CRIMINAL MISCELLANEOUS No.30595 OF 2000 In the matter of an application under Section 482 of the Code of Criminal Procedure ------------- 1. Usha Devi , Wife of Shri Mahendra Prasad Singh 2. Devta Devi, wife of Shri Mato Singh 3. Annapurna Devi, Wife of Shri Sudama Singh All residents of Village- Tilakpur, P.S. Sultanganj, District- Bhagalpur -------------- Petitioners Versus THE STATE OF BIHAR ----------- Opp.Parties. ------------ For the petitioners: Sri S.K.Giri, Advocate For the State: Sri Mritunjay Kumar “Nirala”, A.P.P. ---------------- P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR Rakesh Kumar, J. Three petitioners, while invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, have prayed for quashing of an order dated 14.9.2000 passed by the learned 5th Addl.Sessions Judge, Bhagalpur in Sessions Trial No.603 of 1996, arising out of Sultanganj P.S. Case No.90 of 1996. By the said order, the learned trial court, while exercising power under Section 319 of the Code of Criminal Procedure, has summoned the petitioners to face trial with other accused persons. 2. Short fact of the case is that on the basis of fardbeyan of one Harkhit Singh, an F.I.R. vide Sultanganj P.S. Case No.90 of 1996 was registered for the offences under Sections 147,148,149,337,427,302 of the Indian Penal Coded and 27 of the Arms Act against accused persons including the petitioners. After investigating the case, police submitted 2 chargesheet against other accused persons. However, the petitioners were not forwarded by the police. 3. After the case was committed and witnesses were examined, a petition was filed on behalf of the prosecution for summoning the petitioners for facing trial with other accused persons. The learned Addl. Sessions Judge after hearing the parties by its order dated 14.9.2000 has summoned the petitioners for facing trial. 4. Aggrieved with the order dated 14.9.2000 the petitioners approached this Court by filing the present petition. 5. Sri S.K.Giri, learned counsel appearing on behalf of the petitioners, while challenging the order passed by the learned Addl. Sessions Judge, has argued that the learned Addl. Sessions Judge has passed the order without any material as well as contrary to the provisions contained in the Code of Criminal Procedure as well as law laid down by the Hon’ble Supreme Court in number of cases. It was submitted that after the order of charge, the informant had filed revision petition, which was subsequently withdrawn. Even after the order of commitment, the informant filed revision that too was rejected. It was further submitted that from time to time, petitions were filed either by the prosecution or by the informant for summoning these petitioners, but all the petitions were rejected and now by the impugned order, the learned Sessions Judge has summoned the petitioners to face trial with other accused persons. 6. Sri Giri , learned counsel for the petitioners submits that it is true that when power of summoning a person, who is not accused there , in Section 319 of the Code of Criminal Procedure ,this power is to be 3 exercised in exceptional cases and not as matter of course. It was further submitted that for exercising this power, the Court is to be satisfied as to whether materials/evidence are sufficient for conviction of the case or not only, then power under Section 319 of the Code of Criminal Procedure is to be exercised . Learned counsel for the petitioner has firstly referred to a Judgment of the Hon’ble Supreme Court reported in 2005 (1) PLJR 50 (SC); Krishnappa Vs.State of Karnatka. He has referred to paragraphs 6 and 9 of the said Judgment , which are as follows: “6. It has been repeatedly held that the power to summon an accused is an extraordinary power conferred on the Court and should be used very sparingly and only if compelling reasons exist for taking cognizance against the other person against whom action has not been taken.” “9.In Michael Machado and Anr. Vs. Central Bureau of Investigation and Anr.,(2003)3 SCC 262, construing the words “ the Court may proceed against such person” in Section 319 Cr.P.C., this Court held that the power is discretionary and should be exercised only to achieve criminal justice and that the Court should not turn against another person whenever it comes across evidence connecting that other person also with the offence. This Court further held that a judicial exercise is called for, keeping a conspectus of the case, including the stage at which the trial has proceeded already and the quantum of evidence collected till then, and also the amount of time which the Court had spent for collecting such evidence. The Court,while examining an application under Section 319 Cr.P.C., has also to bear in mind that there is no compelling duty on the Court to proceed against other persons. In nutshell, it means that for exercise of discretion under Section 319 Cr.P.C., all relevant factors, including the one noticed above, have to be kept in view and an order is not required to be made mechanically merely on the ground that some evidence had 4 come on record implicating the person sought to be added as an accused.” 7. Learned counsel for the petitioners has further referred to a Judgment of Hon’ble Supreme Court reported in 2008(4) PLJR 246(SC); Kailash Vs. State of Rajashthan & Anr. . Learned counsel has referred to paragraph 9 of the said Judgment, which is as follows: “9. The powers under Section 319 Cr.P.C. to proceed against any person who is not the accused are couched in the following words: “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 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 cognizance of the offence upon which the inquiry or trial was commenced. A glance at these provisions would suggest that during 5 the trial it has to appear from the evidence that a person not being an accused has committed any offence for which such person could be tried together with the accused who are also being tried. The key words in this Section are “it appears from the evidence”…….. “any person”….. “has committed any offence”. It is not, therefore, that merely because some witnesses have mentioned the name of such person or that there is some material against that person, the discretion under Section 319 Cr.P.C. would be used by the court. This is apart from the fact that such person, against whom such discretion is used, should be a person, who could be tried together with the accused against whom the trial is already going on. This Court has, time and again, declared that the discretion under Section 319 Cr.P.C. has to be exercised very sparingly and with caution and only when the concerned court is satisfied that some offence has been committed by such person. This power has to be essentially exercised only on the basis of the evidence. It could, therefore, be used only after the legal evidence comes on record and from that evidence it appears that the concerned person has committed an offence. The words “it appears” are not to be read lightly. In that the court would have to be circumspect while exercising this power and would have to apply the caution which the language of the Section demands.” 8. Similarly, learned counsel for the petitioners has referred to a Judgment of the Hon’ble Supreme Court reported in 2007 (3) PLJR 55(SC); Mohd. Shafi Vs. Mohd. Rafiq & Anr. . He has referred to paragraph 13 of the Judgment , which is as follows: “13. From the decisions of this Court, as noticed above, it is evident that before a court exercises its discretionary jurisdiction in terms of Section 319 of the Code of Criminal Procedure, it must arrive at the satisfaction that there exists a possibility that the accused so summoned in all likelihood would be convicted. Such satisfaction can be arrived at inter alia upon completion of the cross-examination of the said witness. For the 6 said purpose, the court concerned may also like to consider other evidence. We are, therefore, of the view that the High Court has committed an error in passing the impugned judgment. It is accordingly set aside. The appeal is allowed.” 9. Sri Giri, learned counsel for the petitioners has also submitted that since repeatedly petitions filed under Section 319 of the Code of Criminal Procedure were rejected by the same court, the learned Addl. Sessions Judge was not authorized to review its earlier order by way of summoning the petitioners under Sections 319 of the Code of Criminal Procedure. 10. On the basis of law laid down by the Hon’ble Supreme Court, learned counsel for the petitioners has argued that the order dated 14.9.2000 passed by the learned 5th Addl.Sessions Judge is liable to be set aside. 11. Sri Mritunjay Kumar “Nirala”, learned Addl.Public Prosecutor appearing on behalf of the State has opposed the prayer of the petitioners. 12. Besides hearing learned counsel for the parties, I have perused the materials available on record. From the impugned order, i.e. order dated 14.9.2000, it is evident that before commencement of the trial, meaning thereby that before evidence had commenced in the present case, petitions were filed by both the informant and the prosecution for summoning the petitioners under Section 319 of the Code of Criminal Procedure, which was earlier rejected. However, after examination of two witnesses when the prosecution felt that evidence was already brought on record indicating involvement of the petitioners, a petition was filed under 7 Section 319 of the Code of Criminal Procedure for summoning the petitioners and thereafter the learned Sessions Judge after examining the materials on record and hearing both the parties has passed the impugned order. Paragraph-4 of the order indicates that P.Ws.1 and 2 had eloquently stated regarding active participation of the petitioners in the crime along with other accused persons. Learned Addl.Sessions Judge by assigning a detailed reason and after discussing the materials on record as well as argument advanced by the parties has passed the impugned order. Prima facie, the Court is satisfied that while passing the order, the learned Addl.Sessions Judge has committed no error. So far as the question raised by the learned counsel for the petitioners regarding repeatedly rejection of petitions filed under Section 319 of the Code of Criminal Procedure is concerned, the same has already been dealt with by the learned Addl. Sessions Judge in paragraph 8 of the order ,which is as follows: “8 On perusal of the record I find that it is true that the informant had filed the criminal Revision Application against the order of cognizance and commitment which had been withdrawn by them. I also find that earlier similar petition had been filed by the informant and the prosecution and both were dismissed, however, I find that while dismissing the petition filed by the prosecution by order dated 3.2.98 the court had held as under: In the above circumstance, I think it proper that in course of trial after framing charge the Court will see and if the Court will find evidence against the above persons necessary order will be passed regarding summoning them as accused and is not the proper stage of summoning the above persons as accused and the above two orders passed by the Court are sufficient to show reasons for the same. As such the above petition stands rejected.” 13. So far as the question of law, which has been raised by the 8 learned counsel for the petitioners and laid down by the Hon’ble Supreme Court ,as indicated above, there is no dispute, but at the same time it may be indicated that the petitioners were F.I.R. named accused in a case where young son of the informant was killed in the occurrence and there is no technical error in the impugned order and, as such, keeping in view the fact that the learned Addl.Sessions Judge was satisfied on the basis of the evidence of P.Ws. 1 and 2 . The learned Sessions Judge has rightly passed the impugned order. 14. In view of the observation made by the learned trial court itself I do not find that there is any force in the arguments advanced by the learned counsel for the petitioners. 15. Accordingly, I do not find any error in the impugned order and the petition stands rejected. 16. In view of the rejection of this petition, interim order of stay dated 6.12.2000 stands automatically vacated. 17. Keeping in view the fact that the matter is old one, the court below is directed to expedite the case and conclude the same without granting unnecessary adjournment. Patna High Court,Patna Dated : the 28th July,2010 Nawal Kishore Singh/ N.A.F.R. ( Rakesh Kumar, J )