IN THE HIGH COURT OF JUDICATURE AT PATNA CR. REV. No.1059 of 2010 1. YOGENDRA RAI 2. MAHADIA DEVI ---- PETITIONERS. Versus 1. STATE OF BIHAR 2. RAJ MANGAL BHAGAT --- OPP. PARTIES. For the petitioners : Mr. Mahendra Thakur, Advocate. For the State : Mr. Binod Kumar no. 3, APP ----------- 02. 09.02.2011 Heard both sides. Petitioners question the legality/propriety of order dated 07.06.2010, passed by learned Additional Sessions Judge, Fast Track Court no. IV, Vaishali at Hajipur in Sessions Trial . No. 566 of 2003, whereby the application preferred by the prosecution under Section 319 of the Code of Criminal Procedure (hereinafter referred to as the ‘Code’) seeking summoning of the petitioners herein to stand trial along with other accuseds already facing the trial has been considered and allowed. A complaint was lodged by one Raj Mangal Bhagat on 02.06.2003 alleging therein that in the night of 30/31.05.2003, the petitioners herein along with one Ramesh Das abducted/kidnapped his minor daughter namely, Neelam Kumari. As per the prosecution case, in course of search, one Munia Devi disclosed that she had seen the accused persons including the petitioners herein taking away aforesaid Neelam Kumari in a tempo. Having learnt about the same, a complaint was promptly lodged which was transmitted to the police for institution of F.I.R. and investigation. Accordingly, an F.I.R. 2 was lodged under Sections 366A and 120B of the Penal Code. In course of investigation, the police did not find sufficient materials against the petitioners herein and as such a final report/charge sheet was submitted under Sections 366A, 120B and 376 of the Penal Code in which only co-accused Ramesh Das was sent up for trial. The two petitioners herein were not sent up for trial. The matter was thereafter committed to the Court of Session where the trial commenced. In course of trial 06 witnesses were examined including PWs 3 (mother of the victim), PW 4 (Munia Devi), PW5 (Neelam Kumari victim) and PW6 (father of the victim) and informant of the case. In course of their depositions PWs 3,4,5 and 6 are said to have supported the prosecution case as projected in the complaint/F.I.R.. Learned trial Court, on a consideration of the materials on record, found that there is sufficient materials on record justifying summoning of the proposed accuseds (petitioners) and, accordingly, impugned order was passed. Learned counsel for the petitioners while assailing the order submits that victim Neelam Kumari, in course of investigation, was produced before the Magistrate for recording her statement under Section 164 of the Code. Said statement is on record as (Annexure-3). In her such statement, the victim has not whispered anything about the two petitioners herein. It would appear from perusal of her statement made under Section 164 of the Code that it was co- accused Ramesh Das who was instrumental in kidnapping/abducting the victim and thereafter 3 subjecting her to rape. It is next submitted that PWs 1 and 2 who are the neighbours of the informant have not supported the prosecution case in so far as they implicate the petitioners in the crime. Referring to the F.I.R., it is submitted that animosity between the petitioner no.1 and Ram Pravesh Rai is admitted. It is submitted that the informant is an employee/labour of aforesaid Ram Pravesh Rai with whom petitioner no.1 has animosity. On these submissions it is contended that the materials on record are not convincing enough justifying summoning of the petitioners by invocation of Section 319 of the Code. Learned A.P.P. appearing on behalf of the State, on the other hand, submits that the Court while exercising jurisdiction under Section 319 of the Code has to confine its consideration only to the materials brought on record in course of trial. It is highlighted that from the materials on record including the F.I.R. the medical assessment and the statement of the girl recorded under Section 164 of the Code, it would appear that girl is/was minor. It is next contended that the evidence of PWs 3, 4, 5 and 6 definitely implicate the petitioners in the crime. On these submissions the impugned order has been supported. I have considered the submissions advanced on behalf of the parties. It is settled law beyond cavil that even on grave suspicion based on materials on record a person can be summoned and tried. Learned trial Court on a perusal of the evidence of PWs 3,4,5 and 6 has found that there is adequate 4 materials on record justifying the summoning of the petitioners under Section 319 of the Code. The depositions of PWs are on record. This Court, on perusal of the evidence of PWs 3, 4, 5 and 6, find that there is adequate evidence on record incriminating the petitioners in the crime. Considering the scope of the jurisdiction exercised by the learned Court below and the materials on record, this Court is not inclined to interfere therewith. The application is dismissed. When the order was dictated, learned counsel for the petitioners submitted that petitioners would now face the trial. It is submitted that there is already arrest warrant issued against them. Referring an order dated passed by this Court in Cr. Rev. no. 68 of 2005 ( Agni Ram @ Sahadur Ram vs. State of Bihar) it is submitted that appropriate observation/direction be made that if the petitioners appear before the Court below pursuant to the impugned order within a particular time frame then they may be released on bail. This Court only observes that if the petitioners appear before the Court below pursuant to the impugned order within 04weeks from today and apply for bail, learned Court below shall consider and dispose of the same in accordance with law keeping in view the fact that they were initially not sent up by the police. Sym/ ( Kishore K. Mandal, J.)