IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Writ No.433 of 2001 ======================================================= Munni Devi, wife of Udai Narayan Shahi, resident of village-Virpur, P.S.-Kanti, District-Muzaffarpur. ....INFORMANT/PETITIONER. Versus 1. The State of Bihar. 2. Bashishth Shahi, son of Mahendra Shahi. 3. Vijay Kumar Shahi, son of Gautam Shahi. Both resident of village-Virpur, P.S.-Kanti, District-Muzaffarpur. .... .... RESPONDENTS ======================================================= PRESENT HON’BLE MR. JUSTICE ADITYA KUMAR TRIVEDI Petitioner has filed instant petition for setting aside the successive order dated 18.04.2001 passed by Sri Gajendra Prasad, the then Judicial Magistrate, 1st Class, Muzaffarpur in Trial No.170 of 2001 arising out of Kanti P.S. Case No.1/96, order dated 18.6.2001 whereby and where under Criminal Revision No.119 of 2001 has been dismissed by the learned Sessions Judge, as well as order dated 12.7.2001 passed by learned Sessions Judge in Cr. Revision No.144 of 2001. Heard learned counsel for the petitioner as well as learned counsel for the State. In spite of notice issued against O.P. No.2, they failed to appear. Petitioner Munni Devi gave her fardbeyan on 29.12.1995 disclosing therein that she has got land dispute with her co-villager and in the aforesaid background, on 27.12.1995 at about 11.30 A.M. Radha Mohan Shahi, Nawal Kishore Shahi, Brij Kishore Shahi, Ravindra Shahi, Bashsth Shahi, Raj Kishore Shahi, Vijay 2 Kumar Shahi came over the land and began to plough with tractor the land which happens to be attached in a proceeding under Section 145 of the Cr.P.C. Her husband has gone to protest over which on an order of Radha Mohan Shahi, Bashsth Shahi fired causing injury over his left hand. Raj Kishore Shahi assaulted him with lathi. When she intervened, Nawal Kishore Shahi assaulted her with Lukari on account of which her cloth and hand burnt. Brij Kishore Shahi assaulted her with farsa while Ravindra Shahi assaulted her with lathi. As a result of which she became unconscious. Then thereafter she was lifted to S.K.M.C.H. On the basis thereof Kanti P.S. Case No.1 of 1996 was registered under Section 147, 148, 149, 324, 325 of the I.P.C. and after concluding investigation charge sheet was submitted under Section 341, 323, 325, 341 of the I.P.C. against four accused Radha Mohan Shahi, Raj Kishore Shahi, Ravindra Shahi, Nawal Kishore Shahi, Brij Kishore Shahi while exonerating Bashsth Shahi, Vijay Kumar Shahi (O.P. second party) whereupon cognizance was taken and trial proceeded. In course of investigation, witnesses were examined and they have named the accused including the O.P. second party on account of which a prayer was made on behalf of prosecution, under Section 319 of the Cr.P.C. which was rejected vide order dated 18.04.2001 against which Cr. Revision No.119 of 2001 was filed and the same was rejected on 18.6.2001 in the background of principle laid down by the Hon’ble Apex Court in Rajdeo Sharma 3 Case although the learned Sessions Judge observed that all the four witnesses who have been examined during course of trial have named the opposite second party. Under mistake of fact, another revision was filed bearing no.144 of 2001 which was rejected vide order dated 12.07.2001. While assailing the successive orders passed by the learned courts below, it has been submitted on behalf of petitioner that O.P. second party are FIR named accused but the police during course of investigation exonerated for extraneous consideration. Also submitted that there is no barrier in the law while invoking the provision under Section 319 of the Cr.P.C. to summon those accused who have been exonerated by the police during course of investigation. It has also been submitted that delay is of no consequence for application of Section 319 of the Cr.P.C. At the other hand the learned Additional P.P. opposed the prayer and submitted that delay is one of the grounds which could discredit the prayer of the prosecution as the trial is of the year 2001 years have elapsed. So far legal proposition is concerned the learned Additional P.P. did not controvert. The earlier view adopted by the Hon’ble Apex Court in Rajdeo Sharma case prescribing a time limit for disposal of criminal cases has subsequently been withdrawn as is reported in 2002 Criminal Law Journal page 2547. Therefore, dismissal of prayer of petitioner by the Revisional court on this score even finding that all the four prosecution witnesses have had named the 4 O.P. second party as an accused was not proper. So application of Section 319 is concerned , I would like to refer the principal held and observed by the Hon’ble Apex Court reported in AIR 2006 SC page 1892. “11. On a careful reading of Sec. 319 of the Code as well as the aforesaid two decisions, it becomes clear that the trial court has undoubted jurisdiction to add any person not being the accused before it to face the trial along with other accused persons, if the Court is satisfied at any stage of the proceeding on the evidence adduced that the persons who have not been arrayed as accused should face the trial. It is further evident that such person even though had initially been named in the F.I.R. as an accused, but not charge-sheeted, can also be added to face the trial. The trial court can take such a step to add such persons as accused only on the basis of evidence adduced before it and not on the basis of materials available in the charge-sheet or the case diary, because such materials contained in the charge-sheet or the case diary do not constitute evidence. Of course, as evident from the decision reported in Sohan Lal and others v. State of Rajasthan, (AIR 1990 SC 2158) the position of an accused who has been discharged stands on a different footing”. “12. Power under Section 319 of the Code can be exercised by the Court suo motu or on an application by someone including accused already before it. If it is satisfied that any person other than accused had committed an offence he is to be tried together with the accused. The power is discretionary and such discretion must be exercised judicially having regard to the facts and circumstances of the case. Undisputedly, it is an extraordinary power which is conferred on the Court and should be used very sparingly and only if compelling reasons exist for taking action against a person against whom action had not been taken earlier. The word „evidence‟ in Section 319 contemplates that evidence of 5 witnesses given in Court. Under sub-section (4)(1)(b) of the aforesaid provision, it is specifically made clear that it will be presumed that newly added person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced. That would show that by virtue of sub-section (4)(1)(b) a legal fiction is created that cognizance would be presumed to have been taken so far as newly added accused is concerned”. In another decision reported in 2002 Criminal Law Journal page 2806 at para 10 it has been observed “a person summoned as accused pursuant to an order passed by a court in exercise of power conferred by Section 319 Cr.P.C. can be tried for the offence for which he is summoned even after conclusion of the trial wherein such an order of summoning was passed”. So delay as submitted by the learned Additional P.P. will not come in between. From Annexure-5A, the depositions of the witnesses it is evident that the witnesses have named the O.P. No.2 along with others as an accused who have actively participated during course of occurrence and so their complicity during course of commission of crime is apparent. That happens to be also the finding of the Revisional Court while dismissing Criminal Revision No.119 of 2001 vide order dated 18.6.2000. Thus, the successive order passed by the learned lower courts is set aside. Consequent thereupon petition is allowed. Patna High Court Dated 9th November, 2011 A.F.R. Prakash Narayan (Aditya Kumar Trivedi,J.)