BIJAY RAI v. THE STATE OF BIHAR

and 366A IPC against the three FIR named accused, including the petitioner, for having kidnapped minor Sonu Kumari at about 5 P.M. on 3.10.2002 when she had gone to attend the call of nature. After due investigation the police submitted a charge sheet only against accused Saroj Rai under sections 366 and 366A IPC and the two other FIR named accused, including the petitioner, were not sent up for trial and accordingly cognizance was taken on

10.5.2004 only against accused Saroj Rai and the two others including the petitioner were discharged. Subsequently the case of accused Saroj Rai was committed to the Court of Sessions for trial. 2 Charges were framed on 17.6.2005 against Sanjay Rai alone under the aforesaid sections. It will not be out of place to mention here that the father of the victim girl , one Yogendra Prasad Yadav, had filed a protest petition on 29.11.2002 against the Investigating Officer. It further appears that at the trial after five prosecution witnesses including the informant had been examined it was found that they fully supported the prosecution case and the complicity in the crime of discharged accused Sanjay Rai and Bijay Rai who along with Saroj Rai had allegedly kidnapped the Sonu Kumari came to light. On the basis of the evidence coming on record showing the complicity of the petitioner and Bijay Rai in the crime a petition was filed by the prosecution to summon Bijay Rai and Sanjay Rai under section 319 Cr.P.C. which by the impugned order dated 3.10.2007 was allowed after hearing the parties and perusing the rejoinder filed by the defence. Assailing the impugned order, it was sought to be submitted by the learned counsel for the petitioner that he had falsely and intentionally been made an accused due to malice and grudge arising out of previous enmity. In this context it was submitted that the falsity of the case would be apparent from the perusal of the statement of the Chaukidar which admittedly does not constitute any offence so far the petitioner is concerned. It was further submitted that Shankar Rai (PW 2) Roop Narain Rai (P.W. 3) and Dudhnath Rai (P.W. 4) on the basis of whose information 3 before Yogendra Pd. Yadav the petitioner and others who were made accused in this case were examined by the police in course of investigation and in their statement they did not support the participation of the petitioner and to the contrary they had stated that the girl was having a love affair with accused Saroj Rai since long and she had left her house of her own accord with Saroj Rai. However, these very witnesses who happen to be the relations of the victim girl have tried to support the case of the prosecution and have given a complete go bye to their statement under section 161 Cr.P.C. In support of the factum of the alleged love affair between the victim girl and Saroj Rai it was submitted that in course of investigation the police had procured and seized under a seizure list several letters written by the victim girl to Saroj Rai and as such in this case involvement of the petitioner appears to be doubtful. Other witnesses examined in course of the investigation have also appear to support the case of long drawn love affair between the victim girl and Saroj and it was as a result thereof that the petitioner and Bijay were not sent up for trial. It was further submitted that during the pendency of the commitment proceedings before the learned Chief Judicial Magistrate, Saran at Chapra, the victim girl Sonu Kumari filed a compromise petition with accused Saroj Rai on 4.5.2005, to the effect, that she was a major and had solemnized marriage with Saroj of her own sweet will and volition and a daughter had been born out of the wedlock and that the case had been filed by her father 4 was a false one. Reference has also made to cases filed by Sanjay Rai, brother of the petitioner, against Yogendra Pd. Yadav and Dudhnath Rai, father and uncle of the victim girl, wherein police after investigation submitted charge sheet against the accused and it was out of the grudge resulting of the said case that the petitioner had been falsely implicated. So far as the submission on behalf of the petitioner regarding the contrary statement under section 161 Cr.P.C. of the P.Ws. is concerned, it must be stated that the word “evidence” envisaged in section 319 Cr.P.C. is the evidence tendered during the trial of the case. The material placed before the committal court cannot be treated as evidence. Reference may be placed on the decision of Raj Kishore Prasad Vs. State of Bihar reported in (1996) 4 SCC 495. Therefore, this point is answered against the petitioner. The Apex Court in Michael Machadeo Vs. The Central Bureau of Investigation, reported in (2000)3 SCC 262 observed that the power under section 319 Cr.P.C. is discretionary and should be exercised only to achieve criminal justice and in doing so judicial exercise is called for keeping conspectuous of the case. It further observed that an order is not required to be made mechanically merely because some evidence has come on record implicating the person sought to be added as an accused. Now applying the aforesaid text of the facts of the aforesaid case it appears that the petitioner herein was named in 5 the statement of the Chaukidar and although in course of investigation they allegedly did not name the petitioner and Bijay Rai as accomplices in the crime yet in Court P.Ws. 1 to 4 have categorically stated about the involvement of the petitioner and Bijay in the act of kidnapping of Sonu Kumari. In Jogender Singh Vs. State of Punjab (AIR 1979 SC 339) it was observed that once the Sessions Court is properly seized of a case as a result of the committal order against some accused under section 319(1) Cr.P.C. such court can add any person, not an accused before it, who appeared to be involved in the crime from the evidence led during the trial, as an accused, and direct him to be tried along with the other accused. The expression “any person not being an accused” includes a person who has been dropped by the police during investigation and against whom the evidence comes before the he is also involved in the offence. See Municipal Corporation Vs. R.K.Rohtagi (AIR 1983 SC 67) and would also include a person against whom the proceedings have been quashed. The learned trial court on perusing the materials on record formed an opinion that the allegations disclosed prima facie a case attracting penal action against the petitioner and Bijay Rai and chose to proceed against those persons by summoning them under section 319 Cr.P.C. In my opinion I do not find any apparent illegality or impropriety in the impugned order . Accordingly I find no merit in 6 this application which is dismissed. Patna High Court, Patna. Dated : The 15th of May, 2009 Sanjay Pd./A.F.R. (Abhijit Sinha, J.)