CRIMINAL MISCELLANEOUS No.20728 OF 2000 --------- In the matter of an application under Section 482 of the Code of Criminal Procedure,1973. --------- 1. LAKHAN KUMAR VERMA 2. SUMANT KUMAR VERMA BOTH SONS OF DEO KUMAR LAL DAS 3. ANOKHA DEVI WIFE OF DEO KUMAR LAL DAS 4. MOTI DEVI, WIFE OF LAKHAN KUMAR VERMA 5. NUTAN DEVI, WIFE OF ANANT KUMAR VERMA 6. BABY DEVI, WIFE OF SUMANT KUMAR VERMA ALL RESIDENT OF VILLAGE BALBHADRAPUR, P.S. BIRPUR, DISTT. SUPAUL. … … PETITIONERS Versus 1. THE STATE OF BIHAR 2. SITA DEVI WIFE OF SATYA NARAIN LAL DAS, RESIDENT OF VILLAGE BALBHADRAPUR, POLICE STATION BIRPUR, DISTT. SUPAUL. … … OPPOSITE PARTIES. ------ For the Petitioners : M/S Prashant Vedasen, Adv. Binod Kumar Ambashtha, Adv. For the State : Mr. A.M.P. Mehta, A.P.P. ------ P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR ------- Rakesh Kumar, J. Six petitioners, while invoking inherent jurisdiction of this court under section 482 of the Code of Criminal Procedure, have prayed for quashing of an order dated 21/22.4.2000 passed by Sub. Divisional Judicial Magistrate, Birpur in G.R. No.268 of 1997 arising out of Birpur P.S. Case No.73 of 1997. By the said order, the learned Magistrate has allowed the petition filed under section 319 of the Code of Criminal Procedure on behalf of the prosecution and summoned the petitioners to face trial along with accused persons named in the first information report, who were facing trial. 2. Short fact of the case is that on allegation of commission of offence under sections 341, 323, 447 and 504/34 of the Indian Penal Code, on 6.6.1997 a first information report (hereinafter 2 referred to as „FIR) vide Birpur P.S. Case No.73 of 1997 was registered against eight accused persons which include six petitioners before this court. After investigation police submitted charge sheet only against two accused persons namely, Deo Kumar Lal Das and Anant Kumar Verma on 22nd June 1997 under sections 341, 323 and 504 of the Indian Penal Code. After filing of the charge sheet, the learned Magistrate, differing with the police report, took cognizance of the offence against all the F.I.R. named accused persons which include the petitioners. At the stage of charge a petition was filed on behalf of these petitioners for their discharge and the learned Magistrate after examining the materials available on the record and after hearing the parties, discharged the petitioners and, thereafter, trial commenced against only two accused persons, against whom the police had submitted charge sheet. 3. While evidence was going on, evidence of three witnesses were recorded. The prosecution considering the fact that evidence disclosing involvement of these petitioners were also brought on record, filed a petition under section 319 of the Code of Criminal Procedure for summoning the petitioners to face trial along with two other accused persons, who were facing trial and by the impugned order dated 21/22.4.2000, the learned Magistrate allowed the petition and summoned the petitioners for facing trial. 4. Aggrieved with the order dated 21/22.4.2000 passed by the learned Sub. Divisional Judicial Magistrate, the petitioners approached this court by filing the present petition. On 21.8.2001, while issuing notice to opposite party no.2, this court directed that in the meantime, further proceeding in G.R. No.268 of 1999 (State Vs. 3 Deo Kumar Lal and Ors.) pending before the S.D.J.M., Birpur, shall remain stayed. Despite service of notice, opposite party no.2 did not appear and, accordingly, on 13.2.2002 the case was admitted for hearing and it was directed that during the pendency of this application, interim order dated 21.8.2001 shall remain operative. 4. Mr.Prashant Vedasen, learned counsel appearing on behalf of the petitioners, while challenging the impugned order has raised a pure question of law as to whether if an accused, who was discharged at the stage of charge can be summoned under section 319 of the Criminal Procedure Code? Learned counsel for the petitioners besides raising question of law has also argued that, if for the time being it is assumed that the learned Magistrate having power to summon the petitioner, whether it would be appropriate to direct the petitioners to participate in the criminal proceeding before the court below after expiry of such a long delay that too for trivial allegation which was leveled in the present case. 6. While questioning the jurisdiction of the learned Magistrate for summoning the petitioners under section 319 of the Code of Criminal Procedure, learned counsel for the petitioners has firstly referred to the provision contained in section 319 of the Code of Criminal Procedure, which is as follows: “ 319. Power to proceed against other persons appearing to be guilty of offence.- (1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person 4 could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed. (2) Where such person is not attending the Court he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid. (3) Any person attending the Court although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed. (4) Where the Court proceeds against any person under sub-section (1) then- (a) the proceedings in respect of such person shall be commenced afresh, and witnesses re- heard; (b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced.” 7. It was submitted that section 319 of the Code of Criminal Procedure itself makes it clear that only those persons can be summoned while exercising power under section 319 of the Code of Criminal Procedure, who were not earlier made accused. He has highlighted the sentence i.e. “Any person not being accused”, It was 5 argued that against the petitioners the learned Magistrate, at the stage of cognizance differing with the police report, had taken cognizance of the offence. The petitioners were discharged under section 239 of the Code of Criminal Procedure. Accordingly, the petitioners were accused in the case and, as such, the learned Magistrate was having no jurisdiction under section 319 of the Code of Criminal Procedure to summon the petitioners. Learned counsel for the petitioners has also referred to judgments of Hon‟ble the Supreme Court reported in A.I.R. 1990 S.C. 2158 (Sohan Lal and Others Vs. State of Rajasthan) as well as a judgment reported in 2007(4) P.L.J.R.(SC)144 (Saraba Reddy Vs. Puthur Rami Reddy and Anr.). While referring to those judgments, learned counsel for the petitioners submits that the point has already been set at rest by the apex court that in a case where accused was discharged cannot be summoned under section 319 of the Code of Criminal Procedure. 8. Besides questioning the basic jurisdiction of the learned Sub.Divisional Judicial Magistrate in respect of passing of the impugned order, learned counsel for the petitioners has submitted that even Hon‟ble the Supreme Court time without number has held that power under section 319 of the Code of Criminal Procedure should be exercised sparingly and in exceptional cases. As a matter of course, this power is not required to be exercised. Learned counsel for the petitioners has relied upon a recent judgment of Hon‟ble the Supreme Court reported in 2009(1) P.L.J.R.(SC)167 (Lal Suraj @ Suraj Singh and Anr. Vs. State of Jharkhand). This court is also of the opinion that power under section 319 of the Code of Criminal Procedure should not be exercised as a matter of course, but it should be exercised in 6 exceptional circumstance in view of facts and circumstances of a particular case. 9. Mr. A.M.P. Mehta learned Additional Public Prosecutor appearing on behalf of the State, has vehemently opposed the prayer of the petitioners. He has referred to a judgment of Hon‟ble the Supreme Court reported in A.I.R.1983 S.C. 595 ( Dr.S.S. Khanna Vs. Chief Secretary, Patna & Others.). It was submitted that while summoning the petitioners the learned Magistrate has committed no error. 10. Besides hearing learned counsel for the parties, I have also perused the materials available on the record. So far as exercise of power under section 319 of the Code of Criminal Procedure is concerned, it is not in dispute that time without number it has been reiterated that this power is to be exercised sparingly. In the present case F.I.R. was instituted regarding trivial offence and police after investigation did not submit charge-sheet against the petitioners. However, the learned Magistrate took cognizance of offences differing with the police report even against the petitioners and thereafter the petitioners were made accused in the case. Fact remains that they were discharged at the stage of section 239 of the Code of Criminal Procedure. Accordingly, the petitioners were accused in the present case and since they were accused, the learned Magistrate was not required to exercise power under section 319 of the Code of Criminal Procedure for summoning the petitioners. The order passed by the learned Magistrate was contrary to the basic principle of section 319 of the Code of Criminal Procedure. The position has already been clarified by the apex Court in the cases of Sohan Lal (supra) and 7 Patna High Court The 15th July,2010. Md.S./NAFR Saraba Reddy (supra). Accordingly, on this ground itself the impugned order is liable to be set aside. Besides, this court is also satisfied that in this case the learned Magistrate should have refrained to exercise power under section 319 of the Code of Criminal Procedure which is to be exercised sparingly particularly in view of nature of allegation. 11. Accordingly, this court is satisfied that it is a fit case for exercising inherent jurisdiction in favour of the petitioners and, as such, the impugned order dated 21/22.4.2000 passed by the Sub. Divisional Judicial Magistrate, Birpur in G.R. No.268 of 1997 arising out of Birpur P.S. Case No. 73 of 1997 is hereby set aside and the petition stands allowed. (Rakesh Kumar,J.)