IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.51963 of 2007 1. KAMLA DEVI, WIFE OF DEO NANDAN PRASAD S INGH 2. BABU LAL SAHI 3. AWADHESH PRASAD BOTH SONS OF LATE KAROO YADAV ALL RESIDENT OF VILLAGE MANDIL, P.S. PARAS BIGHA, DISTRICT JEHANABAD. ------------------------------------------------------------------------------------------------ PETITIONER Versus 1. THE STATE OF BIHAR. 2. SMT. MANJU KUMARI, WIFE OF JITENDRA KUMAR POSTED AS TEACHER IN THE MIDDLE SCHOOL, LAKHWAR, P.S. GHOSHI, DISTRICT JEHANABAD. ---------------------------------------------------------------------------------------------- OPP. PARTIES ********* 7 2.12.2010 Notice was issued to opposite party no. 2 on 25.2.2008. Nobody has appeared on behalf of opposite party no. 2. This application has been filed against the order dated 30.7.2002 by which the petitioners have been noticed under Section 319 of the Code of Criminal Procedure to face proceeding under Sections 498A, 323, 506 and 307 of the Indian Penal Code and ¾ of the Dowry Prohibition Act. A First Information Report was lodged on 22.4.1999. Only petitioner no. 1 was not named as accused in the First Information Report. Later, a protest-cum-complaint petition was lodged in which all the three petitioners have been named as accused persons. 2 Learned counsel for the petitioners referring to the order impugned, submits that the only material that has come on record is that the petitioners have been named by some of the witnesses. It is submitted that in fact they have been named in the trial, without any allegation, does not indicate that a prima facie case is made out against them. Apart from the factual aspect of this case, petitioners rely upon decision of this Court in the case of Rama Devi & Anr. Vs. State of Bihar & Anr. reported in 2004 (2) PLJR 225 in which the Court has defined the expression ‘not being accused’ under Section 319 of the Code of Criminal Procedure, and held that those persons would not come within the expression ‘not being accused’ who have been named and arrayed as accused in the complaint case would go out of the purview of Section 319 of the Code of Criminal Procedure. Considering the decision in Rama Devi’s case which has considered decisions of the Supreme Court in the case of Munna Singh & Anr. Vs. State of Bihar [ (2002 (1) 3 PCCR374) ], Dr. S.S. Khanna Vs. Chief Secretary Patna & Anr. (A.I.R. 1983 S.C. 595) and Sk. Jamlu Quazi @ Md. Namaluddin & Ors. Vs. The State of Bihar & Anr. [ 1997 (2) PLJR 811 ],this court finds that the provisions of section 319 of the Code of Criminal Procedure would not be applicable. As far as the case of petitioner no.1 is concerned, the court below ought to have considered whether there was sufficient prima facie material to proceed against petitioner no.1, which the court has not done. In the result, the order impugned dated 30.7.2002, passed in G.R. No. 533 of 1999/Tr. No. 551 of 2002 is hereby quashed. This application is allowed. Sanjay ( Sheema Ali Khan, J.)