IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.27520 of 2008 1. MOSHAHEB SHARMA SON OF SRI FUDAN SHARMA 2. ABHIMANYU SHARMA 3. RAMESH SHARMA, BOTH SONS OF SRI MOSAHEB SHARMA ALL RESIDENTS OF VILLAGE SATHUA, P.S.- GHOSI IN THE DISTRICT OF JEHANABAD. Versus 1. THE STATE OF BIHAR 2. UDAI SHARMA, S/O- LATE SUCHIT SHARMA, R/O- VILLAGE SATHUA, P.S.- GHOSI IN THE DISTRICT OF JEHANABAD. For the petitioners : Mr. Dinu Kumar, Advocate For the O.P. : Mr. Rakesh Kumar Chauhan, Advocate For the State : Mr. Jharkhandi Upadhyay, APP ----------- 5 09.08.2010 Heard both sides. Present application survives only in respect to petitioner no. 1 (Moshaheb Sharma) and petitioner no. 3 (Ramesh Sharma). They are aggrieved by order dated 19.5.2008 passed by learned Trial Judge in Sessions Trial No. 78 of 2006 (State versus Rama Nand Sharma). By this order, learned Trial Court, on a consideration of the evidence of three P.Ws, have come to a conclusion that there is sufficient evidence coming from their mouth about participation of the accused persons (petitioners herein) in the offence and accordingly, invoking jurisdiction conferred on it under Section 319 of the Code of Criminal Procedure (hereinafter referred to as the Code), summons has been directed to be issued calling upon them to appear in the case and face the trial. Brief backgrounds of the case need to be set out. Uday Sharma (P.W. 1) lodged an F.I.R. on 17.8.2003 (Ghosi P.S. 2 case no. 236 of 2003) under diverse sections of Indian Penal Code including Sections 302, 34 and 120B of Indian Penal Code against eight named accused persons including the petitioners. According to the F.I.R., victim (brother of the informant) was taken out from the house by one of the co-accused(s) namely Birendra Sharma. As they were proceeding towards the house of co-accused Abhimanyu Sharma, it has been alleged that one of the co-acuseds fired at his brother which however, did not hit him. Thereafter co-accuseds Abhimanyu Sharma and Birendra Sharma caught hold of the victim and thereafter co-acccused Abhimanyu Sharma whipped out his country made pistol and fired on the neck of the victim from a close range. When the informant tried to intervene and save his brother, it is alleged that other accused persons who were present at the place of occurrence from before armed with different weapons including the petitioners chased him and as a result whereof, he had to escape from the place of occurrence. The Investigating Officer took up investigation and upon conclusion thereof, submitted charge-sheet only against four named accused persons. Petitioners herein besides others were not sent up for trial. Cognizance was taken accordingly and the case was committed to the Court of Sessions. At the trial, three witnesses in the shape of P.W. 1 Uday Sharma (informant) P.W. 2 Sahvindar Sharma (nephew of the deceased) and P.W. 3 (a co-villager) were examined. On a consideration of their deposition, learned 3 Trial Court has come to the conclusion that there is sufficient evidence implicating the other accused persons (not facing the trial ) and as such the court invoked its jurisdiction conferred under Section 319 of the Code. Learned counsel for the petitioner, while assailing the sustainability of the order, submits that the learned Trial Court has not disclosed his satisfaction based on materials on record that sufficient evidence is available on record to proceed with other accused persons not facing the trial. According to him, the Trial Court ought to have disclosed the nature of evidence that has surfaced during the deposition of these three witnesses. He placed reliance on a judgment reported in 2003 (4) P.L.J.R. 81 in the case of Tarkeshwar Singh versus State of Bihar (paragraphs nos. 14 and 15). It is next contended that the invocation of jurisdiction under Section 319 of the Code is to be made in sparing manner. Learned Trial Court ought to have considered the quality of the evidence before invoking Section 319 of the Code. He relied on a judgment reported in (2009 ) 2 S.C.C. 696 in the case of Lal Suraj versus State of Jharkhand (paragraph nos. 11, 13, 15 and 16). On the other hand learned counsel appearing on behalf of Opposite party and learned counsel representing the State supported the impugned order. Learned counsel for the opposite party no. 2 submits that subsequent to the evidence of P.Ws 1, 2 and 3, two more witnesses were examined in the case 4 and they all have stated in their respective depositions about the complicity of the petitioners herein in the said crime. I have considered the submissions advanced on behalf of the parties. A bare perusal of the order would show that learned Trial Court on a perusal of the evidence of P.Ws. 1, 2 and 3 have recorded a finding that their evidence reflect availability of sufficient evidence on record justifying invocation of Section 319 of the Code. Learned counsel for the petitioners, referring to the depositions of P.Ws 1, 2 and 3 (Annexures- 3, 4 and 5) has submitted that the informant Uday Sharma (P.W. 1) in his deposition has alleged about the presence of the petitioners at the place of occurrence assigning certain roles to them but he had not stated about the presence of P.Ws 2 and 3 at the place of occurrence during the relevant time. It is thus contended that if the evidence of P.W. 1 is to be accepted then P.Ws 2 and 3 obviously becomes hear say witness. Learned counsel, however, admits that P.Ws 2 and 3 have also stated about the presence of the petitioners herein at the place of occurrence armed with different weapons and assigning some role to them. He, however, submitted that there is material contradictions in their evidence if the same is collated with the evidence of P.W. 1. It is thus contended that the quality of the evidence surfacing during trial is not such which would justify invocation of Section 319 of the Code. In my view, the said submission of learned counsel for the petitioners does not hold good in view of the fact that at the stage 5 of invoking jurisdiction under Section 319 of the Code, the Court has to verify from the evidence available on record with regard to sufficiency of evidence justifying invocation of jurisdiction. Whether the evidence is such which will in all likelihood result in conviction is not the relevant consideration at the stage of invoking jurisdiction under Section 319 of the Code. This Court may at the cost of repetition note that learned Trial Court in the impugned order itself has referred to the deposition of 03 witnesses whose evidence reflected presence of sufficient material on record justifying invocation of the jurisdiction. In view of my discussions made above, I do not find any merit in this application. The application is dismissed. pkj ( Kishore K. Mandal, J. )