Patna High Court · 2012
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.1155 of 2013 ====================================================== 1. Dhrub Prasad S/O Late Shital Prasad Resident Of Village- Pachpakariya, P.S.- P.B. Nagar, District- Gopalganj 2. Brijkishore Manjhi S/O Sri Dhanraj Manjhi Resident Of Village- Alapur, P.S.- Manjhagarh, District- Gopalganj 3. Binda Prasad S/O Bhadai Prasad Resident Of Village- Alapur, P.S.- Manjhagarh, District- Gopalganj Versus .... .... Petitioner/s 1. The State Of Bihar 2. Bhagmani Devi wife of Kamal Prasad, resident of village Pachpakadiya P..S. G.B.Nagar District Siwan. .... .... Opposite Party/s ====================================================== Appearance : For the Petitioner/s : Mr. Yogesh Chandra Verma, Sr. Adv. Mrs. Prem Sheela Pandey, Adv. For the Opposite Party/s : Mr. Sucheta Yadav, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE SHIVAJI PANDEY ORAL ORDER 5 05-08-2013 Heard learned counsel for the petitioner and the State. In this case, petitioners are challenging the order dated 9th October 2012 passed in Sessions Trial No. 393 of 2008, arising out of Siwan Mufassil P.S.Case No. 268 of 2007, registered for offences u/s 364, 302/34 IPC and 27 of the Arms Act issuing summons to the petitioners to stand the trial.
Legal Reasoning
From the FIR it appears that Bhagmani Devi, O.P.No.2 lodged an FIR where it has been specifically stated that on 1st November 2007 at 8 hrs. in the morning, 6/7 persons came to her house on motor cycle who were identified as Dhrublal Patna High Court Cr.Misc. No.1155 of 2013 (5) dt.05-08-2013 2/5 Prasad, @ Dhrub Prasad, Ex-Mukhiya, Brij Kishore Majhi and Binda Prasad and others. It has been alleged that Dhrublal saidthe informant about the bad condition of her son in-law asked the informant to allow her son to go along with them whereupon the informant had shown her desire to go along with them but the said Dhrublal made her understood that her son should go with them and there was no need for the informant to go. Son of the informant went along with Dhrublal Prasad and his associates. When he did not turn up, the informant approached Dhrublal but he was not available at residence but she heard the rumor about killing of her son, to find out the whereabouts of her son, she went to different places. On 5th July 2011 a telephone call was received at village Alapur from village Orma that her son had been killed and engraved, which was informed to her . On hearing this her nephew came to her house. An FIR was instituted vide Sare Muffasil P.S.Case No. 268 of 2007 for offences u/s `364, 302/34 IPC. Police investigated the case and did not submit charge-sheet against the petitioners, confined the charge-sheet against Ramdas Tiwary. During the trial altogether eleven witnesses were examined out of them P.W.7 Raju Kumar in his examination in- chief has taken name of the accused persons and there is no cross- examination on that point. P.W.8 Bhagmani Devi, has also taken Patna High Court Cr.Misc. No.1155 of 2013 (5) dt.05-08-2013 3/5 the name of petitioners and gave vivid picture of incident and she also stood to cross-examination replied fairly. Counsel for the petitioners has confined his argument and stated that while deciding the case u/s 319 of Code of Criminal Procedure (in short, „Code‟) the court was required to be confined to the materials that came during the trial and he was not required to travel to the materials that has come in the FIR or during investigation. It will be essential to examine the provision of section 319 of the Code to itself to arrive at right conclusion as to whether the trial court has applied the right principle while exercising the power under Section 319 of the Code and rightly summoned the petitioner to stand the trial. It is relevant to quote Section 319 of the Code which is 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. Patna High Court Cr.Misc. No.1155 of 2013 (5) dt.05-08-2013 4/5 (3) Any person attending the Court, although not under arrest or upon a summons may be detained by such Court for the purpose of 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.” On bare reading of Section 319 of the Code it appears that the court may exercise the power under section 319 of the Code where in course of enquiry or trial it appears from the evidence that any person not being an accused had committed the said offence for which such person could be tried. The scope and parameter of Section 319 of the Code came for consideration before this Court in the case reported in 2013(3) PLJR 145 (Ajay Choudhary vs. State of Bihar) and t his Court summarized the ingredients in Para-19 of the judgment which is as follows: ‘Para:19. From the aforesaid judgments the following test emerges for summoning the person to stand the trial. The persons was not charge-sheeted by the police nor the cognizance was taken against the Patna High Court Cr.Misc. No.1155 of 2013 (5) dt.05-08-2013 5/5 person concerned but during the trial evidences have come against the persons so summoned and quality and quantity of the evidences which gives an inference of probability or likelihood of conviction, the suspicion even the strong suspicion, cannot be a ground to exercise the discretionary power of the court‟. This Court feels that the court below has not properly examined the matter in terms of Section 319 of Cr. P.C. as he was required to go in detail and in a mechanical manner the court has passed the order. Accordingly, the order darted 9th October 2012 is set aside and the court below is directed to pass a fresh reasoned order considering the evidence of prosecution witness, recorded during trial of the case. This Court is not giving any opinion on merit. The court will have full say in deciding the case afresh. The court should pass the order within one month from the date of receipt/production of copy of this order.
Decision
With the above observations, this case is disposed of. Jay/- (Shivaji Pandey, J)