IN THE HIGH COURT OF JUDICATURE AT PATNA CR. REV. No.1330 of 2008 1. MD.ALLAUDDIN 2. MD. KALAM BOTH ARE SONS OF LATE FIDA HUSSAIN ALL ARE RESIDENT OF VILLAGE MUTANE, P.S.- HATHAURI, DISTT- MUZAFFARPUR. Versus THE STATE OF BIHAR For the petitioners : Mr. K.N. Diwakar, Advocate. For the State : Mr. Jharkhandi Upadhyay, APP ----------- 2 20.07.2010 Heard both sides. Petitioners are aggrieved by order dated 3.9.2008 passed by learned Addl. Sessions Judge-F.T.C.-I Muzaffarpur in Sessions Trial No. no. 655 of 2006 (State Versus Salauddin). By this order, learned trial court on a consideration of the materials available on record and after hearing the parties on their respective petitions/rejoinders has invoked the jurisdiction conferred upon it under Section 319 of the Code of Criminal Procedure (for short the Code) and summoned the petitioners. Relevant facts leading to the present case may briefly be stated. Brother of the victim lodged an F.I.R. alleging therein that his sister was married to Salauddin about 05 years ago. She was ill-treated at the hands of in-laws for non-fulfillment of the demand of dowry. One year before the occurrence, the informant called his sister and thereafter his brother-in-law came there and ensured that he will not demand money and assault her. On 15.1.2006, he received telephonic message that his sister Sakila Khatoon was killed by the accused persons and an attempt was made to dispose of her dead body. He rushed to the matrimonial 2 home of his sister and found her dead body having black/ligature mark on her neck. It was thus alleged that the accused persons had tortured and killed her in the matrimonial home for dowry. The matter was taken up for investigation. A preliminary charge- sheet was submitted on 30.6.2006 whereby the husband was sent up for trial. It was indicated that investigation in respect to the others was still going on. The cognizance order is not before the Court. It appears that the cognizance of the case was taken under diverse sections of the Indian Penal Code including Section 304B IPC on the basis of the said police report. At the trial, 08 prosecution witnesses were examined in the case. Out of 08 witnesses, 06 witnesses in their respective depositions clearly stated about the implication of the petitioners in the offence. On a consideration of their evidence, it was found that there was sufficient evidence on record justifying summoning of petitioners herein. Accordingly the impugned order was passed. Learned trial court observed as under in the order:- “After going through the F.I.R., chargesheet and evidence led by the prosecution, it appears that prosecution witnesses namely PW.1, PW.2, PW5, PW.6, PW7 and PW.8 have named the remaining accused persons those have been cited in the Fardbeyan of the informant Israr Ahmad u/s 304B/34 I.P.C.. It also appears that the police has merely submitted chargesheet against the accused Salauddin and had stated in the chargesheet that investigation against the remaining accused, is going on. Chargesheet was submitted by the police against Md. Salauddin vide chargesheet no. 16/06, dt. 30.6.06 u/s 304B I.P.C. and I fail to understand that under what circumstances, the I.O. of this case did not complete the investigation against the remaining accused persons after lapse of about 2 years. The 3 prosecution witnesses 1, 2, 5, 6, 7 and 8 have supported the complicity of the remaining accused persons namely Md. Alauddin, Md. Kalam and Jaitun Khatoon in commission of the offence in the alleged occurrence of the case.“ While assailing the sustainability of the impugned order, it has been contended that the investigation was pending in respect of the petitioners and during the pendency thereof, the present order has been passed which is contrary to law. According to him, the Magistrate shall have jurisdiction to pass impugned order only after submission of the charge-sheet sending them up for trial. Learned A.P.P. on the other hand submitted that learned trial court below on a perusal of the evidence of six prosecution witnesses came to the conclusion that there is/are sufficient material on record justifying the summoning of the petitioners which do not call for any interference. Heard the submissions advanced on behalf of the petitioners and perused the materials on record. Section 319(1) and (2) of the Code read as under:- “319. Power to proceed against other persons appearing to be guilty of offence.-(i) 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. (2) Where such person is not attending the Court he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid (3) xxxxxx (4) xxxxxx“ 4 On a perusal of this provision it would appear that wide power has been conferred upon the court in order to do complete justice in a trial. The intent of this provision appears to be that no person against whom there is/are sufficient/adequate materials indicating implication in the commission of offence should be let off without there being a trial. It can further be seen that the provisions is/are not fettered by any other provision of the Code. Having regard to the scope of the said provision and the materials on record, the submission advanced on behalf of the petitioners seems to be misplaced. If his submission is to be accepted then no persons can stand trial in a case arising out of an F.I.R. if the police have not found and recommended for their trial. The order of cognizance is not on record. This court can only observe that cognizance is taken of a case. In view of the position of law spelt out hereinabove, this court does not find any infirmity and/or illegality in the order meriting interference. The application is devoid of merit. It is accordingly dismissed. pkj ( Kishore K. Mandal, J. )