IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.37453 of 2007 1. PRABHAKAR SHARMA SON OF NARAD SHARMA 2. SUNIL SHARMA SON OF NARAD SHARMA BOTH ARE RESIDENT OF VILLAGE MADHOPUR, P.S. MAHARAJGANJ, DISTT. SIWAN. -------- PETITIONERS. Versus 1. STATE OF BIHAR 2. MR. HARE KRISHNA TIWARI SON LATE RAM PUKAR TIWARI RESIDENT OF VILLAGE MADHOPUR, P.S. AHARAJGANJ, DISTT. SIWAN. ------- OPPOSITE PARTIES. --------- For the petitioners : Mr. Ranjan Kr. Srivastava, Adv. For the opposite party : Mr. Naresh Prasad -1 Advocate For the State : Mr. Ved Prakash, A.P.P. ---------- 4. 05/02/2010 The petitioners seek quashing of the order dated 10.7.2007 passed by Fast Track Court No. I, Siwan, in Sessions Trial No. 398 of 2006 by which they have been summoned to face trial under Section 319 Cr. P.C. The case of the prosecution according to one Hare Krishna Tiwari is that on the night between 1/2. 2.2004 at 3.00A.M., one Ranjan Kumar Sharma came to the house of the Informant and called his nephew Arbind Kumar Tiwari to watch T.V. Thereafter, at about 1 o’clock he heard the sound of “chor-chor” upon which he went to the house of accused persons where he saw his nephew dead. During investigation, it transpired that in fact the deceased had tress-passed into the house of the accused persons and had attempted to commit rape upon a minor girl and on Hulla, the father of the minor and her brother got up and variously assaulted the deceased due to which he died. 2 During investigation it also transpired that the present petitioners used to live in Nagpur and were not present on the date of occurrence. Resultantly the Police submitted charge sheet only against five accused persons out of 8 excluding the minor daughter of Narad Sharma, the sister of present petitioners and the present petitioners who also happened to be the sons of Narad sharma against whom a final report was submitted. The court did not disagree with the final report submitted against the petitioners and took cognizance only with regard to those against whom charge sheet has been submitted. When the trial started, PW-1 Sumitra Devi , mother of the deceased was examined who stated the names of all the accused persons including the present petitioners and deposed as eye witness even though initially the First Information Report had been instituted without there being an eye witness account of anyone. Her attention was thus drawn to her statement given to the Police under Section 161 Cr. P.C. that she had not stated before the Police that she had seen the accused persons assaulting the deceased. However, she denied the same. As PW-2 Sonam Devi was examined, who stated that she went to the place of occurrence after the assault and saw the accused persons standing in the courtyard. Considering the submissions of these two witnesses, the trial court summoned the present petitioners relying on the statements given in examination-in- 3 chief and held that it appeared that the petitioners have complicity in the alleged occurrence. The learned counsel for the petitioners has submitted that there is no dispute that the court has the power to summon additional accused under Section 319 Cr. P.C. if there are overwhelming evidence appearing against the accused persons but in the present case the same appears to be lacking and, therefore, the Trial Court committed an error in summoning the present petitioners. The learned counsel for the opposite party, however, rebuts his arguments and placed reliance of the Hon’ble Supreme Court referred in PLJR 2007(4) S.C. 144 wherein it has been held that the Police report is not the last word in investigation and the court can disagree with the final report and if there is any material, the accused can be summoned under Section 319 Cr. P.C. In my opinion, the said decision has no applicability in the present case. There is no dispute that the powers under Section 319 Cr. P.C. are very wide but at the same time, the same has to be used very sparingly and just because there is some material appearing against the accused persons, it does not justify summoning additional accused under Section 319 Cr. P.C. Here this Court is reminded of a decision reported in A.I.R. 2008 1564 wherein it has been stated that the Court has to be circumspect in summoning an accused, the word “it appears” are not to be read lightly. The evidence appearing 4 must be legal evidence. In the present case, P.W.1 even though has deposed is an eye witness in court evidently was not an eye witness in the course of investigation or else, she would have been mentioned as such in the First Information Report and also her attention being drawn to her earlier statement is indicative of the fact that she is not an eye witness. This being a major omission it would amount to a contradiction and vitally affects her credibility. PW-2 merely stating that the present petitioner was also present at the place of occurrence does not amount to anything since undoubtedly the petitioners being the son of Narad Sharma would naturally be expected to be present, if at all, in the Courtyard. In the result, this application is allowed and the order dated 10.7.2007 passed by the Fast Track Court-I, Siwan, is quashed. S.Ali (Anjana Prakash, J.)