Deobarti Kunwar v. The State of Jharkhand

------ : : Mr. Gautam Rakesh, APP Mr. Niraj Kishore, Advocate. 8/09.09.2025 Heard learned counsel appearing for the petitioner and learned ------ counsel appearing for the State.

2. Learned counsel appearing for the petitioner submits that the I.A. No.4449 of 2021 has been filed for condonation of delay of 184 days in filing the Criminal Revision.

3. He submits that the petitioner is aged about 77 years and in view of that the delay has been occurred and as such, the delay may kindly be condoned.

4. Learned counsel appearing for the State submits that there is inordinate delay and it has not been explained properly, as such, the delay may kindly not be condoned.

5. In view of the reasons assigned in the I.A. and further considering the age of the petitioner, the delay in filing the Criminal Revision Petition is hereby condoned.

7. As such, I.A. No.4449 of 2021 is allowed and disposed of. Learned counsel for the petitioner and learned counsel for the State address the Court on merit of this case. 1

8. Learned counsel for the petitioner submits that this Criminal Revision Application has been preferred against the order dated

13.02.2019 passed in S.T. No.217 of 2014 by learned Additional Sessions Judge-VI, Garhwa, whereby the petition filed by the petition under Section 319 of Cr.P.C. for issuance of summons against the persons, who were not charge-sheeted, has been rejected by the learned Court.

9. He submits that the FIR against the accused persons has been lodged on 18.02.1997 registered as Nagar Untari P.S. Case No.12 of 1997, corresponding to G.R. No.73 of 1997 for the offences punishable under Sections 147, 148, 149, 302 and 120B of IPC and under Section 27 of the Arms Act.

10. He submits that on 17.02.1997 in the night, ten extremists came in the house of the informant and took away Chandrika Mahto. He submits that the police investigated the case and submitted the charge- sheet on 13.05.1997 under Sections 147, 148, 149, 302 and 120B of IPC and under Section 27 of the Arms Act against 10 accused persons. He further submits that if the accused persons are granted bail, they manipulate the things and in view of that, the petitioner filed a petition under Section 319 of Cr.P.C. which has been rejected by the learned Court by the impugned order. He submits that the learned Court has not rightly appreciated the petition filed under Section 319 of Cr.P.C. The materials are there to summon the accused persons, but the same has been rejected, which is not in accordance with law. As such, the impugned order may kindly be set-aside. 2

11. The learned counsel for the State opposed the prayer and submits that the learned Court has righty passed the order.

12. The learned court has found that belatedly the said petition has been filed and PW-1, PW-2 and PW-3 have already been examined on

05.01.2016 and after such a delay, such petition has been filed.

13. In the case of Hardeep Singh V. State of Punjab & Ors reported in (2014) 3 SCC 92, the Hon’ble Supreme Court has held as under: - “117. We accordingly sum up our conclusions as follows: Questions (i) and (iii) — What is the stage at which power under Section 319 CrPC can be exercised? AND — Whether the word “evidence” used in Section 319(1) CrPC has been used in a comprehensive sense and includes the evidence collected during investigation or the word “evidence” is limited to the evidence recorded during trial? Answer

117.1. In Dharam Pal case, the Constitution Bench has already held that after committal, cognizance of an offence can be taken against a person not named as an accused but against whom materials are available from the papers filed by the police after completion of the investigation. Such cognizance can be taken under Section 193 CrPC and the Sessions Judge need not wait till “evidence” under Section 319 CrPC becomes available for summoning an additional accused.

117.2. Section 319 CrPC, significantly, uses two expressions that have to be taken note of i.e. (1) inquiry (2) trial. As a trial commences after framing of charge, an inquiry can only be understood to be a pre-trial inquiry. Inquiries under Sections 200, 201, 202 CrPC, and under Section 398 CrPC are species of the inquiry contemplated by Section 319 CrPC. Materials coming before the court in course of such inquiries can be used for corroboration of the evidence recorded in the court after the trial commences, for the exercise of power under Section 319 CrPC, and also to add an accused whose name has been shown in Column 2 of the charge-sheet.

117.3. In view of the above position the word “evidence” in Section 319 CrPC has to be broadly understood and not literally i.e. as evidence brought during a trial. Question (ii)—Whether the word “evidence” used in Section 319(1) CrPC could only mean evidence tested by cross- examination or the court can exercise the power under the said provision even on the basis of the statement made in the examination-in-chief of the witness concerned? 3 Answer

117.4. Considering the fact that under Section 319 CrPC a person against whom material is disclosed is only summoned to face the trial and in such an event under Section 319(4) CrPC the proceeding against such person is to commence from the stage of taking of cognizance, the court need not wait for the evidence against the accused proposed to be summoned to be tested by cross-examination. Question (iv)—What is the nature of the satisfaction required to invoke the power under Section 319 CrPC to arraign an accused? Whether the power under Section 319(1) CrPC can be exercised only if the court is satisfied that the accused summoned will in all likelihood be convicted? Answer

117.5. Though under Section 319(4)(b) CrPC the accused subsequently impleaded is to be treated as if he had been an accused when the court initially took cognizance of the offence, the degree of satisfaction that will be required for summoning a person under Section 319 CrPC would be the same as for framing a charge*****. The difference in the degree of satisfaction for summoning the original accused and a subsequent accused is on account of the fact that the trial may have already commenced against the original accused and it is in the course of such trial that materials are disclosed against the newly summoned accused. Fresh summoning of an accused will result in delay of the trial therefore the degree of satisfaction for summoning the accused (original and subsequent) has to be different. Question (v)—Does the power under Section 319 CrPC extend to persons not named in the FIR or named in the FIR but not charge-sheeted or who have been discharged? Answer

117.6. A person not named in the FIR or a person though named in the FIR but has not been charge-sheeted or a person who has been discharged can be summoned under Section 319 CrPC provided from the evidence it appears that such person can be tried along with the accused already facing trial. However, insofar as an accused who has been discharged is concerned the requirement of Sections 300 and 398 CrPC has to be complied with before he can be summoned afresh.”

13. In the light of aforesaid judgment, Section 319 Cr.P.C. is a discretionary and an extra-ordinary power to the court and it is required to be exercised sparingly. In the said case, the Hon’ble Supreme Court has held that though only a prima facie case is to be established from the evidence led before the court, not necessarily 4 tested on the anvil of cross-examination, it requires much stronger evidence than mere probability of his complicity. The court is required to examine the version of the prosecution witnesses in light of this observation of the Hon’ble Supreme Court.

14. In view of the above principal, the learned Court has not found material against the accused person and the impugned order has been passed.

15. In view of the above, this Cr. Revision Petition is dismissed.

16. This order will not prejudice the mind of the Court, if in course of the trial; further materials come against other accused persons to call them under Section 319 of Cr.P.C. (Sanjay Kumar Dwivedi, J.) R.Kumar 5