IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.47330 of 2007 Md.Nizamuddin @ Md.Nizam, Son of Md. Isha, resident of village- Mohan Barhiyam, P.S.- Sakri, District- Madhubani ….. Petitioner Versus 1. The State Of Bihar ….. Opposite Party 2. Md. Jilani, Son of Md. Usman, resident of village- Mohan Barhiyam, P.S.- Sakri, District- Madhubani ….. O.P. No.2 For the Informant:- Mr. Gagandeo Yadav, Advocate ----------- 03 10.02.2009 Heard learned counsel for the petitioner, learned counsel appearing on behalf of the State and learned counsel for the informant. The petitioner is aggrieved by order dated 15.9.2007 of the Fast Track Court-I, Madhubani, summoning him in exercise of power under 319 Cr.P.C. to face trial in Sessions Trial No. 103 of 1999, arising out of Pandaul (Sakri) P.S. Case No. 233 of 1996 lodged on 28.12.1996 under Sections 147, 148, 149, 323, 324 379 and 307 of the Penal Code.. With regard to an occurrence on 28.12.1996, Pandaul (Sakri) P.S. Case No. 232 and 233 of 1996 came to be lodged by both sides as the result of a free for all fight. Learned counsel for the petitioner submitted that Pandaul (Sakri) P.S. Case No. 233 of 1996 was in retaliation to Pandaul (Sakri) P.S. Case No. 232 of 1996 lodged by none other than the father of the other charge-sheeted accused in the present - 2 - case. The present informant and other witnesses in Pandaul (Sakri) P.S. Case No. 233 of 1996 are accused therein. The charge-sheet has been submitted against them and cognizance taken against them under Sections 307, 302, 379, 323, 324, 147, 148, 149 of the Indian Penal Code. The petitioner is a witness in Pandaul (Sakri) P.S. case No. 232 of 1996 and has, therefore, been falsely implicated. The Police did not charge-sheet him. The Magistrate accepting the Final Form, not sending him up for trial, and on the basis of materials during investigation did not consider it prudent to differ with the Police report and take cognizance against the petitioner. No protest petition was filed by the prosecution for not charge-sheeting the petitioner. During investigation, no witness under Section 161 Cr.P.C. named the petitioner, much less the F.I.R. witnesses. The allegation against the petitioner is omnibus and he is only alleged to be a part of conspiracy. There were material contradictions in the depositions of the prosecution witnesses during trial with regard to the petitioner. There was no justification to summon the petitioner under 319 Cr.P.C. at this belated stage after eight years and examination of seven prosecution witnesses of whom two are not charge-sheeted witnesses. He relies on a Bench decision of this Court reported in 2007 (3) B.B.C.J, 77 (Shiv Kumar Yadav & Ors. Versus The State of Bihar and Anr.). Learned counsel for the State and the informant submit that seven prosecution witnesses during the trial have specifically - 3 - named the petitioner as a member of the assembly and attributed overt act against him also. It could, therefore, not be stated that there was no material to summon him under Section 319 Cr.P.C. The F.I.R. specifically names the petitioner along with seven others. The allegations of assault are common against all, while some additional acts are specific against a few of them. The F.I.R. concludes by stating that the entire episode is the conspiratorial brain of the child of the petitioner. Therefore, it cannot be urged at this stage that there were no materials in the original allegations against him and that he was only stated to be a conspirator. Out of seven prosecution witnesses who have deposed in the trial, five are charge-sheet witnesses whose names also find reference in the F.I.R. They have also consistently stated of the presence of the petitioner during the occurrence and that he indulged in the assault. That there may be minor differences in their statements with regard to the nature of assault by him and his conduct, is hardly of any consequence when they have confirmed his presence during the occurrence. The submission that the allegations are omnibus is hardly of any avail at this stage. The other seven accused with common allegations have been charge-sheeted. The ultimate object of a criminal trial is to bring the offenders to book. There shall be a material distinction between what has been stated before the Police during investigation and what may be stated during course of deposition in the Court. The - 4 - former is not admissible at the latter stage. At best, it may be used to confront the witness with regard to the veracity and truthfulness of his statement. These, in any event, are matters to be considered during the trial. In the facts of the present case, merely because the petitioner was not charge-sheeted or that the court below did not take cognizance against him differing with the Final Form, and no protest petition was filed or that the parties were under inimical terms with both sides filing cases against each other, to this Court, shall not be sufficient justification to hold that summoning the petitioner under 319 Cr.P.C. was not justified in the law. There is no doubt that the Courts have held that the power under 319 Cr.P.C. is to be exercised with caution. The basic requirement for invoking it has been discussed in 2000 (3) SCC 262 (Michael Machado and Another Versus Central Bureau of Investigation and Another). As discussed at paragraph 11 is quoted below:- “The basic requirements for invoking the above section is that it should appear to the Court from the evidence collected during trial or in the inquiry that some other person, who is not arraigned as an accused in that case, has committed an offence for which that person could be tried together with the accused already arraigned. It is not enough that the court entertained some doubt, from the evidence, about the involvement of another person in the offence. In other words, the court must have reasonable satisfaction from the evidence already collected regarding two aspects. First is that the other person has committed an offence. Second is that for such offence that other person could as well be tried along with the already arraigned accused.” - 5 - What is relevant is if there was material to summon for facing trial with a reasonable prospect of conviction and not a positive conclusion of conviction. The applicability of the provisions shall, therefore, depend on the facts of each case. In 2006 (10) SCC 192 (Lok Ram Versus Nihal Singh and Anr.) the Supreme Court, with regard to a person named in the F.I.R., not charge-sheeted, held that the materials in the case diary do not constitute evidence, in the following language at paragraph-10 of the judgment:- “On a careful reading of Section 319 of the Code as well as the aforesaid two decisions, it becomes clear that the trial court has undoubted jurisdiction to add any person not being the accused before it to face the trial along with the other accused persons, if the court is satisfied at any stage of the proceeding on the evidence adduced that the persons who have not been arrayed as accused should face the trial. It is further evident that such person, even though had initially been named in the FIR as an accused, but not charge-sheeted, can also be added to face the trial. The trial court can take such a step to add such persons as accused only on the basis of evidence adduced before it and not on the basis of materials available in the charge-sheet or the case diary, because such materials contained in the charge-sheet or the case diary do not constitute evidence. Of course, as evident from the decision in Sohan Lall v. State of Rajasthan, the position of an accused who has been discharged stands on a different footing.” In 2007 (7) SCC 378 (Rajendra Singh Versus State of U.P. and Anr.) the person summoned was not charge-sheeted by the Police on plea of alibi even though he was originally named in the F.I.R. When he was summoned under 319 Cr.P.C. the High Court interfered with it on the ground as noticed in paragraph 7 of the judgment of the Supreme Court as follows:- “The High Court has basically relied upon the - 6 - statements of six witnesses which had been recorded by the investigating officer under Section 161 Cr.P.C. to record a positive finding that the respondent could not have been present at the scene of commission of the crime as he was present in a meeting of Nagar Nigam at Allahabad. A statement under Section 161 Cr.P.C. is not a substantive piece of evidence. In view of the proviso to sub-section (1) of Section 162 Cr.P.C., the statement can be used only for the limited purpose of contradicting the maker thereof in the manner laid down in the said proviso. Therefore, the High Court committed a manifest error of law in relying upon wholly inadmissible evidence in recording a finding that Kapil Dev Singh could not have been present at the scene of commission of the crime.” The Apex Court recorded its conclusion at paragraph 11 as follows:- “Having considered the submissions made by learned counsel for the parties, we are of the opinion that the statements of the witnesses under Section 161 Cr.P.C. being wholly inadmissible in evidence could not at all be taken into consideration. The High Court relied upon wholly inadmissible evidence to set aside the order passed by the learned Sessions Judge. That apart, no finding on a plea of alibi can be recorded by the High Court for the first time in a petition under Section 482 Cr.P.C. As mentioned above, the burden to prove the plea of alibi lay upon the accused which he could do by leading evidence in the trial and not by filing some affidavits or statements purported to have been recorded under Section 161 CrPC. The whole procedure adopted by the High Court is clearly illegal and cannot be sustained. The other argument based upon the acquittal of co-accused Daya Singh has also no merits. The question as to whether an order passed under Section 319 CrPC would cease to be operative if the trial of the co-accused has been concluded, has been considered in Shashikant Singh V. Tarkeshwar Singh and it was held as under in para 9 of the Report: (SCC p. 743) “9. The intention of the provision here is that where in the course of any enquiry into, or trial of, an offence, it appears to the court from the evidence that any person not being the accused has committed any offence, the court may proceed against him for the offence which he appears to have committed. At that stage, the - 7 - court would consider that such a person could be tried together with the accused who is already before the court facing the trial. The safeguard provided in respect of such person is that, the proceedings right from the beginning have mandatorily to be commenced afresh and the witnesses reheard. In short, there has to be a de novo trial against him. The provision of de novo trial is mandatory. It vitally affects the rights of a person so brought before the court. It would not be sufficient to only tender the witnesses for the cross-examination of such a person. They have to be examined afresh. Fresh examination-in-Chief and not only their presentation for the purpose of the cross- examination of the newly added accused is the mandate of section 319(4). The words „could be tried together with the accused‟ in section 319(1), appear to be only directory. „Could be‟ cannot under these circumstances be held to be „must be‟. The provision cannot be interpreted to mean that since the trial in respect of a person who was before the court has concluded with the result that the newly added person cannot be tried together with the accused who was before the court when order under Section 319(1) was passed, the order would become ineffective and inoperative, nullifying the opinion earlier formed by the court on the basis of the evidence before it that the newly added person appears to have committed the offence resulting in an order for his being brought before the court.” Therefore, the mere fact that trial of co-accused Daya Singh has concluded cannot have the effect of nullifying or making the order passed by the learned Sessions Judge on 26.05.2005 as infructuous.” Continuing the discussion it was held in the relevant extract of paragraph 16 that the Court need not be satisfied that the person had committed an offence. It must only appear that he had committed the offence. From the evidence, it need only appear that “someone else” had committed an offence for invocation of Section-319 Cr.P.C. This Court can do no better - 8 - than quote following extract from paragraph-16:- “….With great respect I see no reason to describe the power as an extra-ordinary power or to confine the exercise of it only if compelling reasons exist for taking cognizance against any other person against whom action has not been taken. After all, the section only gives power to the Court to ensure that all those apparently involved in the commission of an offence are tried together and none left out. I see no reason to curtail this power of the Court to do justice to the victim and to the society. It appears to me that it is left to the judicial discretion of the court, judicially trained, to decide to proceed or not to proceed against a person in terms of Section 319 of the Code……” The conclusion of the Court at paragraph-20 of the judgment is as follows:- “The power under Section 319 of the Code is conferred on the Court to ensure that justice is done to the society by bringing to book all those guilty of an offence. One of the aims and purposes of the criminal justice system is to maintain social order. It is necessary in that context to ensure that no one who appears to be guilty escapes a proper trial in relation to that guilt. There is also a duty to render justice to the victim of the offence. It is in recognition of this that the Code has specifically conferred a power on the court to proceed against others not arrayed as accused in the circumstances set out by this Section. It is a salutary power enabling the discharge of a court‟s obligation to the society to bring to book all those guilty of a crime.” In the case of Shiv Kumar Yadav, relied upon by the petitioner a Bench of this Court was considering a challenge to a summon under 319 Cr.P.C. on the ground that the witnesses in the F.I.R. were none other than the accused in the counter case. The persons summoned had not been charge-sheeted after investigation. That to summon under 319 Cr.P.C. there must be reliable evidence. The Court relied heavily on the fact that the - 9 - witnesses deposing were accused in the counter-case. That during investigation none of the witnesses named the petitioner as having hand in the crime there appeared no chance of conviction and that there was no specific accusation against them. There was thus no valid ground or reliable evidence or compelling reason to summon them. This Court finds itself in respectful disagreement with the order in Shiv Kumar Yadav‟s case in view of the discussions as aforesaid of the Apex Court. The aspect of delay in summoning them under 319 Cr.P.C. which may necessitate a de novo trial, as urged, has been adequately considered by the court below in the penultimate paragraph of the order holding that it is not the prosecution, but the accused who are responsible for the delay and slow progress of the trial. In conclusion, this Court finds no error in the finding that there was sufficient evidence to show the participation of the petitioner in the trial assailed so as to justify summoning him for trial under 319 Cr.P.C. This Court, therefore, finds no infirmity in the order dated 15.9.2007 requiring interference. The application is dismissed. P.K. (Navin Sinha, J.)