IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.46934 of 2005 MD.SAJID HUSSAIN @ MD.SAJEED SON OF MD. KHALIQUE, RESIDENT OF VILLAGE-BAKARPUR, P.S. MUFASSIL, DISTRICT MUNGER. Versus THE STATE OF BIHAR & ANR. ----------- For the Petitioner: Mr.Yogesh Chandra Verma, Sr. Advocate Dr. Md. Raisul Haque, Advocate Mr.Rakesh Kumar, Advocate For the State Mrs. Indul Bala Pandey, APP 10 31.3.2010 Heard counsel for the petitioner and the State. The petitioner seeks quashing of the order dated 24.11.2005, passed in Sessions Case No.95 of 2003, by the Additional District and Sessions Judge, F.T.C.V, Munger by which he has issued summons to the petitioner under section 319 Cr.P.C. to face trial. One Md.Suleman, a Choukidar gave his fardbeyan before the police on 19.12.1999, stating therein that one Md. Manir was married to one Nuresha Begum daughter of Md. Halim. After some years, Md. Manir contracted another marriage with one woman namely Disco. After some time, some differences arose between his two wives. Md. Manir kept his second wife Disco in I.T.C. quarter and tortured her in league with his first wife. The differences between the two wives further aggravated when Md. Manir received a sum of Rs.30,000/- from the I.T.C. Company. Again on this issue, Md.Manir took side of his first wife. On 19.2.1999, the informant learnt that Md. Manir in league with his first wife Nuresha Begum, son Azharuddin and other relatives have killed his second wife and had hide her dead body. The petitioner states that neither he is named in the F.I.R. 2 nor charge sheet has been submitted against him and the trial commenced against others. Only after examination of seven witnesses, a petition 31.8.2004 was filed on behalf of the prosecution under section 319 Cr.P.C. and a rejoinder to the aforesaid petition was filed by the accused Khalique on 2.8.2008 stating therein that the State has filed the aforesaid petition belatedly with purpose and delaying the trial. He further submits that there is no sufficient material for allowing the petition under section 319 Cr.P.C. However, by order dated 24.11.2005, the learned Additional District and Sessions Judge, F.T.C. V, Munger directed for issuance of summons to the petitioner to face trial under sections 302/34, 364/34 and 201/34 of the Penal Code. Being aggrieved by the aforesaid order dated 24.11.2005, the petitioner filed the instant application. On 19.9.2006 notice was issued to Opposite party no.2. On 22.9.2008 this court observed that the application will proceed against the State of Bihar only, as the same stood dismissed against Opposite party no.2 for non-compliance of earlier order. An I.A. No.420 of 2010 has been filed for quashing the subsequent order dated 27.9.2008 passed by the trial court whereby it has directed for issuance of summons to the petitioner under section 319 Cr.P.C. on petition of one of the witnesses Md. Kamruddin dated 21.8.2005. Learned counsel for the petitioner submits that the trial court by order dated 19.12.2006 has kept the issuance of summons in abeyance 3 till the police files further final form or charge sheet after completing the investigation. Being aggrieved by the aforesaid order dated 19.12.2006, one Md. Kamruddin had preferred a Criminal Revision No.390 of 2007 before this court. This court by order dated 17.5.2007 after noticing the fact that as the earlier order dated 24.11.2005 was passed not on the petition of Md.Kamruddin rather it was filed by the State and on the aforesaid technicality, the revision was held to be not maintainable. However, liberty was granted to Md. Kamruddin to raise his grievance before the appropriate forum. Thereafter, Md. Kamruddin in pursuance of the liberty granted by this court by order dated 17.5.2007, filed a petition under section 319 Cr.P.C. for issuance of summons against the petitioner. The learned trial court by order dated 27.9.2008 allowed the petition filed by Md. Kamruddin and directed for issuance of summons against the petitioner under section 319 Cr. The trial court observed that the order passed on 24.11.2005 has not been reviewed by order passed on 19.12.2006, and only the operation of the order dated 24.12.2005 was stayed till the submission of any supplementary final form in regard to the petitioner Md. Sajid. In this context, the learned trial court called for a report from the Chief Judicial Magistrate, Munger whether any supplementary charge sheet has been filed against Md.Sajid or not. The Chief Judicial Magistrate reported that neither any supplementary charge sheet has been submitted against the petitioner nor investigation is pending against any person in connection with Mufassil P.S. Case No.26 of 1999. 4 The petitioner further submits that the trial court has neither given any reason nor referred to any material evidence while summoning him under section 319 Cr.P.C. vide his order dated 27.9.2008. The order dated 19.12.2006 recalling the order dated 24.11.2005 was held not maintainable by this court in Cr.Revision No.390 of 2007 and as such the impugned order dated 27.9.2008 annexed with I.A.No.420 of 2010 amounts to recalling/reviewing the earlier order dated 24.11.2005. The power under section 319 Cr.P.C. should be exercised very sparingly and with caution. The Apex Court has held that the power under section 319 Cr.P.C. should not be exercised merely because some evidence has come on record. He submits that if conviction seems probable then only power under section 319 Cr.P.C. should be exercised. In support of his contention, he relied upon decisions of the Hon’ble Apex Court in the case of Kailash Vs State of Rajasthan & anr, reported in 2008(4) P.L.J.R.246(SC); Krishnappa Vs State of Karnataka, reported in 2005(1) PLJR 50(SC); Mohd. Shafi Vs Mohd. Rafiq & anr, reported in 2007(3) PLJR (SC)55 particularly paragraph 13. He also relied upon judgments rendered by the learned Single Judge of this court in the case of Sabrun Khatoon @ Sabrun & Ors Vs State of Bihar, reported in 2002(2) PLJR 739; Mrigendra Prasad Singh Vs State of Bihar & Ors, reported in 2006(1)PLJR 502. Section 319 Cr.P.C. relates to power to proceed against other persons appearing to be guilty of offence. The object and scope of the provision has come time without number for consideration before the 5 Courts. It would be relevant to refer to the decisions cited by learned counsel for the petitioner. I would first refer to the case of Kailash Vs State of Rajasthan & anr (supra). The Hon’ble Apex Court while examining the scope of provisions held in para 9 as follows: “9…………It is not, therefore, that merely because some witnesses have mentioned the name of such person or that there is some material against that person, the discretion under Section 319 Cr.P.C would be used by the court. This is apart from the fact that such person against whom such discretion is used, should be a person who could be tried together with the accused against whom the trial is already going on. This Court has, time and again, declared that the discretion under section 319 Cr.P.C. has to be exercised very sparingly and with caution and only when the concerned court is satisfied that some offence has been committed by such person. This power has to be essentially exercised only on the basis of the evidence. It could, therefore, be used only after the legal evidence comes on record and from that evidence it appears that the concerned person has committed an offence. The words “it appears” are not to be read lightly. In that the court would have to be circumspect while exercising this power and would have to apply the caution which the language of the section demands”. Similar has been the view of Hon’ble Apex Court in the case of Krishnappa Vs State of Karnataka (supra). The Apex Court in the case of Mohd. Shafi Vs Mohd. Rafiq & anr (supra) held that before exercising discretionary jurisdiction under 6 section 319 court must arrive at the satisfaction that there exists a possibility that the accused so summoned in all likelihood would be convicted. The Apex Court further observed that such satisfaction can be arrived at inter alia upon completion of cross-examination of the said witness. I find it appropriate to quote the relevant portion of the judgment contained in paragraph 13 thereof, which runs as under: “13. From the decisions of this Court, as noticed above, it is evident that before a court exercises its discretionary jurisdiction in terms of Section 319 of the Code of Criminal Procedure, it must arrive at the satisfaction that there exists a possibility that the accused so summoned is in all likelihood would be convicted. Such satisfaction can be arrived at inter alia upon completion of the cross-examination of the said witness. For the said purpose, the court concerned may also like to consider other evidence. We are, therefore, of the view that the High Court has committed an error in passing the impugned judgment. It is accordingly set aside. The appeal is allowed.” This court in the case of Mrigendra Prasad Singh Vs The State of Bihar & Ors (supra) has held that power to summon an accused is an extraordinary power conferred on the court and requires to be used sparingly only if compelling reasons exists to summon persons, not facing trial. This court further observed that judicial exercise is called for keeping in mind the entire conspectus of the case including the stage at which the trial has reached. Such power cannot be exercised merely on the ground that some evidence has come on record implicating the person sought to be arraigned as an accused but 7 the entire conspectus of the case has to be seen. In the backdrop of the scope and object held by the Apex Court, now I propose to examine the validity of the impugned order dated 24.11.2005 passed by the trial court in exercise of power under section 319 Cr.P.C. It would appear from the materials on record that the main order passed by the trial court issuing summons to the accused petitioner under section 319 Cr.P.C. is order dated 24.11.2005. The petitioner has brought on record the order dated 19.12.2006, from which it would appear that the order dated 24.11.2005 issuing summons has been kept in abeyance, till conclusion of pending investigation in respect of the petitioner. I am not in agreement with the submission of the petitioner that the order dated 19.12.2006 in fact reversed or reviewed the order dated 24.11.2005 on merit. It appears from perusal of the order dated 19.12.2006 that as the investigation was pending against some of the accused persons including the petitioner, the operation of the order dated 24.11.2005 was kept in abeyance. It would be appropriate to quote the relevant extract of the order dated 19.12.2006 which runs as under: “……..For the present the order passed by the Court of Addl. District and Sessions Judge V, Munger to summon the accused may be kept in abeyance and it would not be proper to issue summons against Md.Sajeed”. Against the aforesaid order dated 19.12.2006, one Md. Kamruddin preferred a Criminal Revision No.390 of 2007 before this 8 court and this court by order dated 17..5.2007 has found the revision application not maintainable on certain technicality. However, liberty was granted to him to raise his grievance before appropriate forum. The concluding paragraph of the order dated 17.5.2007 passed in Cr.Revision No.390 of 2007 by this court is quoted herein below. “The petitioner has challenged the order in which he was not the petitioner before the court below. Only on this technicality, this revision application is not maintainable. Accordingly, this revision application is dismissed as not maintainable. However, the petitioner shall be at liberty to raise his grievance before appropriate forum.” Pursuant to the liberty granted by this court, Md. Kamruddin filed a petition under section 319 Cr.P.C. for issuance of summons to the petitioner to face trial. The trial court by the impugned order dated 27.9.2008 observed that the order passed on 24.11.2005 has not been reviewed by order passed on 19.12.2006 and only the operation of the order dated 24.12.2005 was stayed till the submission of any supplementary final form in regard to the petitioner Md. Sajid. In this context, the learned trial court called for a report from the Chief Judicial Magistrate, Munger stating therein that whether any supplementary charge sheet has been filed against Md.Sajid or not, who in turn has stated that neither supplementary charge sheet has been submitted against the petitioner nor investigation is pending against any person in connection with Mufassil P.S. Case No.26 of 1999. The order dated 24.11.2005 was kept in abeyance in view of 9 the submissions that the investigation was pending against some of the accused persons including the petitioner. Subsequently having transpired that no investigation is pending, the trial court directed for issuance of summons against the petitioner. In this view of the matter, it cannot be said that the trial court did not have jurisdiction to pass the impugned order. Now the main issue is whether there was sufficient material before the trial court to have summoned the petitioner to face trial. Counsel for the petitioner has brought on record the evidence of P.W.8, who is son of the deceased. He stated that the photograph relied by prosecution, which was shown to him, was not of his deceased mother. He submits that such belated statements made in course of trial for first time, cannot lead to conviction in view of settled laws. The main order dated 24.11.2005 issuing summons to the petitioner was originally challenged by the petitioner in the main application. It would appear from the F.I.R. that the informant Chaukidar alleged that the accused Md. Manir along with his first wife and other relatives had killed his second wife and hid her dead body. The trial court in the impugned order has specifically discussed the depositions of six witnesses which prima facie brings the involvement of the petitioner Md. Sajid Hussain on the fore. P.W. 1 in paragraph 1 has stated that Sajeed and Abid were also present, where other accused were doing bad work with the wife of Maneer. P.W.2 in paragraph 1 has also stated that he saw that Md. Khalid, Md.Sajeed, 10 KHAN Md.Suleman, Md.Abid, Md. Maneer were talking each other and saying that botheration has ended. P.W. 3 in paragraph 1 has stated that he saw on the alleged date, time and place Md. Khalid, Md.Sajeed, Md.Suleman and Md. Abid were assaulting the deceased by knife. Further P.W.6 in paragraph 1 stated that on the alleged date, time and place he saw and heard that woman was saying that “SAJEED BHAIYA MERA JAAN BACHA DIJIYA HUM APKI BAHAN SE KABHI JHAGRA NAHI KARAYANGEY. The trial court further observed that from perusal of the record and the charge sheet bearing 56 of 2001 it appears that it has been mentioned that the name of Md. Sajeed had come in progress report of Police Inspector. In this view of the matter, the trial court found that there is sufficient material to proceed against the petitioner. For the reasons stated above, I do not find any reason to interfere with the impugned order. It is accordingly dismissed. Before parting with this case, this court states that nothing in this order should be construed as making observation on the merit of the case and the trial court would proceed on well established principles that prosecution has to prove its case beyond all reasonable doubts on unflinching evidence. (Samarendra Pratap Singh,J)