Birendra Prasad Singh @ Popli vs The State of Bihar

Rekha Kumari, J.—This is an application u/s 482 of the Code of Criminal Procedure for quashing the order dated 21.2.2004 passed by the Assistant Sessions Judge, Bhagalpur in S.Tr. No. 683/2002 by which the petition filed by the petitioner before the Trial Judge for his discharge has been rejected. Learned counsel for the petitioner submitted that no witness in the case diary supported the case of the prosecution as against the petitioner including one Subhash Prasad Singh from whom the informant is said to have got knowledge of the incident mentioned in the F.I.R. Learned counsel submitted that not a single witness has taken the name of the petitioner during investigation.

He further submitted that O.P. by filing a counter affidavit has also admitted this fact and mentioned in paragraph 10 that the I.O. has not mentioned the name of the petitioner in the statements of the witnesses made u/s 161 Cr.P.C. in the case diary, though he has levelled allegations against the I.O. that he intentionally did not mention the name of the petitioner.

Learned counsel appearing for O.P. No. 2 and the learned A.P.P. for the State opposed the prayer and submitted that four witnesses were examined u/s 161 Cr.P.C. and they have supported the complicity of the petitioner.

Learned counsel for the petitioner, in reply, submitted that the above witnesses were examined at the instance of informant and not at the instance of the police. This is not controverted by the O.P. Learned counsel for the petitioner referred to the decision of a Bench of this Court passed in Cr. Misc. No. 12317/2003 and submitted that by referring to the decision of the Apex Court reported in Jogendra Nahak and Others Vs. State of Orissa and Others, , it has been held therein that such statement u/s 164 which is not sponsored by the I.O. cannot be permitted to remain on record and the order of taking cognizance cannot be based on such material.

It appears from the submissions of the learned counsel that there is no material in the case diary against the petitioner and the petition of the petitioner was rejected on the basis of the statement of witnesses u/s 164 Cr.P.C. It also appears that those statements were recorded at the instance of the informant and were not recorded at the instance of the I.O.. So when the statements were not sponsored by the investigating agency, in view of the above decision, those statements should not be considered by framing charge. Therefore, the Assistant Sessions Judge was not justified in rejecting the prayer of the petitioner to discharge them.

The impugned order is, therefore, set aside. The application is allowed. It is, however, open to the Assistant Sessions Judge to add the petitioner as accused after some evidence u/s 319 Cr.P.C.