Criminal Miscellaneous No.25598 OF 1998 ---- In the matter of an application under Section 482 of the Code of Criminal Procedure, 1973. ---- JEBARI DEVI, WIFE OFDEVENDRA PRASAD RAI, RESIDENT OF VILL. P.S. BATHNAHA, DISTT. SITAMARHI. ... ... PETITIONER. Versus 1. THE STATE OF BIHAR 2. UPENDRA RAI @ UPENDRA PRASAD RAI 3. BIRENDRA RAI @ BIRENDRA PD. RAI BOTH SONS OF GANGA PD. RAI. 4. MUNARI DEVI, W/O GANGA PRASAD RAI 5. GANGA PRASAD RAI SON OF JAGNNATH RAI. 6. MINA DEVI WIFE OF UPENDRA PRASAD RAI. 7. INDRA DEVI WIFE OF BIRENDRA PRASDAD RAI. 8. RANGEELA DEVI WIFE OF BIRENDRA PRASAD RAI. 9. RAMEKBAL RAI SON OF GAGNNATH PRASAD RAI. 10. SUBUDHI DEVI W/O RAMEKBAL RAI. ALL RESIDENT OF VILL. TANDESPUR, P.S. BATHNAHA, DISTRICT SITAMARHI. 11. KRISNA DEVI D/O GANGA PRASAD RAI W/O NAGENDRA RAI, RESIDENT OF VILL- KOILI, P.S. BATHNAHA, DISTRICT SITAMARHI. ... ... OPPOSITE PARTIES. ---- For the Petitioner : Mr. Mahendra Thakur,Adv. For the State : Mr. Parmanand Prasad,A.P.P. ---- P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR ---- Rakesh Kumar,J. The sole petitioner aggrieved with the order dated 3.3.1998 passed by learned Sessions Judge, Sitamarhi in Cr. Revision No.257 of 1997 arising out of G.R. No.199 of 1994 Tr. No.262 of 1997, has approached this Court, while invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal - 2 - Procedure. By revisional order i.e. order dated 3.3.1998, the learned Sessions Judge had quashed the order dated 15.5.1997 passed by Shri R.C. Mishra, Judicial Magistrate, Ist Class, whereby, while exercising power under Section 319 of the Code of Criminal Procedure, summons were issued to opposite party nos.2 to 11 of the present case to face the trial. 2. Short fact of the case is that earlier the petitioner filed a complaint case arraying opposite party nos.2 to 11 as well as her husband and second wife as accused persons. It was alleged in the complaint petition that during the life time of the petitioner, the husband married with one Janak Dulari Devi. Subsequently, it was alleged that she was tortured by the accused persons and finally she was ousted from her inlaws house and thereafter, she was constrained to file a complaint case. The said complaint case was referred to the police for registration and investigation of the case under Section 156(3) of the Code of Criminal Procedure. Accordingly, an F.I.R. vide Bathnaha P.S. Case No.16 of 1997 was registered for the offence under Sections - 3 - 147, 323, 341, 498A, 379 and 34 of the Indian Penal Code. The F.I.R. was lodged against 14 accused persons including opposite party nos.2 to 11. However, after investigation, police submitted charge sheet only against the husband of the petitioner, namely, Devendra Prasad Rai and his second wife Janak Dulari Devi. After submission of the charge sheet, the learned Magistrate took cognizance of the offence and thereafter, trial in the present case commenced. During the trial, two witnesses were examined and after examination of two witnesses, the learned Magistrate after being satisfied that sufficient evidence was brought on record indicating commission of offences by opposite party nos.2 to 11, a petition was filed under Section 319 of the Cr.P.C. for summoning opposite party nos.2 to 11 of the present case. The learned Magistrate by its order dated 15.5.1997, while exercising its power under Section 319 of the Cr.P.C. directed for issuance of summon to opposite party nos.2 to 11 of the present case to face the trial. 3. Aggrieved with the order of learned Magistrate dated 3.3.1998, the opposite - 4 - party nos.2 to 11 preferred a revision vide Cr. Revision No.257 of 1997. The learned Sessions Judge, after hearing the parties by its order dated 3.3.1998, allowed the revision petition and quashed the order dated 15.5.1997. Before the revisional court, it was argued on behalf of the opposite party nos.2 to 11 that since the opposite party nos.2 to 11 were F.I.R. named accused and police after investigation submitted charge sheet only against two accused persons exonerating these opposite parties, it will be deemed that the opposite party nos.2 to 11 were discharged and once they were discharged, the learned Magistrate was not having any authority to summon the opposite party nos.2 to 11 of the case to face trial. The learned Sessions Judge, Sitamarhi accepting the plea of accused persons has allowed the revision petition and quashed the order of Magistrate. 4. Shri Mahendra Thakur, learned counsel appearing on behalf of the petitioner submits that the learned Sessions Judge, while allowing the revision petition, has committed a gross error. He submits that the learned - 5 - Sessions Judge has incorrectly appreciated the law as well as provision contained in Section 319 of the Code of Criminal Procedure. Shri Thakur has relied upon a judgment of this Court reported in 2003(2) PLJR 84 (Rajendra Singh Vs. State of Bihar & anr.). In the said case, this Court had also examined a judgment of Hon’ble Supreme Court reported in 1993(2) SCC 16 (Kishun Singh & others Vs. State of Bihar). In Kishun Singh’s case (Supra), it was held that even the accused persons, who were discharged, will come under the sweep of power conferred by Section 319 of the Code of Criminal Procedure. 5. I am also of the view that the learned Sessions Judge has incorrectly interpreted the provision of Section 319 of the Code of Criminal Procedure. It is true that the power under Section 319 of the Cr.P.C. is to be exercised sparingly, but at the same time, there is no restriction on the court to summon those accused, who were not even charge sheeted by the police though they were named in the F.I.R. However, while exercising such power, it is required to examine as to whether, sufficient materials, after examination of - 6 - PATNA HIGH COURT Dated 15.4.2010 N.A.F.R./N.H. witnesses, has come or not showing the involvement of an accused not sent up for trial. 6. In view of the facts and circumstances as well as law laid down by Hon’ble Supreme Court, I am of the view that order dated 3.3.1998 passed in Cr. Revision no.257 of 1997 by the Sessions Judge, Sitamarhi is not sustainable in the eye of law and, accordingly, same is set aside. Keeping in view the fact that case is old one, it is necessary to direct the learned Magistrate to proceed with the case expeditiously. 7. Accordingly, petition stands allowed. ( Rakesh Kumar,J.)