IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.5604 of 2006 SUBHASH YADAV Versus STATE OF BIHAR & ANR ----------- For the petitioner : M/s Y.V.Giri, Sr. Advocate and Raju Giri, Advocate For the State : Mr. Jharkhandi Upadhaya, A.P.P. For O.P. No. 2 : None O R D E R The petitioner, one of the F.I.R. named accused of Vijaipur P.S. Case No. 41 of 1991 giving rise to Sessions Trial No. 47 of 2000, who was not chargesheeted and was discharged by order dated 15.7.1998 of the learned Chief Judicial Magistrate, Gopalgunj, while accepting the charge sheet, is now aggrieved by order dated 1.10.2005 passed by the learned 2nd Additional Sessions judge, Gopalgunj, in Sessions Trial No. 47 of 2000 whereunder the petitioner along with five others have been summoned under section 319 Cr.P.C. to face trial along with those already sent up. On the basis of a written report submitted by one Chattu Rajbhar in respect of the kidnapping and murder of his brother taking place on 12.6.1991, Vijaipur P.S. Case No. 41 of 1991 was registered under sections 364, 302, 201/34 I.P.C. and 27 Arms Act against the nine persons named therein including the petitioner. It appears that the police after due investigation did not find the complicity of the petitioner in the crime and in - 2 - the charge sheet submitted on 21.2.1992 the petitioner along with five others were shown as not sent up and even the learned Chief Judicial Magistrate accepted the charge sheet on 15.7.1998 in toto and without much ado. However, the controversy arose when after a lapse of thirteen years on the basis of a petition filed by the prosecution under section 319 Cr.P.C. on 27.9.2005, the learned Additional Sessions Judge, Gopalgunj, in seisin of the Sessions Trail arising out of Vijaipur P.S. case No. 41 of 1991 summoned the petitioner by his order dated 1.10.2005 to face the trial along with those already sent up and facing the trial. Assailing the impugned order dated 1.10.2005, it was sought to be submitted that although the power to summon an additional accused under section 319 Cr.P.C. is an extraordinary power conferred on the Court and requires to be used sparingly only if compelling reasons exist therefor and a judicial exercise is called for, yet in the instant case, the learned Judge without judicially appreciating the fact that there was no fresh evidence which had come on record, mechanically summoned the petitioner. In this context it was pointed out that for summoning the petitioner reliance was placed on the deposition of P.Ws. 1, 2, 4, 5 and 6 of whom P.Ws. 1, 2, 4 and 5 in their statement under section 161 Cr.P.C. had not named the petitioner and only P.W. 6, the informant, had named the petitioner without alleging any specific accusation against him. - 3 - It is by now well settled that the word “evidence” in section 319 Cr.P.C. means evidence on record and the power under the section cannot be exercised with reference to police papers. It appears from the impugned order that the learned Court has recorded a finding: “Perused the petition and evidence of examined witnesses referred above. From perusal of the evidence of all the examined witnesses it is found that the names of Subash Yadav, Awadhesh Yadav, Birendra Singh, Rajendra Yadav, Rambhajan Yadav, Ishahak Mian and Awadh Bihari Singh have come in their evidence showing their involvement / complicity in the commission of offence punishable under section 302/149 I.P.C. and 201 I.P.C. From the evidence of all these witnesses taking together it is found that along with Amala Pathak (accused facing trial) the aforesaid persons having common object forcibly took the deceased acrossed the river, they all surrounded the deceased and the deceased was killed by gun shot injury.” In the light of the specific finding of the Court that complicity of the petitioner in the crime has come to the forefront from the deposition of the witnesses, I am unable to accept the contention of the learned counsel for the petitioner. So far as the submissions regarding delay in summoning the petitioner is concerned, the law remains settled in the case of Sk. Jamlu Quazi vs. State of Bihar reported in 1997(2) PLJR 811, that the Court would not be helpless on account of delay to summon such persons to face trial if material showing his complicity in the crime has come to light - 4 - after evidence is led. So far as the third contention of the learned counsel for the petitioner is concerned the same has been dealt in specific terms by Supreme Court in the case of Yogendra Singh vs. The State of Punjab (AIR 1979 SC 339) and the same may be quoted with due respect: “As regards the contention that the phrase “any person not being the accused” occurring in S. 319 excludes from its operation an accused who has been released by the police under Sec. 169 of the Code and has been shown in column No. 2 of the charge-sheet, the contention has merely to be stated to be rejected. The said expression clearly covers any person who is not being tried already by the Court and the very purpose of enacting such a provision like Sec. 319(1) Cleary shows that even 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.” Having given my anxious thoughts to the matters in issue, I am of the considered opinion that there is no merit in this application and the same be dismissed. The Patna High Court The 16th May, 2008 Sanjay / A.F.R. (Abhijit Sinha, J.)