IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.55477 of 2007 SHATRUGHAN SINGH ..PETITIONER Versus 1. THE STATE OF BIHAR 2. ARBIND SINGH 3. SHEJEE SINGH 4. ASHOK SINGH 5. LALDEO SINGH ..OPPOSITE PARTIES For the petitioners : Mr. Binod Kr. Mishra For o.ps. : M/s .Ajay Kumar Thakur : Ravi Ranjan and Amit Kumar ----------- 05. 23.09.2010 Heard counsel for the petitioner, o.p.nos. 2 to 5 and for the State. Petitioner is the victim/informant. He is aggrieved by order dated 29.09.2007, passed by learned Addl. Sessions Judge, F.T.C.-IV, Motihari in S.T.No.455 of 2005, whereby the application filed on behalf of the prosecution under section 319 of the Code of Criminal Procedure(hereinafter to be referred to as the „Code‟) for summoning the o.p.nos. 2 to 5 to stand trial, has been considered and rejected. Learned counsel for the petitioner states that he shall not be pressing the application so for as o.p.no.3,4 and 5 are concerned. An FIR was lodged by the petitioner (informant) being Piprakothi P.S.Case No.125/04 u/ss 307,341 and 120B alleging therein that on 23.12.2004 he was coming from Motihari on his motor cycle and as soon as he reached near Mohanpur petrol pump, two persons riding on a motor cycle came near his motor cycle and co- accused Brajesh Singh who was sitting on the said motor cycle fired at 2 him as a result whereof he sustained gun-shot injuries. He raised an alarm. The motor cycle thereafter sped away. It is the prosecution case that by this time another motor cycle carrying two persons one of them being Arbind Singh arrived at the place of occurrence and co- accused Arbind Singh fired at him from his pistol which, however, did not hit him. The informant could not identify two other persons who were riding/driving the two motor cycles. It is the prosecution case that co-accused Brajesh Singh (already facing trial) had land disputes with the family of the informant. In concluding portion of the FIR it has also been alleged that while the informant was going to Motihari he had seen the accused Brajesh Singh and some other accused persons sitting on a Chauki and were gossiping to each other. The FIR ignited investigation whereafter charge-sheet was submitted whereby o.p.no.2 (another accused) and others were not sent up for trial. Based on the charge-sheet cognizance was taken whereafter the case was committed to the court of sessions where charges were framed and the prosecution was allowed to lead evidence. At the trial, three witnesses, namely, P.W.1 (Raj Kishore Singh, a co-villager), P.W.2(Anil Thakur, nephew of the informant) and P.W.3(informant) were examined. The informant in his deposition has supported the prosecution case as spelt out in the FIR. P.W.1 is said to have deposed that at about 3.00-3.30 P.M. he was going to Motihari and as he reached Mohanpur he heard the sounds of two firings whereafter he reached the place of occurrence and saw the co-accused Brajesh Singh(already facing trial) along with one unknown person on a motor cycle leaving the place of occurrence. It is his evidence that he was informed by the informant 3 that Arbind Singh subsequently also came on a motor cycle and fired at him which, however, did not hit him. P.W.2 (Anil Thakur) in his deposition has stated that as he was coming home he saw the informant in an injured condition having received gun-shot injury. It was disclosed to him that he was hit by fire-arm used by co-accused Brajesh Singh. Another co-accused Arbind Singh riding on different motor cycle also fired at him which, however, did not hit him. On a consideration of evidence available on record, learned trial court rejected the application of the petitioner( informant) concluding as under: “From perusal of evidences of P.W.1, 2 and 3, it does not appear that there were not meeting of mind of accused persons for doing an illegal act. The indication towards informant by the co-accused persons namely, Laldeo Singh, Sheojee Singh, Ashok Singh and Brajesh Singh and Arbind Singh do not indicate that the accused persons were agreed to do any illegal act. P.W.1 and 2 have also not corroborated this statement of P.W.3 firing made by the proposed co-accused Arbind Singh has been also not corroborated by P.O. 1 and 2.” Learned counsel for the petitioner, while assailing the order impugned, submits that considering the evidence available on record, it would appear that o.p.no.2(Arbind Singh) is also a participant in the occurrence. Although, he arrived at the scene of occurrence subsequently but in a close proximity. There is allegation that he, too, fired while riding the motor cycle which fortunately did not hit the informant. The evidence on record, therefore, indicates sufficient materials justifying summoning of the aforesaid co-accused Abrind Singh(o.p.no.2). He relies on a judgment of the Supreme Court rendered in the case of Popular Muthiah vs. State, represented by 4 Inspector of Police {(2006) 7 SCC 296}. Learned counsel appearing on behalf of the opposite party, on the other hand, submits that considering the scope of the jurisdiction invoked by the informant as also the materials available on record, the order impugned cannot be interfered with as learned court below has found that the evidence adduced on behalf of prosecution is/are deficient. He relies on the judgment of the Apex Court rendered in the case of Lal Suraj @ Suraj Singh & Anr. Vs. State of Jharkhand {(2009) 2 SCC 696}. I have considered the submissions advanced on behalf of the parties and perused the materials on record including the impugned order. Section 319 of the Code is the special provision. It confers a wide jurisdiction on the court which is required to be exercised sparingly. The trial court must form an opinion on the basis of the evidence brought before it that the case has been made out for that such person(s) to be tried together with other accuseds. There is no dispute with legal proposition that even if a person has not been charge-sheeted, he may be summoned by invoking the jurisdiction conferred under section 319 of the Code. The court has to see before invoking the jurisdiction that there is/are sufficient/adequate materials on record against the accuseds. This Court perused the evidence of the three witnesses available on record. Informant(P.W.3) has consistently alleged in the FIR as well as in course of his deposition that first of all one motor cycle reached near him and one of the co-accuseds, namely, Brajesh Singh(already facing the trial) riding the said motor cycle fired at him 5 which caused fire-arm injuries. It is his consistent case that soon thereafter another motor cycle arrived at the said place of occurrence and co-accused Arbind Singh(o.p.no.2) was seen sitting on the said motor cycle who fired at him from his pistol which , however, did not hit him. P.Ws.1 and 2 in their respective depositions support the aforesaid evidence/stand of the informant. Learned trial court has taken a view that there is no charge under u/s 120B IPC and, as such, considering the evidence on record it cannot be inferred that there was a conspiracy prior to the occurrence. Learned trial court on that basis has come to the conclusion that evidence on record would not justify summoning of o.p.no.2. As seen hereinabove, the evidence of P.Ws. so far as examined sufficiently indicate the complicity of Arbind Singh(o.p.no.2) in the occurrence in as much as an overt act has been assigned to him. Consequently, the impugned order dated 29.09.2007, in so far as o.p.no.2 is concerned, is hereby quashed and set aside. The matter goes on remand to the learned trial court for passing a fresh order in accordance with law. The application stands disposed of. hr ( Kishore K. Mandal )