IN THE HIGH COURT OF JUDICATURE AT PATNA CR. REV. No.738 of 2008 1. YASHODA DEVI W/O- MAHAKANT JHA 2. BEBI KUMARI, D/O- DASHARATH KANT JHA, BOTH RESIDENTS OF VILLAGE- BHATAULIA, P.S.- BATHANAHA, DIST. SITAMARHI. Versus 1. THE STATE OF BIHAR 2. LALAN JHA, S/O- BACHHA JHA, R/O- VILLAGE- BHATAULIA, P.S.- BATHANAHA, DISTRICT- SITAMARHI For the petitioners : Mr. Mahendra Thakur, Advocate For the State : Mr. Jharkhandi Upadhyay, APP 4 26.11.2010 Heard Learned counsel for the petitioners and the State. Petitioners assail the order dated 15.7.2008 passed by learned Addl. Sessions Judge-cum-F.T.C.-III, Sitamarhi in Tr. No. 203/2002 whereby on a consideration of the evidence on record produced by the prosecution, petitioners herein have been summoned under Section 319 of the Code of Criminal Procedure (hereinafter to be referred as the Code) to face the trial. An F.I.R. was lodged in the year 2001 alleging therein that there was an altercation on the question of stacking fire woods between the defence and the prosecution. In the meantime, co-accused Mahakant Jha and Subodh Kant Jha began to assault the informant by fists and slaps when the other brother of the informant arrived to save. On this co-accused Mahakant Jha and his wife (petitioner no. 1) exhorted their daughter Babi Kumari and grandson Ranjan Kumar to bring and sprinkle acid upon them whereby Babi Kumari and Ranjan - 2 - Kumar brought acid and sprinkled the same on to the informant and his uncle as a result whereof, they sustained severe burn injuries. The investigation proceeded whereafter charge-sheet was submitted against other accused persons but not the petitioners. Cognizance was taken under Sections 307 and 326 of the Indian Penal Code besides minor sections against only 03 accused persons who were proceeded against. Since the petitioners herein were not sent up, they were not proceeded against by the Magistrate. The case was committed to the Court of Sessions whereafter charges were framed and the trial commenced. At the trial 08 (eight) P.Ws were examined. Thereafter on 29.3.2007, an application was filed by the prosecution under Section 319 of the Code for summoning the petitioners herein on the ground that the evidence adduced at the trial reflect sufficient evidence indicating complicity of the petitioners (proposed accuseds) in the crime. Learned Trial Court perused the evidence on record and found that altogether 08 prosecution witnesses were examined out of which P.W. 8 had not supported the prosecution case. Out of remaining 07 (seven) P.Ws, at least 06 (six) of them have consistently deposed to the effect that the petitioners (proposed accuseds) had a role to play in the commission of crime. Having informed itself of the powers and limitations of Section 319 of the Code, the Trial Court found that the evidence available on record were sufficient to summon the petitioners to face the trial. This order - 3 - has been impugned in the present application. Learned counsel for the petitioners submits that the petitioner no. 2 was fairly young at the time of F.I.R. It has been submitted that there has been inordinate delay in approaching the Court for the relief as prayed for in the application filed by the prosecution. It is the stand of the petitioners that this is a relevant consideration. It is stated that cognizance was taken on 18.4.2002 whereafter trial was taken up in which P.W. 1 was examined on 10.8.2004 and P.W. 6 was examined on 11.8.2006. The prosecution waited for several months before filing the present application on 29.3.2007 which remained pending for about few months and thereafter the impugned order was passed. It is next contended that there is no fresh material before the Court. Identical allegations were levelled in the F.I.R. and as such the Court ought to have rejected the application. He relies on a judgment of this Court in the case of Sambhu Singh versus State of Bihar since reported in 2000 (2) P.L.J.R. 784. Learned A.P.P., on the other hand, supported the order impugned. It is the contention of the A.P.P. that learned Trial Court has taken care to incorporate the relevant deposition of the P.Ws. in order to come to a reasonable conclusion that the evidence available on record do indicate complicity of the petitioners in the offence and as such there is/was sufficient and convincing material/evidence on record. - 4 - I have considered the submissions made on behalf of the parties. Power conferred under Section 319 of the Code is meant to do justice in a particular case. There is no quarrel that such power has to be exercised sparingly with all due care and caution. The Court is not required to act mechanically. There is no legal duty cast upon the Court to summon a person (proposed accused) to face the trial until and unless there is/are convincing evidence on record. Learned Court below in the order impugned has set out in detail the relevant evidence of P.Ws. 1, 2, 4, 5 and 7 in order to demonstrate that there is sufficient and convincing evidence on record. In my view, having regard to the materials on record and the contents of the impugned order, it cannot be said that the learned Trial Court has exercised its jurisdiction in a mechanical manner. There is no merit in this application. It is accordingly dismissed. This observation of mine made in the order is for the purpose of disposal of the present application. The Court below shall not be prejudiced in any manner while considering the bail applications, if any, filed on behalf of the petitioners. pkj (Kishore K. Mandal, J)