Dhananjay Pandey @ Dhananjay Kumar Pandey vs The State of Bihar

Abhijit Sinha, J.—The petitioner, who is not named in the F.I.R. of Kadamkuan P.S. Case No. 1047 of 2006 but whose name cropped up subsequently in course of investigation but against whom final form was submitted by the police after investigation and notwithstanding the same the learned Chief Judicial Magistrate differing from the final form has taken cognizance under Sections 364-A, 302, 201 and 120-B I.P.C. as also Section 27 of the Arms Act, has prayed through this application for quashing of the same.

The submission on behalf of the petitioner is that he was neither named in the F.I.R. nor has any of the witnesses examined in course of investigation disclosed his name as one of the participants in the crime. It is further submitted that the only material available against this petitioner in the whole of the case diary is paragraph-127 of the case diary wherein the S.D.P.O. (Sadar), Patna and the S.I.-cum- Officer Incharge, Kankarbagh, informed the Investigating Officer, that Ram Pravesh Rai, one of the kidnappers, was in constant touch through mobile with this petitioner who was an Advocate''s Clerk and that this fact had come to light from the print out and I.M.E.I. and directions were issued to arrest him.

It appears from the impugned order of the learned Magistrate that in differing with the final form submitted by the police, so far as this petitioner and others are concerned, he has relied on materials available in paragraphs-2, 6 to 9, 12, 25, 35, 39 to 41, 53, 57, 60, 67, 72, 75, 76, 79, 86, 102, 108, 117 to 119, 126, 134 and 135 of the case diary. I have perused these paragraphs of the case diary and as it appears therefrom that except paragraph-127 of the case diary, the full details whereof has been mentioned in the preceding paragraph of this order, there is no other materials in the whole of the case diary to connect this petitioner with the crime or offence in question.

The learned Counsel for the State is unable to throw any light on this issue.

In view of the fact that there is no material in the whole of the case diary to connect the petitioner in any manner with the offence or crime in question, taking of cognizance against him and proceeding against him, in my opinion, would be an abuse of the process of the court.

Accordingly, the impugned order, so far as this petitioner is concerned, is hereby quashed and the application is allowed. However, it is made clear that in the event the petitioner''s name comes to light as a participant in the offence or the crime in course of the trial, the court shall be at liberty to summon him u/s 319 Cr.P.C.