Bihari Sahu v. State Of Bihar & Ors.

whereunder set aside the order dated 20.06.2008 passed by Sri B.Ram, Judicial Magistrate, 2nd Class, Buxar in Complaint Case No.647C of 2006, Trial No.162 of 2007 permitting application of Section 319 of the Cr.P.C. in summoning the petitioners, Bihari 2 Sahu, Bablu Kumar Sahu, Nehru Sahu and Piyush Sahu.

3. In order to appreciate the point in issue in its right perspective, first of all facts of the case is to be dealt with:- Opposite No.2/complainant filed complaint petition alleging inter-alia that while he was returning after attending the case from Court and as soon as reached near Nawatoli Chowk, the accused persons named therein along with 10-12 unknown persons intercepted them and on order of Bihari Sahu. Bablu Kumar Sahu gave iron rod blow over his head followed by Nehru Sahu with rod. Bihari Sahu and Nehru Sahu also assaulted him with legs. On an alarm raised by the complainant so many persons assembled and on account thereof his life was saved.

4. On the basis of the aforesaid complaint petition an enquiry was entrusted and during course thereof, cognizance of an offence punishable under Sections 323, 341 of the IPC was taken up and out of four accused named in the complaint petition, only Bihari Sahu was summoned to face trial. During conduction of trial, as is evident, four witnesses including doctor was examined and on the basis thereof, O.P.No.2/complainant had filed petition under Section 319 of the Cr.P.C. to summon proposed accused Bablu Kumar Sahu, Nehru Sahu, Piyush Sahu as well as also prayed for addition of the charge under Sections 313, 325 of the 3 IPC in the background of the injury having been shown grievous in nature by the doctor.

5. It appears that by composite order dated 20.06.2008, the learned Magistrate had rejected the prayer of the Opposite Party No.2/complainant on account of which Cr.Revision No.181 of 2008 was filed at his behest which was ultimately allowed vide order dated 24.08.2009 by setting aside the composite order passed by the learned trial Court on account of which, petitioners have preferred instant revision.

6. Although instant revision has been filed on behalf of four petitioners but during course of submission petitioner Bihari Sahu has raised grievance on limited point challenging the order of the Revisional Court to the extent of application of Section 216 of the Cr.P.C as he was on record since before (arrayed) as an accused while the remaining three petitioners have challenged the order of the Revisional Court in its entirety.

7. Contention on behalf of the petitioners(No.2 to 4) is that the order of the Revisional Court allowing summoning of the petitioners in terms of Section 319 of the Cr.P.C. happens to be bad, illegal and improper in the background of the fact that petitioners named already figured in complaint petition and on account thereof they became an accused in this case. After 4 conduction of enquiry as they were not summoned to face trial, that tantamounts to discharge and on account thereof they cannot be subsequently summoned. In an alternative, it has also been submitted that non-summoning of petitioners at an initial stage virtually happens to be guided in terms of Section 203 of the Cr.P.C. against which revision as provided under Section 398 of the Cr.P.C found to be maintainable. Non challenging of the order concluded the matter in its finality and on account thereof, now the court was not at all competent to allow the prayer made on behalf of the complainant.

8. With regard to application of Section 216 of the Cr.P.C., it has been submitted that from the complaint petition itself, it is evident that the complainant was not at all examined by the doctor rather he got first aid from a medicine shop and in the aforesaid background neither the medical evidence nor the evidence of so called doctor found to be reliable.

9. Repelling the same, it has been submitted on behalf of Opposite Party no.2 that application of Section 319 is post cognizance opportunity to be exercised by the court whenever there happens to be presence of some more persons than the accused facing trial, to be involved during commission of crime, as deposed by the witnesses. 5

10. In likewise manner, it has also been submitted that addition of charge happens to be based upon the evidence available on the record which could be materialized even before pronouncement of judgment. The sanctity of the evidence of the witnesses is not at all to be scrutinized during course thereof. It happens to be matter of trial and the scrutiny of reliability of the evidence is only permissible during course of judgment. So submitted that the order passed by the Revisional Court happens to be in accordance with law and is fit to be confirmed.

11. Section 319 of the Cr.P.C. read as follows: “Power to proceed against other persons appearing to be guilty of offence.—(1) Where, in the course of any injury 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 the Court took cognizance of the offence upon which the inquiry or trial was commenced.” 6

12. On bare perusal of Section itself, it is apparent that neither it is being commanded by the classification of cases nor the stage of case rather its applicability is found to be during course of an enquiry or trial proceed in accordance with law by the court. That means to say, the Section is not at all bifurcated so far its applicability is concerned, under complaint case, police case, summons case, warrant case, Sessions Case. That means to say the scope of Section 319 of the Cr.P.C. could be found applicable in all kinds of cases subject to pre-condition that the persons who are to be summoned, should not be before the court.

13. Filing of complaint is a process acknowledged by the court, a forum to make an allegation directly before the court. It may be against an individual so named or it may be against unknown. After filing of the complaint in accordance with Section 200 of the Cr.P.C., three options are found to be available before the court (a) to direct for institution, registration and investigation of the case in terms with Section 156(3) Cr.P.C., (b) to take cognizance of an offence in terms of Section 190 of the Cr.P.C. or (c) to direct an enquiry in terms of Section 202 of the Cr.P.C. While opting Clause-A, the Magistrate is not expected to take cognizance of the allegation while proceeding with either of remaining, the Magistrate takes cognizance of the allegation and 7 the subsequent conduct will depict whether accused has been found to be summoned or before that, an enquiry has to be taken. The purpose of enquiry is only confined to the extent of finding out prima-facie case against accused and nothing more.

14. Under the Criminal Procedure Code while proceeding with the complaint case, the status of the accused is not found due recognition like a police case, till summoning and that happens to be reason behind that his appearance is found de- recognized during course of inquiry.

15. The aforesaid status has properly been identified by the Hon’ble Apex Court while dealing in Dr. S.S.Khanna, Appellant v. Chief Secretary, Patna and another reported in AIR 1983 SC 595 relevant paras 13 and 14:- “13. Even when an order of the Magistrate declining to issue process under Sec. 202 is confirmed by a higher court, the jurisdiction of the Magistrate under Section 319 remains unaffected if other conditions are satisfied. In Municipal Corporation of Delhi v. Ram Kishan Rohtagi, (1983) 1 SCC I : (AIR 1983 SC 67) to which one of us (Venkataramiah, J.) was a party, this Court had to deal with the scope of Sec. 319. In that case a Food Inspector filed a complaint before a Magistrate requesting him to take action against the manager and all the directors of a company which was engaged the business of manufacture of a certain brand of toffees for violating certain provisions of the Prevention of Food Adulteration Act. When the Magistrate proceeded to take action against the accused, they approached the High Court under Section 482 of proceedings. The High Court quashed the proceedings against all of them on the ground that there was no the Code with a prayer for quashing 8 averment that any of them was in charge of the affairs of the company which was manufacturing the toffees. On appeal to this Court, the order of the High Court in so far as the manager was concerned was set aside as from the very nature of his duties it was clear that he was liable to be proceeded against for the offence said to have been committed by the company. But as regards the directors, the order of the High Court was upheld as at that stage it was found that there was not sufficient material to proceed against them. But it was, however, made clear that if the prosecution was able to produce evidence against any of those directors at a later stage it was open to the trial court to proceed against him under Sec. 319 of the Code. In that connection this Court observed page 8 (of SCC) : (at p. 71 of AIR) thus: "This provision gives 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. This provision was also the subject-matter of a decision by this Court in Joginder Singh v. State of Punjab (1979) 1 SCC 345 :(AIR 1979 SC339) where Tulzapurkar, J. speaking for the Court observed thus (at page 349): A plain reading of Section 319 (1) which occurs in Chapter XXIV dealing with general provisions as to inquiries and trials, 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 against whom there appears during trial sufficient evidence indicating his involvement in the offence, as an accused and direct him to be tried along with the other accused, . ............... In these circumstances, therefore, 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 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 exist for taking cognizance against the other person against whom action has not been taken. More than this we would not like to say anything further at this stage. We leave the entire matter to the discretion of the court 9 concerned so that it may act according to law. We would, however, make it plain that the mere fact that the proceedings have been quashed against respondents 2 to 5 will not prevent the court from exercising its discretion if it is fully satisfied that a case for taking cognizance against them has been made out on the additional evidence led before it."

14. It is thus clear that it cannot be said that the magistrate had no power to proceed against the appellant in this case. On looking into the record we are of the view that the magistrate had good reason to summon the appellant under Section 319 of the Code as it appears from the evidence led at the trial that there was a strong case made out against the appellant for joining him in the criminal case as an accused. It is however, not necessary to refer to this aspect of the matter in detail having regard to the nature of the order we propose to pass in this case.”

16. Thus, the order passed by the revisional court is found to be in accordance with law. Consequent thereupon, instant revision petition is found to be devoid of merit and is accordingly rejected. (Aditya Kumar Trivedi, J) Patna High Court, Dated 17th July, 2013 Brajesh Kumar/AFR