Julekha Khatoon v. The State of Bihar

Patna High Court Cr.Misc. No.28429 of 2012 (2) dt.16-12-2013 2 years by the learned Magistrate, though she claimed to be aged about 15 years only. In the aforesaid statement under Section 164 Cr.P.C., brought on record at Annexure-3, she has supported the prosecution case of her kidnapping for the purpose of her forceful marriage and resultant forceful illicit intercourse by the accused persons. In the aforesaid statement, the alleged victim has named the opposite party no.2 also as one of the culprits. However, opposite party no.2 was not chargesheeted by the I.O. and was not put on trial.

Learned counsel appearing on behalf of the petitioner submits that during the course of trial of other accused persons, as many as seven prosecution witnesses have been examined. The alleged victim as also the informant, examined as P.W.6 and P.W.5 respectively, in their deposition have named the opposite party no.2 as one of the accomplice of other accused persons already facing trial, yet the petition filed on behalf of the petitioner under Section 319 Cr.P.C. for summoning him for facing trial in the aforesaid criminal case has arbitrarily been rejected on wrong notion of law.

Learned Additional Public Prosecutor appearing on behalf of the State of Bihar has fairly submitted that matter requires reconsideration and fresh decision by the learned trial court. However, learned counsel appearing on behalf of the opposite party no.2 has opposed the prayer and has supported the impugned order. According to him, the opposite party no.2 was the Mukhiya of the Gram Panchayat at the relevant time, therefore, he is sought to be implicated in the present case with certain ulterior motive.

In order to appreciate the rival submissions made Patna High Court Cr.Misc. No.28429 of 2012 (2) dt.16-12-2013 3 on behalf of the parties, it would be relevant to reproduce Section 319 Cr.P.C., which reads as follows:-

319. Power to proceed against other persons appearing to be guilty of offence.- (1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed. (2) Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid. (3) Any person attending the Court although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed. (4) Where the Court proceeds against any person under sub-section (1) then – (a) the proceedings in respect of such person shall be commenced afresh, and the witnesses re-heard; (b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when cognizance of the offence upon which the inquiry or trial was commenced.

the Court

From a plain reading of Section 319(1) Cr.P.C. it is apparent that where, during the course of inquiry, or trial of an offence it appears from the evidence that any person not being accused has committed an offence for which he could be tried together with the accused persons already facing trial, then Court may proceed against such person for such offences which he appears to have committed. Whether there is a possibility of conviction of such person or not is not required to be seen at this stage and that can be tested only after complying the mandate of Patna High Court Cr.Misc. No.28429 of 2012 (2) dt.16-12-2013 4 Section 319(4)(a) Cr.P.C. Admittedly, that stage is yet to reach in the present case. Therefore, the learned trial court was not justified in rejecting the petition filed on behalf of the petitioner on the presumption that there is no possibility of conviction of the opposite party no.2 in the instant criminal case. As a matter of fact, while considering a petition filed on behalf of the prosecution at the stage of Section 319(1) Cr.P.C. everything is not required to be pre-judged and pre-decided by the trial court. It appears that the learned trial court has exceeded its jurisdiction in pre-deciding the case of the opposite party no.2 with respect to criminal case in question. Admittedly, other accused persons are facing criminal trial for offences under Section 366A/34 of the Indian Penal Code. The opposite party no.2 can be prosecuted for offence in question with the aid of Section 34 of the Indian Penal Code in view of the materials available on record, which have been indicated in the preceding paragraphs. In the above view of the matter, the impugned order dated 25.1.2012 passed in Sessions Trial No.558 of 2010 by the learned 7th Additional Session Judge, East Champaran, Motihari, cannot be sustained.

For the reasons recorded above, the impugned order dated 25.1.2012 passed in Sessions Trial No.558 of 2010 by the learned 7th Additional Sessions Judge, East Champaran, Motihari, is hereby quashed and set aside and the matter is remitted back to the learned trial court for taking fresh decision in accordance with law, but only after giving opportunity of hearing to both sides.

It is clarified that any observation made in the Patna High Court Cr.Misc. No.28429 of 2012 (2) dt.16-12-2013 5 present order by this Court was only for the purposes of disposal of the present proceeding and shall not prejudice the case of either party for fresh decision of the matter by the learned trial court. (Birendra Prasad Verma, J) mrl. A.F.R.