IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.42207 of 2007 JAWAHAR PRASAD YADAV S/O LATE BINDESHWARI YADAV R/O VILL-BARIYAHI, P.S. BANGAON, DIST. SAHARSA. --- PETITIONER Versus 1. STATE OF BIHAR 2. SIKANDER YADAV S/O GHURAN YADAV, R/O VILL. BARIYAHI, P.S. BANGAON, DIST. SAHARSA. --OPP.PARTIES. ----------- 05 17.08.2010 Petitioner is aggrieved by the order dated 22.08.2007, passed by learned trial Court (Additional Sessions Judge Fast Track Court VI, Saharsa) in Sessions Trial no. 164 of 2004/ 250 of 2004 ( State vs. Bhumi Yadav & ors.), whereby learned Court has invoked its jurisdiction conferred under Section 319 of the Code of Criminal Procedure ( hereinafter referred to as the „Code‟) and directed for issuance of non bailable warrant of arrest against the petitioner. Relevant facts giving rise to the present case may first be noticed. In respect of an occurrence that had taken place on 20.10.2003 an F.I.R. was lodged on the same day against 15 named accused persons, including the petitioner herein. As per allegation the deceased was surrounded and attacked by a group of 15 to 20 persons. It is alleged that two of them including the petitioner fired at the deceased as a result whereof he dropped dead. Lodging of the F.I.R. commenced investigation in course whereof, the Investigating Officer found that an occurrence had taken place in which the deceased was done to death by a group of accuseds including those named in the F.I.R.. The charge sheet 2 was accordingly submitted against 13 named accused persons. So far as petitioner is concerned, it was found that he was admitted in the hospital during the relevant time and date of occurrence. The Investigating Officer, therefore, accepted his plea of alibi and did not send him up for trial. Filing of charge sheet gave rise to order taking cognizance followed by the commitment and framing of charge against the 13 accused persons so sent up by the Investigating Officer. At the trial 06 prosecution witnesses were examined. It is admitted position that at least five of them supported the prosecution case as spelt out in the F.I.R. which assigned specific role to the petitioner and, in fact, termed him as one of the main assailants. An application was filed on 01.05.2007 by the Counsel representing the informant for invocation of jurisdiction conferred under Section 319 of the Code. Learned trial Court, on a consideration of the evidence so brought on record during trial, came to the conclusion that there is more than sufficient evidence on record justifying summoning of the petitioner. Accordingly the jurisdiction was invoked and the non bailable warrant of arrest was issued. Learned counsel for the petitioner submits that the application (Annexure-2) was not filed and moved by the learned A.P.P. conducting the trial. It is thus contended that the invocation of jurisdiction at the behest of the informant was contrary to law. He relies on the provisions contained under Section 301 of the Code. It is also his contention that the petitioner has been maliciously named in the F.I.R. in order to feed fat the grudge 3 which was prevailing from before between the parties. Learned counsel appearing on behalf of the opposite party no.2 as well as the State, however, supported the impugned order. It is contended that PWs 1, 2, 3, 4 and 6 are eye witnesses who have consistently supported the prosecution case which implicate the petitioner. It is submitted that going by the letter and spirit of Section 319 of the Code it is evident that the Court even suo motu can invoke jurisdiction if the Court is satisfied from the evidence available on record that there is/are sufficient evidence to proceed against the person not facing the trial. I have considered the submissions advanced on behalf of the parties. Section 319 of the Code reads as under:- “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 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 the 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 4 cognizance of the offence upon which the inquiry or trial was commenced.” A bare look at the provision would show that it has been couched in the widest manner. The invocation of jurisdiction is not dependent upon filing of any application on behalf of the prosecutor or the informant. The purpose of Section 319 is that nobody should escape the trial against whom there is/are sufficient evidence on record indicating his/their participation in the offence. Section 301 of the Code reads as under:- “301. Appearance by Public Prosecutors.- (1) The Public Prosecutor or Assistant Public Prosecutor in charge of a case may appear and plead without any written authority before any Court in which that case is under inquiry, trial or appeal. (2) if in any such case any private person instructs a pleader to prosecute any person in any Court, the Public Prosecutor or Assistant Public Prosecutor in charge of the case shall conduct the prosecution, and the pleader so instructed shall act therein under the directions of the Public Prosecutor or Assistant Public Prosecutor, and may, with the permission of the Court, submit written arguments after the evidence is closed in the case.” This Section 301 of the Code is placed under Chapter XXIV which heads as under:- GENERAL PROVISIONS AS TO INQUIRIES AND TRIALS. Section 301(2) states that the general control over the proceeding will be of the public prosecutor. It is found from the record that an application was filed on behalf of the prosecutor in the present case. The said application is Annexure-3. A bare perusal of the application indicates that he raised only a technical 5 objection. It is the case of the prosecutor in the said application that the Court should await till the examination of the Investigating Officer of the case. The objection was that the application filed on behalf of the informant was premature. In view of my discussions above, I am not satisfied that the learned Court has acted within its jurisdiction which did not call for any interference. There is no merit in this application. It is, accordingly, dismissed. Sym ( Kishore K. Mandal, J.)