Naser Ali Mirza v. State of West Bengal — 1999 DIGILAW 288 (CAL)

JUDGMENT : - Gitesh Ranjan Bhattacharjee, J.: This revisional application is directed against the order of the learned Additional Sessions Judge, 1st Court, Burdwan by which he directed for issuing warrant of arrest against the petitioner Nasu Mirza (@ Naser Ali Mirza) under section 319 Cr.P.C. in connection with the S.C. Case no. 65 of 1992 (S.T. 15/94). It appears that the said Sessions Case arose out of the charge-sheet submitted by police under sections 147/148/149/324/326/307 IPC after completion of investigation in the Mangolkote Police Station case no. 2 dated 2.10.88 under the aforesaid sections. It also appears that in course of the sessions trial, by the impugned order the petitioner has been required under section 319 Cr.P.C. to face charge under sections 148/149/307/323 IPC. The sessions case, it appears, was registered in 1992. The learned trial court examined P.W.1, Sk. Akbul on 5.12.94 and thereafter P.W. 2 to P.W. 5 were examined on 7.9.98 and 8.9.98, that is, about four years after the first prosecution witness was examined. On• 8.9.98 the prosecution filed an application before the trial court for issuing process against the present petitioner under section 319 Cr.P.C. on the basis of the evidence of some of the P.W.s already examined. The petition was disposed of by the impugned order dt. 14.1.99 and the trial court directed for issuing process against the present petitioner under section 319 Cr.P.C. 2. It is inter alia submitted on behalf of the petitioner that the trial court was not justified in issuing process under section 319 Cr.P.C. against the present petitioner, particularly at this distance of time. The alleged occurrence took place in October 1988 and the FIR was also lodged on the date of occurrence. The matter was thus pending for more than 10 years since the date of the occurrence when the trial court passed the order under section 319 Cr.P.C. It is needless to mention that the present petitioner was not made an accused in' the charge-sheet filed after investigation which indicate that there was no sufficient material against the petitioner at that stage for implicating him as an accused in the case. There is no doubt that section 319 Cr.P.C. empowers the court to rope in any person for facing trial if it appears to the court from the evidence that such person has committed an offence for which he could be tried together with the accused persons. It is needless to say that in exercising this discretionary power under section 319 the court will have to be circumspect. The time that has already elapsed after the process of law was set in motion in respect of the offence, the nature and gravity of the offence, the nature of the impact which the exercise of discretion is likely to have on the prospect of disposal of the case within a reasonable time, and also the nature of the evidence, etc., are required to be kept in view in determining whether the discretion under section 319 Cr.P.C. should be exercised at a particular stage. The Supreme Court in Delhi Municipality vs. Ram Krishan, 1983 Cr. L.J. 159 in connection with section 319 Cr.P.C. has observed that this is really an extraordinary power which is conferred on the court and which should be used very sparingly and only if compelling reasons exist for taking cognizance against whom action has not been taken. In Smt. Minati Das vs. Radha Kanta Patra, 1994 Cr.L.J. 305 this court observed after discussing Supreme Court decisions that the decisions of the Supreme Court clearly indicate that for taking action under section 319 Cr.P.C. against any particular person there must be sufficient evidence so as to make out a strong and compelling case against the particular person and that mere existence of some nominal evidence raising at best only a feeble case languishing in the domain of speculative suspicion will not justify action under section 319 Cr.P.C. In paragraph 6 of the said decision it has been observed that the evidence which may give rise to a grave suspicion or presumption justifying framing of charge may not necessarily be sufficient for an action under section 319 Cr.P.C. unle3s such evidence projects a probative effect rather than being merely nominal or marginal. It is further observed there that indeed it is not necessary that the evidence must project a conclusive case, but it should project a reasonably strong case for taking action under section 319 Cr.P.C. The witnesses who now involve the present petitioner at the trial in the present case do not virtually attribute any serious specific overt act to the petitioner. The learned Advocate for the State has referred to two decisions of the Supreme Court, one in Joginder Singh vs. State of Punjab, AIR 1979 SC 339 and the other in Mahant Amdr Nath vs. State of Haryana, AIR 1983 SC 288 in support of his submission that the trial court has the jurisdiction and discretion to summon any person to face trial as an• accused on the basis of the materials that may transpire from the evidence. Indeed that power and the discretion of the trial court has not been denied. The question is whether' in the facts and circumstances of the particular case and at the particular stage it is appropriate to exercise such discretion. The learned Advocate for the petitioner on the other hand has relied upon certain decisions, namely, the decisions of this court in Golam Mondal vs. Nazam Hossain, 1987 (2) Crimes 307 : 1987 Cr. L.J. 729, Fakir Chand vs. State, 1986 (II) CHN 376 and the decision of the Patna High Court in Gopal Krishna vs. State of Bihar, 1987 Cr.L.J. 1487. The question that has to be considered now is whether the inclusion of the present petitioner as an accused in the case at this stage is a sound exercise of discretion and is conducive to the cause of justice. It is also to be mentioned here that over the self-same incident, it appears, an FIR was lodged earlier on the self-same date ,and a counter case is pending. The evidence that has been adduced in the present case shows rather a marginal involvement of the petitioner and not any decisive or leading role on his part. It is also to be mentioned here that over the self-same incident, it appears, an FIR was lodged earlier on the self-same date ,and a counter case is pending. The evidence that has been adduced in the present case shows rather a marginal involvement of the petitioner and not any decisive or leading role on his part. Having regard to the nature of the case, the pendency of a counter-case, the nature of the evidence forthcoming against the petitioner coupled with the fact that a long period of more than 10 years has already elapsed since the date of incident and the number of witnesses who have been already examined in the case and also that if the trial is to start de novo now for bringing the petitioner within its fold, there is likelihood almost to the point of certainty that there would be further inordinate delay in the disposal of the case which indeed is not considered desirable in the facts and circumstances of the case. In the circumstances by balancing the factors relevant to the matter it seems to me that the ends of justice will be better served if the trial is concluded early instead of relegating it to the limbo of further durational uncertainty by adding the petitioner at this stage as an accused under section 319 Cr.P.C., and starting the trial de novo after so many witnesses have already been examined, particularly in view of the nature of the case, the existence of case and counter case, the marginal involvement of the petitioner as indicated and the length of time already elapsed. 3. Accordingly, I quash the impugned order of the learned court below dated 14.1.99 and direct the learned trial court not to proceed against the petitioner at this stage and to conclude the trial of the accused persons who are already facing trial, with utmost expedition. The revisional application stands disposed of accordingly. Revisions allowed.