Criminal Miscellaneous No.4359 OF 1998 In the matter of an application under Section 482 of the Code of Criminal Procedure ------------- Suman Gupta ,wife of Raja Babu Gupta, resident of Mohalla-Bandar Bagicha, Police Station-Kotwali, District- Patna ---------------- Petitioner Versus The State of Bihar ---------------- Opp.Party. ------------ For the petitioner : Ms. Soni Shrivastaa, Advocate For the State : Mr. Indu Bala Pandey, A.P.P. ------------- P R E S E N T THE HON'BLE SHRI JUSTICE RAKESH KUMAR Rakesh Kumar, J The petitioner, who was proprietor of Banshi Vihar Restaurant. Frazer Road, Patna , had approached this Court against the order dated 3.3.1997 passed by the learned Judicial Magistrate, 1st Class, Patna , whereby the learned court below had allowed the petition filed under Section 319 of the Code of Criminal Procedure on behalf of the prosecution and ordered for issuance of summons to the petitioner to face the trial in the present case. 2. The occurrence had taken place in the year, 1993 and the impugned order was passed on 3.3.1997. Immediately thereafter the petitioner rushed to this Court and by the order dated 4.3.1998, while admitting the present petition, this Court directed that during the pendency of this application, the operation of the impugned order ,so far the petitioner is concerned, shall remain stayed. - 2 - 3. The short fact of this case is that on 26.11.1993, while the informant was moving on a Scooter along with his wife, a Signboard containing name of Banshi Vihar Restaurant fell down on their Scooter causing injury to the wife of the informant and thereafter an F.I.R. vide Kotwali P.S. Case No.423 of 1993 against the staff of Banshi Vihar Restaurant. After registering the case, police investigated the same and finally police submitted chargesheet against the three persons, namely, Rajendra Prasad Singh, Kamakhya Prasad Singh and Ravi Shankar Pandey. After submission of the chargesheet , the court took cognizance and all the three accused persons were put on trial . In the case four witnesses were examined in support of the prosecution. The last witness in the case was the Investigating Officer of the case, who was examined as P.W.4. After examination, he was finally discharged on 21.8.1996. It appears that after the conclusion of the arguments, the case was fixed for judgment on 27.9.1996. However, the judgment could not be delivered on the said date. Thereafter, on 28.9.1996 a petition was filed on behalf of the prosecution under Section 319 of the Code of Criminal Procedure with a prayer to summon the petitioner to face the trial as an accused in the present case. 4. Smt. Soni Srivastava, learned counsel for the petitioner challenging the impugned order, firstly submitted that there is no dispute regarding the power of the court below to summon a person as an accused under Section 319 of the Code of Criminal Procedure, but at the same time while exercising said power, it is necessary to record reasons for summoning a person as an accused at such belated stage. Learned counsel has referred to the impugned order and submitted that the court below had indicated - 3 - that on examination of evidence of witnesses, involvement of the petitioner cannot be ruled out. Learned counsel for the petitioner has further submitted that it was specific case of the prosecution that three persons were hanging signboard and during the hanging of the signboard, the same fell down and wife of the informant received injury. The informant never disclosed or never alleged that this petitioner was present at the time of place of occurrence. On the contrary, the informant had made specific averment that three persons were hanging the board. The informant had never disclosed the name of this petitioner amongst three persons. Learned counsel for the petitioner submits that the evidence of the prosecution witness was concluded on 21.8.1996 and after completion of the argument, the case was fixed for judgment on 27.9.1996. Had there been any material connecting the petitioner in the crime, the prosecution would have immediately filed petition at least before the date of Judgment. Learned counsel further submits that though the case was fixed for Judgment on 27.9.1996, it could not be delivered. The prosecution has not explained the reason for filing the said petition after the date was fixed for judgment. In this case, a petition was filed on 28.9.1996. On these grounds, learned counsel for the petitioner has submitted that the order impugned is liable to be set aside. 5. Learned counsel for the State has opposed the prayer of the petitioner .He submits that in view of Section 319 of the Code of Criminal Procedure, the court is wholly competent to summon a person to face the trial as an accused and he submits that there is no error in the order. 6. I have also examined the materials available on the record and have also perused the impugned order. The impugned order does - 4 - not indicate the reasons for summoning the petitioner. At the time of passing the order under Section 319 of the Code of Criminal Procedure that, too, in the facts and circumstances of the present case, i.e. after the date of Judgment, learned court below was required to at least discuss some of evidences connecting the petitioner in the present crime. Merely because of the fact that the petitioner was Proprietor of Banshi Vihar Restaurant, the signboard of which Restaurant had fallen on the informant, is not sufficient to extend the responsibility on the Proprietor of the said Restaurant, particularly in a criminal case. F.I.R. was lodged under Sections 337 & 338 of the Indian Penal Code and charges were also framed for the same offences. 7. In view of the facts and circumstances as mentioned herein above, I am of the view that the learned Magistrate has neither assigned any reason nor has dealt with any evidence, while allowing the petition filed on behalf of the prosecution, which was admittedly filed after the case was fixed for Judgment. The order impugned is not sustainable in the eye of law. 8. Accordingly, the order impugned is set side and petition is allowed. Patna High Court,Patna Dated: the 19th March,2010 Nawal Kishore Singh/N.A.F.R. ( Rakesh Kumar, J)