IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.21389 of 2007 RINKU KUMARI d/o Sri Shyam Garain, resident of village- Lalbigha, P. S. Kashichak, District Nawada. … Petitioner. Versus 1. STATE OF BIHAR 2. Raj Mani Kumar @ Tullu son of Brahmdeo Garain village Lalbigha, P. S. Kashichak, District Nawada. … Opposite parties ----------- 7. 29.01.2010 Heard counsel for the petitioner and counsel for the State. The prayer of the petitioner in this application is to quash the order dated 29.3.2007 whereby and whereunder she has been summoned to face the trial under Section 319 of the Code of Criminal Procedure. Counsel for the petitioner has submitted that such order has been passed after 10 years of the occurrence and as such in the light of the judgment of the Apex Court in the case of Kavuluri Vivekananda Reddy and Another vs. State of A.P. and Another reported in (2005) 12 SCC 432 it cannot be sustained. Counsel for the petitioner further submits that the court below has looked into the charge-sheet and the case-diary for exercising power under Section 319 of the Code of Criminal Procedure and as such the same stands 2 vitiated in the light of judgment of Apex Court in the case of Guriya @ Tabassum Tauquir & Ors. Vs. State of Bihar & Anr., reported in 2007(4) PLJR 195 (S.C.). In the opinion of this Court, neither of the aforementioned two grounds are sufficient for quashing the impugned order inasmuch as what has been laid down as a proposition of law in the case of Kavuluri Vivekananda Reddy (Supra) is that exercise of power under Section 319 can be made only if the statement of witnesses with regard to role played by the persons summoned can be deciphered on the basis of evidence adduced in course of trial. Paragraph 6 of the said judgment being only relevant and infact also heavily relied by the learned counsel for the petitioner infact reads as follows:- “ We have perused the statements of these witnesses and find that in relation to the alleged instigation by the appellants, only general statements have been made. On the basis of the said general statements qua the appellants, it is evident that the courts below committed serious illegality in proceeding to add the appellants herein as accused in exercise of power under Section 319 of the Code. The manner of exercise of the power 3 under the said provision has been explained by this Court in Krishnappa vs. State of Karnataka wherein it has been held that it has to be kept in view that the power under Section 319 of the Code is discretionary and has to be exercised only to achieve criminal justice and that the court should not turn against another whenever it comes across evidence connecting that other person also with the offence. The provisions of Section 319 of the Code are required to be used sparingly. The summoning of the appellants after the expiry of eight years, on the facts and circumstances of the case and having regard to the nature of the depositions of the witnesses which have been examined by us, is not called for. In this view, we set aside the impugned orders and allow the criminal appeal.” From the reading of the aforementioned text of judgment it becomes clear that as in that case, the Apex Court was satisfied that no definite statement of allegation was available against the appellant in the deposition of the witness, it was held that the power under 319 Cr.P.C. could not have been exercised. The said judgment infact is not an authority as with regard to the period of time for exercising the power under Section 319 Cr.P.C. and in fact 4 the use of expression "where in the course of any enquiry into, or trial of an offence....." used under Section 319 Cr.P.C. by itself would make it clear that exercise of power under Section 319 Cr.P.C. is not circumscribed by any fixed period of time. The next judgment referred to and relied upon by the learned counsel for the petitioner in the case of Guriya’s case (supra) would not also be applicable inasmuch as there in that case the Apex Court in paragraph 13 had held that as there was nothing else except the charge-sheet or the case-diary on the basis of which the power under Section 319 had been exercised the order passed was unsustainable. Consequently, this court would find that paragraph 13 of the said judgment instead of helping the petitioner would go against him inasmuch as in the present case it has been recorded by the court below in the order itself that in course of examination of witnesses they had clearly asserted that the petitioner was armed with weapons and she had attacked on the informant causing injury on his eyes. Reference to the case-diary or charge-sheet in fact was part of the submissions of the prosecution to substantiate that the petitioner had been 5 unauthorisedly left out by the police despite their being statement against her. The court below infact in the light of the evidence adduced in course of trial had found sufficient material as is clear from a bare perusal of the impugned order itself. That being so, this court does not find any merit in this application and accordingly the same is dismissed. kanchan (Mihir Kumar Jha, J.)