IN THE HIGH COURT OF JUDICATURE AT PATNA CR. REV. No.489 of 2009 LAXMAN ROY SON OF PATHAK ROY, RESIDENT OF VILLAGE- CHHIHANTAR, POLICE STATION MANER, DISTRICT- PATNA. Versus 1. THE STATE OF BIHAR 2. MAHENDRA ROY, SON OF LATE DEVNANDAN ROY, RESIDENT OF VILLAGE CHHIHANTAR, POLICE STATION- MANER, DISTRICT- PATNA. For the petitioner : Mr. Onkar Nath, Advocate For the O.P. : Mr. Sunil Kumar, Advocate For the State : Mr. Jharkhandi Upadhyay, APP ----------- 2 27.07.2010 Heard both sides. Petitioner is aggrieved by the order dated 9.2.2009 passed in Sessions Trial No. 1125 of 2003 whereby learned trial court, on a consideration of the materials on record, invoked the jurisdiction conferred on it under Section 319 of the Code of Criminal Procedure (hereinafter referred to as the Code), and issued summons to the petitioner herein to stand the trial. An F.I.R. was lodged against 10 named accused persons including the petitioner herein. The allegation as per the F.I.R. is that while the informant was cutting grass at his door, the accused persons including the petitioner commanded the informant not to use the disputed land. The same was retorted whereafter some accused persons were called in followed by flashes of abuse(s) and filthy languages. It is alleged further that they assaulted the informant and others. The allegation is that the petitioner fired from his pistol causing injury to the nephew of the informant. The police on conclusion of the investigation did not 2 send up the petitioner and few other accused persons. It appears that the alibi taken by the petitioner was found substantiated. At the trial, few witnesses were examined including the informant (P.W. 4). Learned trial court from the deposition of P.W. 2 and the informant (P.W. 4) found that there is/are sufficient evidence disclosing complicity of the petitioner and accordingly the order impugned was passed. Learned counsel for the petitioner assails the impugned order on the ground that the order impugned is vitiated as learned trial court has taken into consideration the materials appearing in the police papers which was/were extraneous materials so far as invocation of Section 319 of the Code is concerned. He relies on the judgment of the Hon’ble Supreme Court in the case of Rajendra Singh versus State of U.P. reported in A.I.R. 2008 page 2788. On the contrary, learned counsel appearing on behalf of the informant supported the impugned order. I have considered the submissions advanced on behalf of the parties and perused the materials on record. Learned trial court observed as under in the order: “Heard the learned counsels of both the parties and perused the F.I.R., case diary and evidence of P.Ws 2 and 3 on record. Upon consideration, I find that from perusal of para nos. 6, 9, 10, 20 and 37 of the case diary, deposition of P.W. 2 and P.W. 3, there appears to be involvement of accused Laxman Rai s/o- Pathak Rai in the alleged offence as per the F.I.R., accused Laxman Rai is the main assailant and he fired the shot as a result of which the victim sustained injuries on his jaw. “ 3 It appears from the order impugned that the court below has referred to the evidence of the two prosecution witnesses in order to come to a conclusion that there is/are sufficient evidence on record justifying invocation of the jurisdiction. He has, however, also recorded therein that the materials reflecting from paragraph nos. 6, 9, 10, 20 and 37 of the case diary also reflect complicity of the petitioner in the crime. It is to be recalled that the petitioner had taken a plea that he was not present at the place of occurrence during the relevant time of occurrence. The Investigating Officer found substance in his alibi and accordingly he was not sent up for trial although F.I.R. did allege that the petitioner used fire arm and caused injury to the nephew of the informant. It is by now a settled law that while exercising power under Section 319 of the Code, learned court below is not supposed to refer to and rely on the materials available in the police papers which include the case diary. He has to necessarily confine himself to the materials that surfaced in course of trial. If it is found that the order is primarily anchored on the materials reflected from the police papers including the case diary, the same has to be interfered with as those materials shall be extraneous consideration. Here is the case where learned trial court has although referred to the materials in the case diary in order to consider the claim of the petitioner with respect to his alibi but it further appears that he took into consideration the evidence of the P.Ws namely P.W. 2 and 4 4 (informant) and thereby has come to a conclusion that their evidence do implicate the petitioner justifying invocation of the jurisdiction. In my view, the consideration of the court is in two separable parts. In that view of the matter, this Court is satisfied that no illegality as such has been committed by learned trial court in invocation of its jurisdiction meriting any interference. The application has no merit. It is accordingly dismissed. pkj ( Kishore K. Mandal, J. )