Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.17637 of 2011 ====================================================== 1. Basudeo Sah @ Boudha Sah , son of Upenda Sah 2. Rekha Devi, wife fof Budhdeo Sah @ Boudha Sah, both of Village- Kanp, Police Sttion-Rupauli (Mohqanpur) District- Purnea. .... .... Petitioner/s Versus The State Of Bihar .... .... Opposite Party/s ====================================================== Appearance : For the Petitioner/s : Mr. Bimal Kumar, Advocate. For the Opposite Party/s : Mr. Arun Kumar Pandey, A.P.P.10 ====================================================== CORAM: HONOURABLE MR. JUSTICE SHIVAJI PANDEY ORAL ORDER 3 28-09-2012 Heard learned counsel for the petitioners and learned counsel for the State. 2. This application has been filed for quashing the order dated 8.4.2011 passed in S.T. No.566 of 2009 by the learned Additional Sessions Judge, Fast Track Court No.6, Purnea by which the court below has summoned the petitioners to stand the trial. 3. A case bearing Rupauli P.S. Case No.86 of 2008 for offences under [STATUTE] was lodged against nine persons and petitioners were not named as accused in the First Information Report. The police submitted charge-sheet where also the petitioners were not shown as an accused, and accordingly no charge- sheet was filed against any of the two petitioners. Altogether Patna High Court Cr.Misc. No.17637 of 2011 (3) dt.28-09-2012 2 ten witnesses have been examined during trial. P.W.1 at paragraph no. 2, P.W. 2 at paragraph no. 1, P.W.3 at paragraph no.1, P.W.7 at paragraph no.1, P.W.8 at paragraph no.3 and P.W.9 prosecutrix also named the petitioners. Aforesaid witnesses specifically mentioned the involvement of the petitioners. 4. An application under section 319 of the Code of Criminal Procedure (hereinafter referred to as ‘the Code’) was filed before the court below making a prayer that the petitioners may be asked to stand the trial as sufficient materials have come during trial to show that they were also involved in the commission of the offence. The court below considered the materials available on record and after hearing the parties passed the impugned order on 8.4.2011 and issued summons against the petitioners to stand trial. 5. Learned counsel for the petitioners submits that the evidences which have come during trial are not sufficient to call upon the petitioners to stand trial. He has further submitted that there are variance and contradictions in the statements of witnesses which were recorded by the police under section 161 of the Code, statements of prosecutrix recorded by the court under section 164 of the Code and the Patna High Court Cr.Misc. No.17637 of 2011 (3) dt.28-09-2012 3 statements made during trial. Every time the victim had tried to improve the earlier version of the story and contradictions in the statements go to the root of the matter. The court below was not required to call upon the petitioners to stand trial and in support of his contention he has relied on the judgment in the case of Renu Verma Vs. The State of Bihar, reported in 2011 (3) P.L.J.R. 399, paragraph nos. 11, 14 and 15. He has further submitted that while exercising the power under section 319 of the Code the court was also required to look into the materials that have come during investigation. He has further submitted that evidence includes the materials that have come during investigation. 6. Learned counsel for the State has vehemently opposed the proposition that has been raised by learned counsel for the petitioners and has submitted that at the stage of calling persons in exercise of power under section 319 of the code to stand trial, who have not made an accused, the court is not required to see the materials which have come during investigation, as from the words that have been used under section 319 of the Code are enquiry or trial and word investigation is missing. He has further pointed out, the judgment of Renu Verma (supra) has relied on Bhoul Ram Patna High Court Cr.Misc. No.17637 of 2011 (3) dt.28-09-2012 4 Vs. State of Punjab, 2009(1) BBCJ 104(SC) and quoted in extenso paragraph 10 it has specifically been held, the trial court can take such a step to add such persons as accused only on the basis of evidence adduced before it and not on the basis of materials available in the charge-sheet or the case diary, because such materials contained in the charge- sheet or the case diary do not constitute evidence. 7. Having considered the rival contentions of learned counsel for the parties, a reference may be made to the judgment of the Hon’ble Supreme Court in the case of Michael Machado and another Vs. Central Bureau of Investigation and another, reported in (2000) 3 SCC 262 where Hon’ble Supreme Court has held that the basic requirements for invoking the above section is that it should appear to the court from the evidence collected during trial or in the inquiry that some other person, who is not arraigned as accused in that case, has committed an offence for which that person could be tried together with the accused already arraigned. It is not enough that the court entertained some doubt, from the evidence, about the involvement of another person in the offence. It has been further held that the court must have reasonable satisfaction Patna High Court Cr.Misc. No.17637 of 2011 (3) dt.28-09-2012 5 from the evidence already collected during trial or in the inquiry regarding two aspects. First, that some other person, who is not arraigned as an accused in that case has committed an offence. Second, that for such offence that other person could as well as tried along with the already arraigned accused. The Hon’ble Supreme Court has further held that the discretionary power conferred should be exercised only to achieve criminal justice. It is not that the court should turn against another person whenever it comes across some evidence connecting that other person

Applicable IPC Section: 366A

Statute Text:
Section 366A of the Indian Penal Code. Procuration of minor girl. Whoever, by any means whatsoever, induces any minor girl under the age of eighteen years to go from any place or to do any act with intent that such girl may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable with imprisonment which may extend to ten years, and shall also be liable to fine.