IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.41639 of 2010 DR.LAL BABU SINGH & ANR Versus STATE OF BIHAR & ANR ----------- 2. 19.01.2011. Heard Sri Mahesh Narayan Parbat, learned counsel appearing for the petitioners and Sri Ganesh Prasad Singh, learned A.P.P. for the State. The grievance of the petitioners is that merely after recording the statements of four witnesses in Sessions Trial No.129 of 2010 and that too the examination-in-chief part of the witnesses, the court, i.e., Additional Sessions Judge-IX, Chapra proceeded to summon the petitioners under Section 319 of the Cr.P.C. to stand trial along with the accused who is already facing trial in that particular case by passing an order to that effect on 03.07.2010. It was contended by Sri Parbat, learned counsel appearing for the petitioners, that the court was acting in haste and was passing an order prematuredly, because it ought to have allowed some more meaningful evidence to come on record so as to considering that there could be genuine necessity of summoning the additional accused, like the two petitioners by virtue of 2 its extraordinary powers under Section 319 Cr.P.C. It was contended that initially, the police had submitted a report in which the petitioners were not sent up and while the other had been sent up for trial, but the informant and his witnesses have deposed falsely and maliciously for producing evidence without any substantial reasons. The provision of 319 Cr.P.C., if considered, may indicate that during the course of trial, if it appears to the court, from evidence, that any person not being the accused, had committed any offence for which such person could be tried together with the accused, the court may proceed against such person for offence which appears to have been committed by him. This provision in extraordinary in nature inasmuch as by its very provision, it waves the passing of an order of cognizance and summoning as is ordinarily required to be done by virtue of the provisions of Section 190 of the Cr.P.C. Sub- section 4(b) of this particular provision indicates that the case has to proceed under Section 319 Cr.P.C. against such a person who had not been an accused before the court, as if cognizance order had already been passed against 3 him. This could probably indicate as to why the Supreme Court deciding the case in AIR 1983 SC 67 Municipal Corporation of Delhi Vrs. Ram Kishan Rohtagi & Ors was pointing out that it is an extraordinary provision which should be resorted to very rarely and sparingly. But when evidence comes against any person, it was pointed out in the same judgement, whose prosecution had earlier been quashed even by the High Court under Section 482 Cr.P.C. then the court may not have any option left to it than to summon him for putting on trial along with the accused who has already been on trial by acting Section 319 Cr.P.C. I have dilated on the scope of the provision merely to point out as to what could be the ambit of exercising the jurisdiction by a court of law under Section 319 Cr.P.C. in a case in which the evidence indicates that any person who is not an accused also appears committing an offence. The learned counsel was fervently appealing to my conscience by submitting that this court should at least consider one aspect of the matter that the witnesses were not put to proper cross-examination or even initial cross- examination so as to treat their evidence as 4 “evidence” as appears in the provision rather it was simply acting upon the examination-in-chief of Pws to pass the summoning order under Section 319 Cr.P.C. Evidence in examination-in-chief has also been treated on some occasion and for certain purposes as the evidence in the case. This is the reason that some times the court in order to save its own rigors of carrying out a trial may cut short its proceedings as regards that under Section 319 Cr.P.C. and may consider the examination-in-chief part of the evidence of a witness as the same has been recorded by a Judge in course of a judicial proceedings on oath and in presence of the accused, and, then may proceed to pass an order as has been done in the present case. What I further want to point out is that there is difference when one considers the provisions of Section 227, 228 and 319 of the Cr.P.C. while proceeding under Section 227 of the Cr.P.C., the court of Sessions has simply to find out by considering the materials before it „sufficient grounds for proceedings‟ against the accused. In case, there is no sufficient ground to proceed, then an order of discharge has to follow at the stage of Section 227. When the Court had entered into the stage of Section 228 5 Cr.P.C., then the consideration is a bit higher in degree at that particular stage of the hearing in a Sessions cases. The court has to find out from materials placed before it as to whether the accused appears to have committed an offence, which was exclusively triable by the court of Sessions. I have very often pointed out that Section 228 is the provision which creates or takes away the jurisdiction of the court of Sessions to try a particular offence. If it comes to a conclusion that the materials were not such as to constituting an offence which could be exclusively triable by it then it does not have a jurisdiction to further proceed in the matter and it has simply to pass the case over to the Chief Judicial Magistrate or any other competent Magistrate for trial. So far as the stage of section 319 Cr.P.C. is concerned, here the degree of finding as regards the commission of the offence has to be recorded and that is of a class where the evidence must indicate that the offence has been committed by the person who was sought to be summoned under Section 319 of the Cr.P.C. This could probably indicate the distinction among the three stages of the Sessions trial as indicated above. 6 It was not at all necessary for me to go into such details as regards the scope and ambit of the three provisions which are main provisions applicable to three different stages of a Sessions trial, but considering the anxiety of counsel who stands to defend his clients in the court of law and his seriousness to challenge the order as Sri Parbat categorized it, I had to go into those details so as to bringing out the distinctions and differences in the jurisdiction of a Judge proceedings under three different stages as appearing under law. The learned trial Judge while passing his order dated 3.7.2010 above noted Sessions Trial, I find, did not appear falling in any impropriety so as to legetimizing a finding that it was abuse of the process of the court. The order appears perfectly within the four corners of Section 319 of the Cr.P.C. The petition is of no merit and the same is dismissed as such. Brajesh Kr./AFR ( Dharnidhar Jha,J.)