IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.14595 of 2007 1. SUBODH SINGH 2. PARAM KISHORE SINGH @ PAPPU SINGH, BOTH SONS OF SATYA NARAYAN SINGH 3. JAYNATH SINGH, SON OF BALDEO SINGH, ALL RESIDENTS OF VILLAGE RAMPUR HORIL, P.S. VAISHALI, DISTRICT VAISHALI. ---- PETITIONERS Versus 1. THE STATE OF BIHAR 2. (i) CHANDESHWAR SINGH (ii) BISHESHWAR SINGH (iii)BHUVANESHWAR SINGH, ALL SONS OF LATE JAYSHREE SINGH, RESIDENT OF VILLAGE RAMPUR HORIL, P.S. MADARNA, DISTRICT VAISHALI. ---- OPPOSITE PARTIES For the petitioners :- Mr. Ashutosh Kumar, Advocate Mr. Chandra Mohan Jha, Advocate For the State :- Mr. Jharkhandi Upadhyay, A.P.P. For the opposite parties :- Mr. Bhagwan Singh, Advocate ----------- 9 26.3.2010 Heard the parties. The petitioners have challenged the order dated 20.1.2007, passed by the learned Additional Sessions Judge-cum-Fast Track Court No. 5, Vaishali at Hajipur in Sessions Trial No. 348 of 2002 arising out of Vaishali P.S. Case No. 67 of 2001 by which the Court has summoned the petitioners under Section 319 of the Code of Criminal Procedure (hereinafter referred to as the Code) to face trial. The First Information Report was instituted by one Jayshree Singh in which he alleges that Ram Pravesh Singh gave orders and Bacha Singh fired on his son. It is further said that Ram Pravesh Singh and Paras Nath Singh assaulted the informant with fists. The motive of the occurrence stated is that Ram Pravesh Singh and Satya Narayan Singh were on inimical terms with the informant and for this reason have killed his son. Others were also named in the First Information Report. Investigation commenced and charge sheet was submitted against the named accused persons except the three 2 petitioners before this Court namely Subodh Singh, Param Kishore Singh @ Pappu Singh and Jaynath Singh. The investigation against these petitioners remained pending till the final report was submitted. On 8.4.2003 final report was allowed after hearing the informant. The informant had also filed an application asking the Chief Judicial Magistrate to take cognizance against these petitioners as well. The Chief Judicial Magistrate after considering all aspects of the matter held that the Court was not empowered to take cognizance against these petitioners and it would only be done by the Sessions Court as the case was triable by the Sessions Judge. The Additional Sessions Judge, III, Vaishali before recording the evidence summoned the petitioners under Section 193 of the Code of Criminal Procedure. This order was challenged in the High Court vide Cr. Misc. No. 11106 of 2004 and was disposed of on 22.2.2005 holding therein that the Sessions Judge had no authority under law to summon the petitioners under Section 193 of the Code of Criminal Procedure and, therefore, the impugned order dated 12.3.2004 was set aside. After the charges were framed the trial began and three witnesses were examined on behalf of the prosecution namely P.Ws. 1, 2 and 3. The evidence of P.Ws. 1, 2 and 3 is on record. Referring to the evidence of P.Ws. 1, 2 and 3, learned counsel for the petitioners submits that the evidence that has come against these petitioners is that they have been named by the three witnesses in chief. Learned counsel for the opposite parties points out that 3 P.W. 1 at paragraph 18 has said that “tc foey dks xksyh yxh ml le; geyksx foey ls iwjc rjQ FksA tc firk dks ekj yx jgh Fkh rks ml le; foey if’pe :[k [kM+k FkkA eqnkysg pkjks rjQ ls ?ksjs gq;s FksA jkes’oj flag fd/kj Fks eSa ugha dg ldrkA dkSu eqnkysg fd/kj [kM+k Fkk ;g vHkh eq>s ;kn ugha gSA” Apart from this statement there is no specific statement regarding the role of these petitioners. Section 319 of the Code of Criminal Procedure is extra ordinary power given to this Court to call or summon any accused persons who has not been arrayed as an accused in the charge sheet if the Court has sufficient reason to believe that the person who has subsequently named in the evidence has played some role in the occurrence. The evidence should be such that would lead the Court to believe that there is every likelihood or a good chance for the persons who are being summoned to face trial of being convicted of the offence in question. In the present case, the evidence that has come on record merely suggests that the petitioners were standing there at the time of the occurrence. It has not been specifically stated or alleged that the petitioners had gathered along with the other co- accused for the purpose of committing the said crime thus what has to be seen by the Court is quality of the evidence, the manner in which the occurrence has taken place and circumstances surrounding the allegations that have been emerged against the persons to face trial under Section 319 of the Code of Criminal Procedure. Learned counsel for the petitioners submits and relies on a decision (Guriya @ Tabassum Tauquir & Ors. Vs. The State of Bihar & Anr.) reported in A.I.R. 2008 S.C 95 wherein the Apex Court 4 has held that in cases of this nature merely the presence of the accused without any definite role being accorded to them cannot be a good reason to summon them under Section 319 of the Code of Criminal Procedure. Undisputedly no overt act has been attributed to the appellants and in the present case the application filed on 18.6.2002 to take cognizance against the non sent accused persons was rejected by the Chief Judicial Magistrate on 8.4.2003 while he was considering the final report submitted in favour of these petitioners. Counsel for the opposite parties on the other hand relies on a judgment in the case of Kishori Singh & Ors. Vs. State of Bihar & Anr. reported in 2000 (48) 3 BLJR 2413 (SC). This case does not consider the question that has been involved in the present case. Counsel for the opposite parties relies on paragraph 10 of the judgment which is being quoted below: “So far as those persons against whom charge-sheet has not been filed, they can be arrayed as “accused-persons” in exercise of powers under Section 319 of Cr.P.C. when some evidence or materials are brought on record in course of trial or they could also be arrayed as “accused-persons” only when a reference is made either by the Magistrate while passing an order of commitment or by the learned Sessions Judge to the High Court and the High Court, on examining the materials comes to the conclusion that sufficient materials exist against them even though the police might not have filed charge-sheet, as has been explained in the latter three Judge Bench decision. Neither of the contingencies has arisen in the case in hand.” The facts of the present case are quite different that has been decided Kishori Singh’s case. I may mention here that there is clarification of this judgment and as such reference to this judgment is of no use to the petitioners. The next judgment relied upon by the opposite parties is the case of Rukhsana Khatoon(SMT) Vs. Sakhawat 5 Hussain & Ors. reported in 2004 SCC (Cr.) 1153. In this case the Allahabad High Court held that Section 319 of the Code of Criminal Procedure cannot be invoked by the Court when a person named in the First Information Report is not charge sheeted. The Court set aside the decision of the Allahabad High court by relying on the case of Kishun Singh & Ors. Vs. State of Bihar reported in (1993) 2 SCC 16. The issues in the present case are very different from the issues which were raised before the Supreme Court in Rukhsana Khatoon’s case. Lastly, learned counsel for the opposite parties refers to a judgment of this High Court in the case of Gupteshwar Singh Vs. The State of Bihar reported in 2007(1) PCCR 59. In the case of Gupteshwar Singh a persons who was not accused in the case was summoned under Section 319 of the Code of Criminal Procedure. The Court while discussing the law and the facts considered Section 319 of the Code of Criminal Procedure and held that summoning an additional accused persons to face trial should be on the basis of some material that would satisfy the court about the constitution of a prima facie offence and commission of that offence by the persons so summoned. This Court finds that the facts and the questions raised in the case of Gupteshwar Singh case is not applicable to the present case. However, one feature is common to all the cases that all the Courts have held that there should be sufficient evidence that would satisfy the Court that the persons should be summoned to face trial on the basis of the evidence that has been lead during the trial. As already held by this Court in the present case the only material is that the 6 petitioners have been named and there is no specific role assigned to them, and as such it is not sufficient to call the petitioners to face trial on an application being filed under Section 319 of the Code of Criminal Procedure. Considering the facts aforesaid, I allow this application and the order dated 20.1.2007, passed by the learned Additional Sessions Judge-cum-Fast Track Court No. 5, Vaishali at Hajipur in Sessions Trial No. 348 of 2002 arising out of Vaishali P.S. Case No. 67 of 2001 is quashed. Sanjay (Sheema Ali Khan, J.)