CRIMINAL MISCELLANIOUS No.21132 OF 2005
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In the matter of an application under section 482
Of the Code of Criminal Procedure.
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RAMAYAN TIWARI @ RAMRAJ TIWARI———-PETITIONER
Versus
THE STATE OF BIHAR———————-OPP.PARTY
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For the Petitioner : M/s Krishna Pd. Singh
Meena Singh &
Manish Kumar no.3
For the State : Mr. Damodar Pd. Tiwary,
APP
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P R E S E N T
THE HON’BLE MR. JUSTICE AKHILESH CHANDRA
Akhilesh Chandra, J. Heard learned counsel for the petitioner
and learned Additional Public Prosecutor for the State.
2. This is an application under section 482
of the Code of Criminal Procedure seeking quashing of
order dated 21.5.2005 passed by Additional Sessions
Judge, Fast Track Court no.3, Rohtas, Sasaram, in
Sessions Trial no. 290 of 2002 exercising powers under
section 319 of the Code of Criminal Procedure
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summoning the petitioner to face trial.
3.Admittedly, one Chenari P.S. Case no.
44 of 2000 under Sections 147, 148, 149, 323, 324, 307
and 302 of the Indian Penal Code was instituted at the
instance of one Anil Tiwary against thirteen persons
including the petitioner who alone, after investigation,
was exonerated by the Police who submitted charge
sheet against twelve accused persons. Accordingly,
cognizance was taken and after commitment the trial
commenced wherein two witnesses Siddhu Tiwary and
Ram Dulari Devi were examined. prayer on behalf of
the informant was made to add the petitioner as one of
the accused. After hearing, court below allowed the
prayer giving reason to file the instant case.
4. Witness no.1 examined on behalf of the
prosecution in trial though has named the petitioner
stating his involvement at initiation of occurrence but
cross-examination of this witness was deferred on
22.11.2004 since thereafter he did not turn up for cross-
examination. No doubt, there is nothing on record to
show what happened thereafter but, prima facie, the
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evidence is not complete. Moreover, in paragraph 1 of
his statement the witness has stated contrary to the
prosecution case that petitioner and three others were
digging the field containing paddy plants and there is
nothing more against the petitioner. Another witness
Ram Dulari Devi, who is none else than mother of
P.W.1 likewise her son stated same thing in paragraph 1
contrary to the prosecution case and during cross-
examination paragraph 49 it appears that perhaps in her
statement under Section 161 of the Code of Criminal
Procedure she had not named the petitioner besides a
few more that it appears that she has denied the
suggestion. But, again this much can be said that except
initial presence of the petitioner she has said nothing
against him.
5. On face of above materials learned
Additional Public Prosecutor also fairly concedes that
this case stands squarely covered on the decision of the
Apex Court on the similar point in the case of Brinda
Band Das & Others V. State of West Bengal; 2009(2)
BBCJ IV-90 wherein in paragraph 19 it has been held :
“The fulcrum on which the invocation of
4Section 319 Cr.P.C. rests is whether the
summoning of persons other than the named
accused would make such a difference to the
prosecution as would enable it not only to
prove its case but to also secure the conviction
of the persons summoned.”
The learned Additional Public Prosecutor
further concedes that there is absolutely nothing to
support the impugned order which fail to prove the test
as prescribed above.
6. Accordingly, the impugned order is
quashed the application stands allowed.
(Akhilesh Chandra, J.)
Patna High Court,
The 24th August, 2010.
AAhmad/ (NAFR).