IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.41500 of 2008 1. Parmanand Jayaswal 2. Sudhir Prasad Singh ----------------- Petitioners Versus 1. State Of Bihar 2. Ratan Purvey --------------- Opposite Parties ---------- 3. 11-11-2011 This is an application for quashing the order dated 14.7.2006 passed by Sri R.K.Singh, Judicial Magistrate, 1st Class, Rosera, Samastipur in C.R. 235 of 2004, T.R. 109 of 2008 by which he arrayed the petitioners as accused persons in this case and they have been put on trial along with other accused persons under section 319 of the Cr.P.C. Heard counsel for the parties. Brief fact of the Complaint Case is that complainant and accused persons are sons of late Ramotar Purbey who had five sons. For accused no.1 it is said that he fraudulently succeeded to get a gift deed executed by late Ramotar Purbey in favour of his wife (accused no.2) in conspiracy with petitioners and one Awadhesh Lal Karn (accused no.5). After examination of complainant on solemn affirmation and his witnesses in enquiry cognizance was taken in the case against 2 accused nos. 1 and 2 only against whom summons were issued, trial commenced, witnesses examined in the case before charge. In that course a petition was filed on behalf of complainant-opposite party no.2 on 27.4.2005 under section 319 Cr.P.C. before the trial court. Same was opposed on behalf of defence but petition filed on behalf of complainant- opposite party no.2 is allowed by order dated 27.4.2005 arraying petitioners along with one Awadhesh Lal Karn as accused in the case and summons are issued. It is made clear that accused no.1 Shambhunath Purbey and accused no.5 Awadhesh Lal Karn are dead now. Submission advanced by counsel appearing on behalf of petitioners is that under section 319 persons “not being accused in the case” can only be summoned while in instant case petitioners were named in the complaint petition, in full-fledged inquiry no liability could be fixed upon them after considering the statement of complainant-opposite party no.2 and his witnesses examined in course of enquiry. His further submission is that once they (petitioners) are made accused in complaint petition it would amount that they 3 were accused in the case and not coming in the expression „not being the accused‟. Section 319 Cr.P.C. runs as follows: “319. Power to proceed against other persons appearing to be guilty of offence.-(1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed.” It is admitted to the parties that the only persons “not being the accused” can be summoned under section 319 Cr.P.C. Further admission is that till submission of charge sheet no person can be said accused in Police case, controversy is in cases filed on complainant petition. In Complaint Case as appeared in instant case, case was made over to the concerned Magistrate for inquiry under section 192 Cr.P.C. arraying petitioners also accused but no summons or warrant was issued against these petitioners and section 319 Cr.P.C. is clear enough that person or persons against whom relief is sought for proceeding their trial with accused facing trial, in inquiry or 4 trial should not be accused, so there appears difference in between the cases filed as Police Case and cases on complaint. In complaint cases if some one is made accused in complaint petition and on inquiry as in the instant case no summons is issued “not being the accused” comes to an end. This view finds support from the cases reported in AIR 1990 Supreme Court 2158 (Sohan Lal & Ors. Vs State of Rajasthan) and 2004(1) PCCR 21 (Rama Devi and anr. vs. The State of Bihar and anr.). In clear words it comes that petitioners were made accused against whom inquiry was conducted and no summons was issued amounts equivalent to their discharge, so they cannot be summoned under section 319 Cr.P.C. Thus, the application for quashing is allowed and the impugned order dated 14.7.2006 passed in C.R.235 of 2004, T.R.109 of 2008 is hereby quashed. ( Mandhata Singh, J.) AI/ AFR