IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.45394 of 2007 1. SHARANDEO PASWAN, SON OF LATE CHHEDI PASWAN. 2. BRAHMDEO PASWAN, SON OF LATE CHHEDI PASWAN. 3. PRAMOD PASWAN, SON OF LATE CHHEDI PASWAN. 4. JYOTI PASWAN, SON OF LATE CHHEDI PASWAN. 5. PRAMOD CHOUDHARY, SON OF LATE RAMDEO CHOUDHARY. 6. KUNJAY PASWAN, SON OF SHARANDEO PASWAN. 7. SAHEB PASWAN, SON OF CHANCHAL PASWAN. ALL RESIDENT OF VILLAGE-BHUMIHARA, P.S. SHAMBHUGANJ, DISTRICT-BANKA. …………………………………………………………….PETITIONERS. Versus THE STATE OF BIHAR…………………………………..OPPOSITE PARTY. ----------- For the Petitioners : M/s. Pankaj Kumar Sinha and Rajiv Kumar Singh, Advocates. For the State : Dr. Mayanand Jha, A.P.P. For the informant : Mr. Manoj Kumar Jha, Advocate. -------- O R D E R All the seven F.I.R. named accused of Shambhuganj P.S. Case No.41 of 2007 who had not been chargesheeted have filed this application for quashing of the order dated 23.7.2007 passed by the learned Presiding Judge, Fast Track Court No.IV, Banka, whereby he has summoned them under Section 319 Cr.P.C. to face the trial alongwith already arraigned accused in the resultant Sessions Trial No.1287 of 2005. Briefly stated, the prosecution story as has been culled out from the written report submitted by one Amrendra Kumar Jha, a lawyer of Civil Court, Bhagalpur, is that at about 12 in the midnight of 22.5.2004 while the informant alongwith others was sleeping on the roof, four armed persons came and pointed their muskets at him and - 2 - asked him to handover his gun failing which he would be killed. Thereafter the informant was taken to his room and accused Sharandeo Paswan took his gun and cartridges whereas accused Kunjay Paswan and Sharandeo Paswan demanded money and on refusal they extended threats and took away utensils, watch, radio and clock alongwith two V.I.P. briefcases containing Rs.60,000/- , saree, golden ornaments and other articles from the uncle of the informant who identified Brahmdeo Paswan, Pramod Paswan, Saheb Paswan and Pramod Choudhary in the crowd. It is alleged that some time ago Brahmdeo Paswan had threatened to kill and loot the informant and on account of enmity dacoity had been committed in his house where the gun alongwith other articles, as mentioned , had been looted away. It appears that police after due investigation did not submit any chargesheet against the petitioners and instead submitted a charge sheet against several other persons whose names cropped up in course of investigation and by order dated 12.4.2005 the learned Chief Judicial Magistrate, Bhagalpur, took cognizance of offence under Section 395 I.P.C. against those persons who had figured in the chargesheet, namely, Kapildeo Pawan and Fakira Paswan. Subsequently, the aforesaid Shambhuganj P.S. case was committed to the court of Sessions on 31.8.2005 where it was numbered as Sessions Trial No.1287 of 2005. It appears that in course of the trial some of the witnesses on behalf of the prosecution named these petitioners as participants in the crime of dacoity and accordingly on the basis of an application filed - 3 - by the prosecution summons were issued to the petitioners and others under Section 319 Cr.P.C. to face the trial alongwith the other accused who are already facing the trial for commission of the offences under Section 395 I.P.C. It has been submitted on behalf of the petitioners that they are innocent and have been falsely implicated in this case on account of enmity over land dispute. In this connection, it was sought to be submitted that in course of investigation the Investigating Officer and Supervising Officer had found that the petitioners and other named accused were not involved in the alleged offence and that they have been falsely implicated and on the basis thereof the Superintendent of Police by Report No.3 had directed the Investigating Officer to submit final report against them for lack of evidence. It was also submitted that none of the witnesses on behalf of the prosecution had identified the petitioners and only few of them have been named by some of the witnesses. In this connection, it was submitted that whereas P.W.1, Anandi Prasad Jha, had claimed to have identified Brahmdeo Paswan, Saheb Paswan, Pramod Paswan and Pramod Choudhary only, P.W.8, the informant, had named Sharandeo Paswan, Kunjo Paswan, Brahmdeo Paswan and Jyotish Paswan and P.Ws.1 and 2 who were allegedly present in the house at the time of the occurrence have not said anything about Sharandeo Paswan and Kunjo Paswan. On this premise, it was submitted that the learned Presiding Judge, had summoned all these petitioners mechanically without applying his mind judiciously. - 4 - The basic requirement for invoking Section 319 Cr.P.C. is that it should appear to the court from the evidence collected during trial or the inquiry that some other person who is not arraigned as an accused in that case has committed an offence for which that persons could be tried together with the accused already arraigned. For the purpose, the court must have reasonable satisfaction from the evidence already collected regarding the fact that the other person has committed an offence and that for such offence those other persons could be tried alongwith the already arraigned accused. Gainful reference may be made in this connection to the decision of Michael Machado Vs. CBI, reported in (2000)3 SCC 262. The expression “any person not being the accused” occurring in Section 319 Cr.P.C. clearly covers any person who is not being tried already by the court. However, Sub Section (1) thereof clearly shows that even the persons who have been dropped by the police during investigation but against whom evidence showing their involvement in the offence comes before the criminal court are included in the said expression. From perusal of the impugned order of the learned Presiding Judge, it appears that P.Ws.1, 5 and 8 have named some of these petitioners as active participants in the crime of dacoity. It is true that all of them have not named the petitioners. The requirement for summoning a person under Section 319 Cr.P.C. is not dependent on the number of persons who identify them in their deposition in the court. What is of essence is that they are shown to have been involved in the commission of the overt act. Even if a single person names a - 5 - person as having committed the overt act and that person had not been sent up, the court in exercise of its power under Section 319 Cr.P.C. can summon such person to face the trial alongwith the others facing the trial. In view of the discussions made above, I find no merit in this application which is accordingly dismissed. (Abhijit Sinha,J) Patna High Court, Patna. Dated: The 9th of February, 2009. Pradeep Srivastava/A.F.R.