CRIMINAL MISCELLANEOUS No.5768 OF 2001 -------- In the matter of an application under section 482 of the Code of Criminal Procedure. ------ LAL MANI DEVI WIFE OF LATE SHYAM NANDAN SINGH RESIDENT OF VILLAGE SILAUNJA,P.S.BELAGANJ,DISTT.GAYA ……. …….. PETITIONER Versus 1.THE STATE OF BIHAR 2. RAJESHWARI PRASAD SHARMA SON OF LATE GANGA SINGH, RESIDENT OF VILLAGE SILAUNJA,P.S.BELAGANJ, DISTRICT GAYA ….. …… OPP.PARTIES ------- For the petitioner: Mr.Ajay Kumar Sharma For the State : Mr.Uday Chand Prasad, A.P.P. ------ P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR Rakesh Kumar,J. The sole petitioner, while invoking inherent jurisdiction of this court under section 482 of the Code of Criminal procedure, has prayed for quashing of an order dated 15.12.2000 passed by Sri S.P.Pandey, Judicial Magistrate, Ist Class, Gaya in Case No. GR 1966 of 1991/Tr. No.798 of 2000/596 of 2001 arising out of Bela Ganj P.S. Case NO.65 of 1991. By the said order the learned Magistrate has allowed the petition filed on behalf of the prosecution under section 319 of the Code of Criminal Procedure and summoned the petitioner to face trial along with other accused persons, who were put on trial. 2. Short fact of the case is that a first information report was registered on 20.7.1991 vide Belaganj P.S. Case No.65 of 1991 for the offences under sections 323 and 325/34 of the Indian Penal Code against six accused persons including the petitioner on an allegation of commission of offence which had 2 taken place on 13.7.1991. After registering the first information report, the police investigated the case and, thereafter, charge sheet was submitted against some of the accused persons. However, the petitioner was not forwarded by the police. First charge sheet was submitted on 22.7.1991. Subsequently, as per the instruction of Dy.S.P. Headquarters a supplementary charge sheet was submitted on 8.8.1991 in which the petitioner was made an accused. After submission of the supplementary charge sheet the learned Magistrate took cognizance of the offences against the petitioner. 3. Aggrieved with the order of cognizance, the petitioner approached this court by filing Cr.Misc. No.5711 of 1992 (Annexure-2). After hearing learned counsel for the parties, this court quashed the order of cognizance against the petitioner. However, it was observed that the trial court shall, however, be at liberty to summon the petitioner as additional accused during the trial, if any material appears against her and an application under section 319 of the Cr.P.C. is filed by the prosecution. Encouraged with the said order it appears that the prosecution immediately filed a petition for summoning the petitioner which was rejected by the trial court and, thereafter, the informant of the case namely, Rajeshwari Prasad Sharma approached this court by filing a case vide Cr.Misc. No.21988 of 1999 which was rejected by this court by order dated 21.1.2000, a copy of which has been annexed as annexure-3 to the petition. Subsequently, after some of the witnesses were examined, the prosecution felt that sufficient materials were brought on record showing involvement of the 3 petitioner and, as such, a petition was filed on 13.9.2000 by the prosecution for summoning the petitioner which was allowed by the learned Magistrate by the impugned order dated 15.12.2000. 4. Aggrieved with the order dated 15.12.2000 passed by Mr. S.P.Pandey, Judicial Magistrate, Ist Class, Gaya, in Case No.GR 1966 of 1991/Tr. No.798 of 2000/596 of 2001 the petitioner approached this court by filing the present petition. This court on 29.11.2001 while issuing notice to opposite party no.2 directed that till the next date of hearing operation of the order dated 15.12.200 passed by the Judicial Magistrate, Ist Class, Gaya in Case No.GR 1966 of 1991/Tr. No.798 of 2000/596 of 2001 shall remain stayed. Subsequently, on 29.4.2003 after opposite party no.2 appeared the case was admitted for hearing and it was directed that during the pendency this application, interim order passed by this court dated 29.11.2001 shall continue. The interim order of stay is still continuing. 5. Mr.Ajay Kumar Sharma, learned counsel appearing on behalf of the petitioner, while challenging the impugned order submits that the order passed by the learned Magistrate was contrary to the provisions contained in Section 319 of the Code of Criminal Procedure. It was submitted that section 319 of the Code of Criminal procedure itself specifies that during the trial or enquiry if material is collected against a person who was not an accused only then that person can be summoned. It was submitted that in this case police had forwarded the petitioner vide supplementary charge sheet and, thereafter, the learned Magistrate 4 had already taken cognizance of the offences against this petitioner and order of cognizance was quashed by this court by annexure-2 to the petition i.e. order dated 16.5.1997 passed in Cr. Misc. No.5711 of 1992. It was submitted that since the petitioner was an accused the learned Magistrate was not empowered to summon the petitioner while exercising power under section 319 of the Code of Criminal Procedure. Besides this, it was submitted that in this case alleged occurrence had taken place long back in the year 1991 and allegation has been attributed against this petitioner in relation to commission of abetment under section 109 of the Indian Penal Code for committing offence under sections 323 and 325 of the Indian Penal Code. It was submitted that allegation was also not serious in nature and, that too, after lapse of such a long time, the learned Magistrate was not required to summon the petitioner in the case. Accordingly, it has been prayed to quash the impugned order. 6. Mr.Uday Chand Prasad, learned Addl. Public Prosecutor appearing on behalf of the State has vehemently opposed the prayer of the petitioner. Learned Addl. Public Prosecutor while referring to the observation of this court passed in Cr. Misc. No.,5711 of 1992, annexure-2 to the petition, submits that while quashing the order of cognizance this court had granted liberty to the prosecution to make a prayer for summoning the petitioner if at subsequent stage material is brought on record showing involvement of the petitioner. It was submitted that since this court had given liberty for summoning the petitioner, the 5 learned Magistrate by way of summoning the petitioner after sufficient material showing involvement of the petitioner had committed no mistake. Accordingly, it has been prayed to reject the prayer of the petitioner. 7. Besides hearing learned counsel for the parties, I have also perused the materials available on the record. It is not in dispute that in the present case occurrence had taken place about twenty years back and allegation against the petitioner was of abatement to commit offences under sections 323 and 325 of the Indian Penal Code. Time without number it has been reiterated by the Apex Court that power under section 319 of the Code of Criminal Procedure is to be exercised sparingly and not as a matter of course. It is well settled principle of law that if statute says to do a thing in a particular manner then that thing is to be done in the same manner and not in any other way. This court is of the opinion that if statutory provision contained in section 319 of the Code of Criminal Procedure itself specifies that only those persons can be summoned who are not accused, in this case there is no reason to take a contrary view. In this case it is not in dispute that the petitioner was an accused since order of cognizance was passed for offences against her. 8. In view of the facts and circumstances of the case as indicated above, this court is of the opinion that the order impugned dated 15.12.2000 passed by Mr. S.P.Pandey, Judicial Magistrate, Ist Class, Gaya in Case No. GR 1966 of 1991/Tr. No.798 of 2000/596 of 2001 is not sustainable in the eye of law. 6 Patna High Court The 19th August,2010 Md.S/NAFR Accordingly, the same is hereby set aside and the petition stands allowed. (Rakesh Kumar,J.)