1 Criminal Writ Petition No.897/2009 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO.897 OF 2009 1. Shaikh Hasina Shaikh Sikandar, Age 25 years, Occ. Service, R/o Paithan Rural Hospital, Paithan, District Aurangabad 2. Shaikh Alluddin Shaikh Manak, Age 35 years, Occ. Teacher, R/o Tirthpuri, Taluka Ambad, District Jalona ... PETITIONERS VERSUS 1. State of Maharashtra, through Police Station, Manwat, District Parbhani (Copy served on P.P., High Court of Bombay, Bench at Aurangabad. 2. Sk. Atiya Sk. Muniroddin, Age 27 years, Occ. Nil, R/o Main Road, Pathri, District Parbhani. ... RESPONDENTS ..... Shri S.S. Rathi, Advocate for petitioners Shri K.M. Suryawanshi, A.P.P. for respondent No.1. Mrs. Zainab M. Surti, Advocate for respondent No.2. ..... CORAM : K.U. CHANDIWAL, J. DATE : 15th March, 2011. ORAL JUDGMENT : 1. Heard. Rule. Rule made returnable forthwith. With the consent of learned counsel for the parties, taken up for final hearing 2 Criminal Writ Petition No.897/2009 at admission stage. 2. A complaint was lodged by Smt. Shaikh Atia against Shaikh Yusuf for infraction of Sections 376, 417 of the Indian Penal Code. The present petitioners are inter se husband and wife. Petitioner No.1 is sister of original accused Shaikh Yusuf. In the complaint, it is informed, no allegations are made against both the petitioners. After investigation, charge sheet was filed against said Yusuf for the offence punishable under Sections 376, 417 of the Indian Penal Code. The matter was committed to the learned Sessions Judge at Parbhani, charges were framed against Shaikh Yusuf. 3. During the course of commencement of evidence, an application in terms of Section 319 Cr.P.C. below Exhibit 8 was moved in the said Sessions trial No.58/2009. Same is questioned in the Writ. 4. Before the learned Sessions Judge, the application was moved annexed with affidavit, informing that one Shaikh Allauddin Shaikh Manak has executed a bond for the witness accused Syaikh Yusuf. Name of sister (petitioner) was referred in the F.I.R. The learned prosecutor pointed out that there was primary evidence against the present petitioners and, consequently, the application. 3 Criminal Writ Petition No.897/2009 5. The learned Judge browsed the affidavit, which has been signed by these petitioners and the learned Sessions Judge found that petitioner No.1 is referred in the F.I.R. having threatened and abused the prosecutrix while the stamp paper is signed, written by Shaikh Allauddin Shaikh Manak. Consequently, learned Judge desired to call/ summon these two persons/ petitioners to face trial as accused. 6. Mr. Rathi, the learned counsel for the petitioners submits, the learned Judge could not do so in the light of settled position of law as no evidence was adduced and the learned Judge should have waited till completion of evidence. For this purpose, he relied on the judgment in the matter of Mohd. Shafi Vs. Mohd. Rafiq and Anr. (2007 CRI. L.J. 3198). The Hon’ble Lordships have observed that “Court must arrive at satisfaction that there exists possibility that accused so summoned in all likelihood would be convicted. Such satisfaction can be arrived at upon completion of cross-examination of witness.” However, in paras 11 and 12, the Hon’ble Lordships have observed as under : “11. The trial Judge, is noticed by us, in terms of Section 319 of the Code of Criminal Procedure was required to arrive at his satisfaction. If he thought that the matter should receive his due consideration only after the cross-examination of the witnesses is over, no exception thereto could be taken far less at 4 Criminal Writ Petition No.897/2009 the instance of a witness and when the State was not aggrieved by the same. 12. 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.” 7 The position as to what evidence means was explained by the Hon’ble Lordships of Apex Court in the matter of Rakesh Vs. State of Haryana (AIR 2001 SC 2521), wherein in paras 10 and 13, the Hon’ble Lordships have onserved, “Once the Sessions Court records a statement of the witness it would be part of the evidence.” The Hon’ble Lordships have observed, “In our view, this decision (referring to Joginder Singh Vs. State of Punjab (1979) 1 SCC 345 : 1979 Cri.L.J. 333), nowhere lays down that before a person is added as accused in a Session trial case, he should be permitted to cross-examine the witnesses whose evidence is recorded. On the contrary, it lays down that once the Sessions court is seized of the matter as a result of the committal order against some accused the power under Section 319(1) can come into play and Court can add any person, not an accused before it, as an accused and direct him to be tried along with other accused. The Court has further observed that the 5 Criminal Writ Petition No.897/2009 very purpose of enacting Section 319(1) clearly shows that even persons who have been dropped by the police during investigation but against whom evidence showing their involvement in the offence comes before the criminal Court are included in the expression “any person not being the accused.” 8. The learned A.P.P. invites my attention to the judgment of the Apex Court in the matter of Suman Vs. State of Rajasthan & Anr. (2010 ALL MR (Cri) 316 (S.C.). The Hon’ble Lordships of Apex Court held that, “If specific allegations are made in the F.I.R., the provisions of Section 319 of the Criminal Procedure Code can be taken into consideration.” The Hon’ble Lordships have referred to the term “evidence collected/ produced in the course of any enquiry into or trial of an offence”. 9. Survey of above facts illustrate, the exercise of discretion by the learned Sessions Judge in terms of Section 319 of the Criminal Procedure Code was based on the available material in the form of affidavit/ agreement and he rightly exercised the discretion by allowing application Exhibit 8. Writ Petition lacks merits, dismissed. Rule discharged. K.U. CHANDIWAL JUDGE