order giver,
the police after investigation did not collect
any material showing involvement of this
petitioner and thereafter, he was not sent up
for trial. In this case, three accused persons
were forwarded by the police to face trial. It
was submitted by learned counsel for the
petitioner that in the entire record, there is
nothing to suggest regarding involvement of the
petitioner. Learned counsel for the petitioner
has argued that after commencement of the trial
and examination of the witnesses, a petition
was filed under Section 319 of the Code of
Criminal Procedure and thereafter, the
petitioner was summoned to face trial and after
entering into the appearance at appropriate
stage, a petition was filed for discharge and
the learned trial court without applying its
mind has rejected the discharge petition filed
by the petitioner. Accordingly, he has prayed
to quash the order dated 14.2.2008 passed by
Additional Sessions Judge, Ist Class, Buxar in
Sessions Trial No.255 of 2004.
Learned counsel for the petitioner, in
course of argument, files a supplementary
affidavit sworn on 23.6.2010. By way of
supplementary affidavit, learned counsel for
3
the petitioner has brought on record the
evidence of P.Ws.7 and 8. P.W.7 was
Sub.Inspector of Police, who has recorded
fardbeyan of the informant and P.W.8 is also
Sub Inspector of Police, who had conducted the
investigation of the case. While pressing the
evidence of P.Ws.7 and 8, learned counsel for
the petitioner has argued that both the
witnesses have not said anything against this
petitioner.
Mrs. Indu Bala Pandey, learned Additional Public Prosecutor appearing on
behalf of the State has opposed the prayer of
the petitioner.
Besides hearing learned counsel for the
parties, I have also examined the materials
available on the record. In this case, the
petitioner has brought on record the first
information report of Buxar(Town) P.S. Case
No.38 of 2002 as Annexure-1. The said first
information report was registered for the
offences under Sections 302 and 34 of the
Indian Penal Code and Section 27 of the Arms
Act. As per the fardbeyan of the informant,
there is specific allegation against this
petitioner that on the order being given by
this petitioner other co-accused opened fire
4
and in the occurrence, one person was killed
and one person also received fire arm injury.
I have also perused the impugned order.
The learned Sessions Judge, after hearing the
parties and examining the materials available
on the record, has rejected the discharge
petition by assigning a detailed reason. Of
course, at the time of rejection of discharge
petition as per provision contained in Section
227 of the Code of Criminal Procedure, there is
no requirement to assign reason, however, in
case of discharge, it is the duty of the court
to assign reason. It is not in dispute that
during trial when materials were collected
showing involvement of the petitioner, learned
trial court, while exercising power under
Section 319 of the Code of Criminal Procedure,
had summoned the petitioner and the petitioner,
in compliance with summon, appeared before the
court and at the stage of charge, the discharge
petition was filed, which was rejected by the
impugned order.
In view of materials available on the
record particularly in view of specific
allegation made in the fardbeyan, which has
been exhibited as Ext.2, I am of the view that
it is not a fit case to exercise inherent power
5
of this Court under Section 482 of the Code of
Criminal Procedure in favour of the petitioner
and, accordingly, the petition stands rejected.
(Rakesh Kumar,J.)
Md.S.