IN THE HIGH COURT OF JUDICATURE AT PATNA CR. REV. No.90 of 2009 Prakash Kumar Agrawal, son of Trilok Chandra Agrarwal, Proprietor of Prakash Handloom, resident of M.G. Road Town, P.S. and District- Katihar Versus 1. The State Of Bihar. 2. Pramod Kumar Agarwal 3. Anil Agarwal, both sons of Hardwari Agarwal and residents of Binodpur, Town and P.S. and District- Katihar. ----------- 6. 20.07.2011 The informant petitioner has preferred this revision application against the order dated 28.11.2008 passed by the learned Sessions Judge, Katihar in Cr.Revision No.89/08 by which he has been pleased to set aside the order dated 23rd April, 2008 passed by the learned Judicial Magistrate, Ist class, Katihar in G.R.No.1214/05 arising out of Katihar Town P.S.Case No.292/05 by which Opposite Party Nos.2 and 3 have been summoned under Section 319 Cr.P.C. for their appearance and to face the trial for the offence punishable under Sections 381 and 109 I.P.C. Heard Mr. Dev Kumar Pandey, the learned counsel for the petitioner, Mr. Akhileshwar Prasad Singh, learned senior counsel for Opposite Party Nos. 2 and 3 and learned A.P.P. for the State. The petitioner filed written information to the Officer-in- charge of Katihar police station stating therein that Sujay Datta was his employee in his shop ‘Prakash Handloom’. The opposite party nos. 2 and 3 have their shop ‘Amita Handloom’ 2 by the side of the petitioner. Both of them persuaded the co- accused Sujay Datta to give them the goods from the godown of the petitioner and they would pay for it. The accused Sujay Datta whenever used to take out material from the godown of the petitioner, he also used to give the material to the co-accused (opposite parties). Later on, it was detected that the goods kept in the godown of the informant- petitioner, is shortened. He asked the employee Sujay Datta and he accepted that whenever there was necessity to take out two bundles of any materials (clothes). He used to take out four bundles and two bundles were kept on the stairs of the godown, which were taken by the Opposite Party Nos.2 and 3 in their godown and for this act, both of them were paying money and they have paid him Rs.50,000/-uptillnow. On this version, Katihar Town P.S. Case No.292/05 was instituted for the offence punishable under Sections 109 and 381 I.P.C. After investigation, charge-sheet was submitted only against the co-accused Sujay Datta and the protest petition was filed by the informant, but no action was taken by the learned Magistrate. Cognizance was taken against the sole accused Sujay Datta. The charges were framed against him on 22.06.2006 under Sections 109 and 381 I.P.C. During the trial, four witnesses were examined. Out of them, P.Ws. 2, 3 and 4 supported the prosecution case showing the involvement 3 of O.P. Nos. 2 and 3 in stealing away the goods belonging to the petitioner. A petition was filed on behalf of the petitioner under Section 319 Cr.P.C. on 10.12.2007 for summoning the O.P.Nos. 2 and 3. The learned Judicial Magistrate vide order dated 23.04.2008 held that there was sufficient evidence for proceeding against them under Sections 381 and 109 I.P.C. and asked both of them to appear on 27.05.2008. The Opposite Party Nos. 2 and 3 filed Cr. Revision No.89/08 in the court of learned Sessions Judge, Katihar, who has been pleased to set aside the order dated 23.04.2008 passed by the learned Judicial Magistrate. The learned counsel for the petitioner submits that there is a sufficient prosecution evidence to summon the opposite party nos. 2 and 3 under Section 319 Cr.P.C. The learned Sessions Judge has set aside the order passed by the learned Judicial Magistrate on the ground that the learned Magistrate has considered the allegations of the informant leveled in the F.I.R. against the petitioner and also the statement of co-accused Sujay Datta and the statement recorded under Section 164 Cr.P.C. which were available during investigation and also on the ground that these facts were available before the police and after considering those allegations, the police did not submit charge-sheet against them. The learned counsel for the petitioner 4 has further submitted that the learned Magistrate has considered the evidence of P.W.2 Binod Kumar Agrawal, P.W.3 Pawan Kumar Agrawal and P.W.4 Deepak Mahto, who have supported the prosecution case. The learned Magistrate has only stated that the factum of F.I.R. have been fully corroborated by the version of P.W.2, P.W.3 and P.W.4 in their respective depositions. He has not based his order on the allegation made in the F.I.R. or by the statement recorded under Section 164 Cr.P.C. He has further submitted that the learned Sessions Judge has also not stated that the evidence against the opposite party nos. 2 & 3 is insufficient for proceeding against them. On the other hand, learned counsel for the opposite party nos. 2 and 3 has submitted that the power under Section 319 Cr.P.C. should only be invoked where it is imperative to meet the ends of justice. The evidence adduced against such person must be substantive evidence in order to summon them for trial, warranting their prosecution thereafter with good chance of conviction. In the present case, there was no direct evidence on complicity of the opposite party in the occurrence. In support of his contention, he has relied upon decisions in the case of Brindawan Das & Ors. Vs. State of West Bengal reported in (2009) 3 SCC 329 and Lal Suraj @ Suraj Singh & Anr. Vs. State of Jharkhand reported in (2009) 2 SCC 696. 5 After hearing the learned counsels for both the parties and on perusal of the material on record, it appears that Binod Kumar Agrawal has been examined as P.W.2 in this case. From his deposition (Annexure-3), it appears that he is an eye witness to the occurrence. He has fully supported the case of the petitioner. He has specifically stated that the bundle of Lungi was kept on the stairs by the co-accused Sujay Kumar Datta, which was taken by the accused Pramod and Anil (O.P. Nos. 2 and 3) and one bundle was brought by the co-accused in the shop of the petitioner. It further appears that Sujay Kumar Datta was also asked by the petitioner in his presence and Sujay Kumar Datta has accepted that he had been selling the bundles of cloth to the opposite parties, the owners of Amita Handloom and in the Panchayati also both of them had accepted this fact, but they refused to make signature on the Panchnama. It further appears from the evidence of P.W.3 Pawan Kumar Agrawal that he also saw the accused Sujay Datta taking out two bundles of Lungi from the godown of the informant and out of them, one bundle was kept on the stairs and one bundle was brought in the shop of the petitioner. It appears that he is also an eye witness. P.W.4 Deepak Mahto has gone to the shop of the informant after hearing the Hulla and he went to the shop of the informant, Pawan Agrawal (P.W.3) told him that there has been theft of 6 Lungi and Gamchha by Sujay Kumar Datta. Sujay Kumar Datta used to keep the bundle on the stairs which was taken by the accused Pramod Agrawal and Anil Agrawal. In his cross- examination, he has stated that he has not seen any one committing the theft and it appears that he is a hearsay witness. From the evidence of P.Ws. 2 & 3, it appears that there is substantive evidence in order to summon the opposite parties for trial, warranting their prosecution thereafter there is good chance of conviction. In the case of Lal Suraj Singh (Supra), the learned trial court relying upon the evidence of P.Ws.6 & 7 has allowed the application under Section 319 Cr.P.C. for summoning the appellant. In that case, it was found that P.W.6 was not an eye witness to the occurrence and P.W.7 was only a hearsay witness. No evidence worth the name, therefore, had been brought on the record to arrive at a satisfaction that there was a reasonable prospect of conviction of the appellant. In case of Brindawan Das (Supra) also it was found that there was not a single eye witness to have been cited in that case and the entire evidence was hearsay in nature. But in the case in hand, it appears that P.Ws.2 & 3 are the eye witnesses to the occurrence and they have supported the case of the prosecution. There is sufficient evidence to show the complicity of the opposite party nos. 2 and 7 3, to have committed the offence. In my humble view, the aforesaid decisions cited by the learned counsel for the opposite parties do not help them rather they help the prosecution. Considering the facts and circumstances stated above, in my opinion, the impugned order is not fit to be sustained. The impugned order is set aside. The order passed by the learned Magistrate is restored and the learned Magistrate is directed to proceed with the case against the opposite party nos. 2 and 3 in accordance with law. In the result, this application is allowed. V.K. Pandey ( Amaresh Kumar Lal, J.)