IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.50519 of 2007 ========================================== 1.GANGA MAHTO, S/O LATE ROJHAN MAHTO. 2.HARENDRA MAHTO @ HARENDRA PRASAD, S/O GANGA MAHTO, BOTH RESIDENTS OF VILLAGE GODHWA, P.S. MOTIHARI MUFASSIL, DISTRICT EAST CHAMPARAN. …………………PETITIONERS. VERSUS 1.STATE OF BIHAR. 2.RAJEEV KUMAR, S/O KAILASH THAKUR, R/O MATHIA TOLA BANHAT, P.S MUFASSIL, DISTRICT EAST CHAMPARAN. …………………RESPONDENTs ============================================ CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA Mihir Kumar Jha,J. Heard counsel for the parties. 2. The two petitioners have assailed an order dated 20.09.2007 passed by the IVth Additional Sessions Judge, Motihari in Sessions Trial No. 982 of 2004, whereby and whereunder, they have been summoned to face trial in the aforementioned pending Sessions case in terms of Section 319 of the Code of Criminal Procedure (hereinafter referred to as Cr.P.C). 3. The facts which are not in dispute and would be sufficient for the disposal of this case lies in a very narrow compass. A fard beyan of victim boy, Rajiv Kumar (Opposite Party No. 2), aged about 10 years, was recorded in Dr. Rahman’s Nursing Home, Motihari, wherein, he had alleged that in the evening of 11.09.2003 at about 6:30 P.M, while he was going to a field for easing himself, it was one Gajendra Prasad who had snatched his Lota and Gumchha and had ran away 2 in the Cane-sugar field of Ragho Shukla and when the Opposite Party No. 2 had chased him, he was caught hold and severly assaulted and when he had tried to raise hulla, the aforesaid Gajendra Prasad pressed his mouth with his one hand and had also assaulted him with Khurpi in his other hand, as a result of which Opposite Party No. 2, had sustained injuries all over his body including his neck, head, left shoulder as well as in both wrists and palms of his hand. It has been also alleged by the Opposite Party No. 2 that while he had lost his consciousness on account of the severe assault made on his person by Gajendra Prasad who had thereafter left the place of occurrence treating Opposite Party No. 2 to be dead. It has also been stated that after he had regained consciousness and was trying to go towards his house he had again fallen down and became unconsciousness in the paddy field of Jiut Paswan and only when the next morning his family members had started searching him, they had found the Opposite Party No. 2 lying in the paddy field of Jiut Paswan and from where he was brought to Dr. Rahman’s Nursing Home, Motihari, whereafter being given treatment when he had regained consciousness his fard beyan was recorded by the police. It is the fard beyan of Opposite Party No. 2 which led to institution of Muffasil P.S Case No. 184 of 2003 dated 12.09.2003 for the offences punishable under Section 341, 324, 3 307 and 364 of the Indian Penal Code, wherein, only Gajendra Prasad was named as an accused. 4. It would be, however, relevant to note here that within 24 hours of the recording of the fard beyan, the informant was again examined by the police and by way of his further statement to police he had named the two petitioners alleging that they were also there in the Cane-sugar field and when Khurpi blow was given by Gajendra Mahto, the petitioner Ganga Mahto was catching his both legs while the petitioner Harendra Mahto was holding both of his hands. The police thereafter had investigated the case and had submitted its charge sheet only against Gajendra Mahto, inasmuch as, it had not sent up the two petitioners for trial by mentioning in the charge sheet that no material was found against the two petitioners. 5. It is, however, significant to note here that the Chief Judicial Magistrate on perusal of the case diary had taken cognizance of the offences under Sections 341, 324, 307 and 364 of the Indian Penal Code and had issued summons not only against the accused Gajendra Mahto but also against the two petitioners by way of disagreement with the police report. When the case was, accordingly, committed to the Court of Sessions, the two petitioners namely Ganga Mahto and the Harendra Mahto had filed an 4 application on 15.02.2005 for discharge under Section 227 of Cr.P.C and the trial Court by its reasoned order dated 04.03.2005, had discharged them while holding that the trial would proceed only against the accused Gajendra Mahto. It has to be noted that the said order of discharge was assailed in this Court in Criminal Revision No. 263 of 2005 at the instance of Opposite Party No. 2 and the same was permitted to be withdrawn by an order dated 06.07.2006 with the liberty to file an application under Section 319 of Cr.P.C at appropriate stage. 6. The prosecution thereafter is said to have led its evidence in between November-2006 to May-2007, wherein, as many as six witnesses including Opposite Party No. 2 were examined and on 30.05.2007, an application was filed under Section 319 of the Code of Criminal Procedure that in the oral evidence of all six witnesses the specific role of the petitioners participating in the occurrence in question had surfaced and as such the two petitioners should be summoned to face trial. The trial Court by its impugned order dated 20.09.2007, allowed such prayer of the prosecution and had summoned the two petitioners to face trial in exercise of its power under Section-319 of Cr.P.C. 7. Mr. Rajendra Narayan, learned counsel for the petitioners assailing the aforesaid impugned order 5 dated dated 20.09.2007 had submitted that once the two petitioners were discharged by the trial Court in exercise of its power under Section-227 of Cr.P.C they could not have been summoned to face trial under Section-319 of the Code of Criminal Procedure, inasmuch as, only such persons could be summoned to face trial who were not accused in the case. In this regard, strong reliance was placed by him on the judgment of the Apex Court in the case of Sohan Lal and Others vs The State of Rajasthan, reported in AIR 1990 SC 2158 as also on the Michael Machado and Anr vs Central Bureau of Investigation and Anr reported in 2000(3) SCC 262. 8. Dr. Mayanand Jha, learned counsel appearing on behalf of the State and Sri Uma Kant Shukla, learned counsel appearing on behalf of the Opposite Party No. 2 on the other hand would submit that the trial Court had sufficient power and jurisdiction to summon the petitioners under section 319 Cr.P.C after collection of evidence showing their complicity as well in the offence. They have in this regard has placed reliance on the judgments of the Apex Court in the case of Kishun Singh and Others vs The The State of Bihar, reported in 1993(2) SCC 16, Ranjit Singh vs State of Punjab, reported in 1998(7)SCC 149 and Rajendra Singh vs The State of U.P and Another, reported in 2007(7) SCC 378 as well as a division 6 bench judgment of this court in the case of Bishwanath Tato and Ors vs The State of Bihar, reported in 1993(2) PLJR 602. 9. In the light of the aforementioned facts and rival submissions, the only question for determination would be as to whether the order of discharge in favour of the petitioners would stand as bar in invoking the power and jurisdiction of the trial Court under Section-319 Cr.P.C. 10. Learned counsel for the petitioner has submitted that as the petitioners were not named in the F.I.R and yet summoned as accused to face trial by the learned Magistrate taking cognizance while differing with the police report, they had become accused and as such when they were discharged in terms of Section 227 of the Cr.P.C, they would be deemed to have been automatically gone out of the purview of Section-319 Cr.P.C which in very clear terms is applicable only in respect of such persons who are not accused in the criminal case. In this regard he has placed reliance on the judgment of the Apex Court in the case of Sohan Lal (supra) with an added emphasis on paragraph no. 29, 30 and 33 thereof. 11. In the considered opinion of this Court the expression accused having not been defined in the Cr.P.C its meaning has to be always understood in the context they have been used in Cr.P.C at various 7 places in Cr.P.C including under Section-227 and 319 thereof. Thus when the expression accused has been used under Section-227 of Cr.P.C, it only relates to such persons who have been either charge sheeted by the police or against whom summons have been issued by the Court following the order taking cognizance. At the stage of Section 227 Cr.P.C nothing else has to be seen except the materials collected by the police in the case diary. The expression accused, therefore, used in Section-227 of Cr.P.C cannot have the same meaning as that under Section-319 Cr.P.C where in course of trial apart from the persons facing the trial, the trial Court can summon any other persons to face the trial who was not accused in course of such trial. The sanguine purpose of Section-319 Cr.P.C, therefore, is to put on trial all such persons against whom evidence has been brought in the Court. The person against whom either the Magistrate refuses to issue summons or a person who is discharged in the basis of the police report is not facing trial because the trial only begins after framing of charge. Non availability of materials collected by a police officer during investigation leading either to dropping the proceedings at the time of taking cognizance or discharged by the Court does not absolve a person to be charged and tried subsequently. The discharge may be due to inept investigation and 8 inquiry and therefore, if there has been no proper investigation and/or collection of relevant materials, the discharged person can again be charged and tried on the basis of evidence collected in course of trial. The basic intention of legislature is that one should not be subjected to judicial process or investigation without any foundation and therefore, once a foundation is made in the form of evidence collected during the course of trial, a discharged person can also be summoned to face trial under Section-319 Cr.P.C. 12. It is this aspect of the matter which has been settled by the Apex Court in the case of Kishun singh (supra) which after considering the earlier judgment of the Apex court in the Sohan Lal (supra)had held as follows:- “On a plain reading of sub-section (1) of Section-319 there can be no doubt that it must appear from the evidence tendered in the course of any inquiry or trial that any person bot being the accused has committed any offence for which he could be tried together with the accused. The power, it seems clear to us, can be exercised only if it so appears from the evidence at the trial and not otherwise. Therefore, this sub-section contemplates existence of some evidence appearing in the course of trial wherefrom the Court can prima facie conclude that the person not arraigned before it is also involved in the commission of the crime for which he can be tried with those already named by the police. Even a person who has earlier been discharged would fall within the sweep of the power conferred by Section-319 of the Code. Therefore, stricto sensu. Section- 319 of the Code cannot invoked in a case like the present one where no evidence has been led at a trial wherefrom it can be said that the appellants appear to have been involved in the 9 commission of the crime along with those already sent up for trial by the prosecution.” (underlining for emphasis). 13. The over emphasized reliance placed by Mr. Narayan, learned counsel for the petitioner on the judgment of the Apex Court in the case of Sohan Lal (supra), in fact also stands explained in the subsequent Division Bench judgment of this Court in the case of Bishwanath Tato(supra), wherein, it was held as follows:- 12. From the bare perusal of the provisions of Section 319 (1) of the Code it is clear that if during course of the inquiry or trial evidence on the record shows that the person other than the accused facing the inquiry or trial has committed the offence for which he could be tried along with the accused facing the trial, the court may summon such person to fact the trial with the accused. The expression “any person not being the accused” refers to such person who is not facing the inquiry or trial as an accused. The word „accused‟ in this section refer to the person or persons who is or are facing inquiry or trial at the time when the question for addition of an additional accused is being considered. 13. The scope of Section 319 (1) came for consideration before the Supreme Court in the case of Jogender Singh & anr. V. State of Punjab and anr. (AIR 1979 SC 339), wherein, it was held that the aforesaid section applies to all the courts including the court of session and if it appears to the Sessions Court from the evidence on the record that any person not an accused before it has committed the crime, it has power to add him as an accused to face the trial. In paragraph 6 it was held as follows: “ A plain reading of Section 319 (1), which occurs in Chap. XXIV dealing with general provisions as to inquiries and trial, clearly shows that it applies to all the courts including a Sessions Court and as such a Sessions court will have the power to add any person, not being the accused before it, but 10 against whom there appears during the trial sufficient evidence indicating his involvement in the offence, as an accused and direct him to be tried along with the other accused….” It was further held that the cognizance is taken of the offence and not of the offenders and once the sessions court is properly seized of the case as a result of the committal order against some accused, it can add any person not an accused before it in exercise of power u/s 319 (1) of the Code and direct him to be tried along with other accused. With regard to the meaning of the word “any person not being an accused” occurring in Section 319, the apex Court held as follows : “…..The said expression clearly covers any person who is not being tried already by the Court and the very purpose of enacting such a provision like Sec. 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 said expression.” ( Emphasis added) 14. The scope of Section 319 of the Code again came for consideration before the apex Court in the case of Municipal Corporation of Delhi V. Ram Kishan Rohtagi & ors. (AIR 1983 SC 67) and there the case of Joginder Singh (supra) was noticed and followed and it was held that the provisions of Section 319 (1) give ample powers to any Court to take cognizance and add any person not being an accused before it and try him along with the other accused. It was held as follows : “….If the prosecution can at any stage produce evidence which satisfies the Court that the other accused or those who have not been arrayed as accused against whom proceedings have been quashed have also committed the offence the Court can take cognizance against them and try them along with the other accused. But, we would hasten to add that this is really an extraordinary power which is conferred on the Court and should be used very sparingly and only if compelling reasons existing for taking cognizance against the other person against whom action has not been taken…..” 15. in the case of Dr. S.S. Khanna v. The Chief Secretary, Patna (AIR 1983 SC 595 : 1983 PLJR 107 (SC) the question for consideration before the Supreme Court was as to whether a person, who was not summoned as an 11 accused after an enquiry u/s 202 of the Code and the order refusing to summon him has been upheld by the revisional court, can be summoned later on during the trial on the basis of the evidence adduced. Dealing with the said question it was held in the said case that “ even if a person not summoned after an enquiry u/s 202 of the Code and if during course of trial it appears from the evidence on record that he has committed an offence then he could be tried along with the other accused persons, even if the order declining to issue summons against him u/s 202 is confirmed by a higher court.” 16. Recently, the scope of section 319 of the Code also came up for consideration before the Supreme Court in the case of Kishun Singh & ors. V. State of Bihar in ( Criminal Appeal No. 24 of 1993) disposed of on 11.1.93. In that case it was held that even a person who has been discharged earlier could also be summoned in exercise of power u/s 319 of the Code, provided, from the evidence on the record it appears that he has committed an offence along with other accused facing the trial. It is apt to quote the following passage from the aforesaid judgment. “ On a plain reading of sub-section (1) of Section 319 there can be no doubt that it must appear from the evidence tendered in the course of any inquiry of trial that any person not being the accused has committed any offence for which he could be tried together with the accused. This power, it seems clear to us, can be exercised only if it so appears from the evidence at the trial and not otherwise. Therefore, this sub-section contemplates existence of some evidence appearing in the course of trial wherefrom the court can prima facie conclude that the person not arraigned before it is also involved in the commission of the crime for which he can be tried with those already named by the police. Even a person who has earlier been discharged would fall within the sweep of the power conferred by Section 319 of the Code. Therefore, stricto sensu, Section 319 of the Code cannot be invoked in a case like the present one where no evidence has been led at a trial wherefrom it can be said that the appellants appears to have been involved in the commission of the crime along with those already sent up for trial by the prosecution. But then it must be conceded that Section 319 covers the Post cognizance stage where in the course of an enquiry or trial the 12 involvement or complicity of a person or persons not named by the investigating agency has surfaced which necessitates the exercise of the discretionary power conferred by the said provision. Section 319 can be invoked both by the court having original jurisdiction as well as the court to which the case has been committed or transferred for trial. The sweep of Section 319 is, therefore, limited, in that, it is an enabling provision which can be invoked only if evidence surfaces in the course of an inquiry or a trial disclosing the complicity of a person or persons other than the person or persons already arraigned before it…..”(Emphasis added). 17.Thus, it is clear that the expression “any person not being an accused” occurring in Section 319 (1) of the Code has been interpreted to mean a person not being an accused before the court holding inquiry or trial. The aforesaid expression includes the persons who have not been sent up by the police during the investigation or against whom the proceeding has been quashed at the initial stage by the superior court or who has been summoned to face the trial, after enquiry u/s 202 of the Code or who have been discharged earlier in the proceeding. Such class of persons may be summoned as an accused to face the trial along with other accused already facing the trial, if the evidence adduced during the inquiry and trial shows their complicity in the crime in question. 18. Learned counsel for the petitioners, however, relied upon a judgment of the Supreme Court in the case of Sohan Lal (Supra) and contended that according to the said decision if a person having been an accused earlier has been discharged by the court then he cannot be summoned subsequently to face the trial even if the evidence comes on the record in exercise of power u/s 319 of the Code. According to him, as in the present case the petitioners have been discharged earlier, their case has been fully covered by the aforesaid decision. In support of his submission he relied upon the following observations made in paragraph 33 of the judgment, which runs as follows : “The provisions of Section 319 had to be read in consonance with the provisions of S.398 of the Code. Once a person is found to have been the accused in the case he goes out of the reach of S. 319. Whether he can be dealt with under any other provisions of the Code is 13 a different question. In the case of the accused who has been discharged under the relevant provisions of the Code, the nature of finality to such order and the resultant protection of the persons discharged subject to provision under S. 398 of the Code may not be lost sight of.” (Emphasis added) I am unable to agree with the submissions advanced on behalf of the petitioners. Sohan Lal’s Case (supra) has been noticed by the Supreme Court in the case of Kishun Singh (supra) and it has been held that the view taken in the case of Jogender Singh (supra) has been reiterated in the Sohan Lal’s case and the conclusion arrived at by the Bench in the Sohan Lal’s case (supra) with regard to the scope of Section 319 has been quoted in the judgment of Kishun Singh (supra), which runs as follows : “Section 319 empowers the Court to proceed against persons not being the accused appearing to be guilty of offence. Sub-sections (1) and (2) of this section provide for a situation when a court hearing a case against certain accused person finds from the evidence that some person or persons, other than the accused before it, is or are also connected in this very offence; and it empowers the Court to proceed against such person or persons for the offence which he or they appears or appear to have committed and issue process for the purpose. It provides that the cognizance against newly added accused is deemed to have been taken in the same manner in which cognizance was first taken of the offence against the earlier accused. It naturally deals with a matter arising from the course of the proceeding already initiated. The scope of the section is wide enough to include cases instituted on private complaint.” 19. The paragraph relied upon by the learned counsel for the petitioners is not the conclusion arrived at in Sohan Lal’s case (supra) and it is clear from the law laid down in Kishun Singh’s case (supra) that even a person who has been discharged earlier can also be summoned to face the trail if the evidence recorded during the course of the trial shows has complicity in the crime in question. Accordingly, the submission advanced on behalf of the petitioners has no force. 14 14. Thus in