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1999 DIGILAW 571 (PAT)

Chunnu Sahni v. State of Bihar

1999-07-07

S.K.CHATTOPADHYAYA

body1999
Order What is the ultimate stage for the trial court, who is the Sessions Judge in the instant case, to exercise his power under Section 319 of the Code of Criminal Procedure is a moot question to be decided on the following facts and circumstances. 2. A police case was registered against one Lalji Paswan and the petitioner, Chunnu Sahni on the allegations that they assaulted the informant. Though the allegations were made against both the persons but, after investigation, the police filed charge-sheet only against Lalji Paswan and the name of the petitioner has been shown in the column not sent up for trial. Cognizance was taken and after commitment charges were framed under sections 301, 324 and 307 of the Indian Penal Code against Lalji Paswan only. 3. After examination of altogether seven prosecution witnesses, the case of the prosecution was closed and after recording the statement of Lalji Paswan under Section 313 of the Code of Criminal Procedure the case was posted for hearing and judgment. Thereafter, the prosecution filed a petition on 2.9.98 under Section 319 of the Code and by the impugned order dated 9.9.98 the learned trial court directed that in the interest of justice the petitioner should be put on trial for the commission of offence under the aforesaid Sections. He issued non-bailable warrant of arrest against the petitioner for production for facing trial. 4. Mr. Pashupati Prasad Sinha, learned counsel for the petitioner has raised three points in support of his contention. His first argument is that, so far the petitioner is concerned, he is beyond the reach of Section 319 of the Code as he is not "any person being in the category of an accused". In support of his contention he has relied upon the decision in the case of Chandeshwar Rai and Others Vs. The State of Bihar and Another; PLR 1995 Pat 249. Secondly, it is contended that once the Magistrate did not take cognizance of the offence and discharged the petitioner, the order being judicial in nature, and not being challenged in revision, is final. Under these circumstances, the Sessions Judge could not have invoked the provisions of Section 319 of, the Code. In this context, he has relied upon the decision in the case of Sohan Lal and Ors. Vs. State of Rajasthan, 1991 (1) PLJR 41 (SC). Under these circumstances, the Sessions Judge could not have invoked the provisions of Section 319 of, the Code. In this context, he has relied upon the decision in the case of Sohan Lal and Ors. Vs. State of Rajasthan, 1991 (1) PLJR 41 (SC). Lastly, he submits that when in the instant case the prosecution has closed its case after examining the witnesses and even the statement of sole accused, Lalji Paswan, was recorded under Section 313 of the Code, the learned Sessions Judge could not have invoked the jurisdiction under Section 319 of the Code. 5. Mr. Kameshwar Prasad Sinha, learned A. P. P. for the State, on the other hand, submits that when the trial court was satisfied from the evidence on record that all the prosecution witnesses have deposed against the petitioner that he is the person who inflicted the vital blow in the stomach of the informant but the Investigating Officer, for the reasons best known to him, did not send him up for trial, he was empowered to proceed against the petitioner invoking the jurisdiction under Section 319 of the Code. In support of his contention, he has relied upon the decision in the case of Sayeed Bhagat and Ors. Vs. The State of Bihar and Anr., (1991) 1 PCCR 341. 6. It is well settled that the scope of Section 319 of the Code is only limited to post cognizance stage when the complicity of persons other than the persons named as accused comes to light. Reference, if any, can be made to the case of Rambachan Bind and Ors. Vs. State of Bihar and Ors., 1998(1) BLJR 35 : 1998(1) PLJR 852 . Similarly, if an accused is not sent up by the police to face the trial then the order not issuing summon against such person does not amount to discharge in the eye of law. In the case of Raghubans Dubey Vs. State of Bihar., AIR 1967 SC 1167 it has been held that there cannot be any question of discharge when the accused was not named in the charge-sheet by the police. 7. In the instant case, it is true that after examination of the prosecution witnesses the case was closed and even the statement of accused Lalji Paswan was recorded under Section 313 of the Code. 7. In the instant case, it is true that after examination of the prosecution witnesses the case was closed and even the statement of accused Lalji Paswan was recorded under Section 313 of the Code. At this juncture, on a petition filed by the prosecution the Sessions Judge perused the evidence on record and found that almost all the witnesses have stated that the petitioner Chunnu Sahni had given knife blow to the informant as a result the intestine had come out. According to the learned Sessions Judge, this evidence clearly shows the involvement of the petitioner' and, as such, he was of the opinion that the petitioner should be put on trial for the commission of the said offence. 8. In almost similar circumstances, a learned Single Judge of this Court in the case of Ram Bachan Bind and Ors. (supra) has held that even where an accused was not sent up by the police to face the trial and the person was discharged, Section 319 of the Code has got full application in a case when the trial court on examination of evidence is satisfied that some other person not sent up for trial is also responsible for the commission of the offence. 9. The facts and circumstances in the case of Sohan Lal (supra), in my view, are quite distinguishable. On a report lodged by one Shanti Lal, the police after registering the case investigated the matter and filed the chargesheet against Sohan Lal, Padam Chand, Vishnu Hanuman Chand, Uttam Chand, Vijya Bai and Jiya Bai under Sections 147, 323, 325, 336 and 427 of the Indian Penal Code. The Magistrate took cognizance but at the time of framing charge he found no materials against Vijya Bai and Jiya Bai and, thus, discharged them of all the charges levelled against them. However, charges against Sohan Lal, Padam Chand and Uttam Chand were framed under Section 427 of the Indian Penal Code on the basis of the site inspection and injury report. Subsequently, the Assistant Public Prosecutor filed an application under Section 216 of the Code of Criminal Procedure with a prayer to frame charge against those three persons under Sections 147, 323 and 336 of the Indian Penal Code and thereby prayed for amending the charges. Subsequently, the Assistant Public Prosecutor filed an application under Section 216 of the Code of Criminal Procedure with a prayer to frame charge against those three persons under Sections 147, 323 and 336 of the Indian Penal Code and thereby prayed for amending the charges. After hearing the parties and discussing the evidence the learned Magistrate framed charge• against accused Sohan Lal, Padam Chand and Vishnu under Sections 147, 427, 336, 323 and 325 of the Indian Penal Code. The Magistrate further issued summons through bailable warrant against Vijya Bai and Jiya Bai, Uttam Chand and Padam Chand to face trial. This matter was challenged before the High Court but without success. Thus, the matter was taken to the Apex Court. From the application filed by the Assistant Public Prosecutor, their lordships were of the view that there could be no doubt that what he prayed for was charging the accused under Section 427 of the Indian Penal Code whereunder they were already charged, under sections 147, 323, 325 and 336 of the Indian Penal Code of which they were already discharged. This application, according to their lordships, ex facie did not envisage the appellants Vijya Bai and Jiya Bai, who were wholly discharged under all the above Sections. 10. Thus, as because Vijya Bai and Jaya Bai were discharged of all the charges and no charge existed against them it was held that the application under Section 216 of the Code of Criminal Procedure was not maintainable in their case. The learned Magistrate, according to their lordships, while disposing of the application under Section 216 of the Code only, had no jurisdiction to frame charges against the appellants, Vijya Bai and Jiya Bai. While discussing the jurisdiction of the Court under Section 319 of the Code of Criminal Procedure their lordships interpreted the words in the Section namely "any person being the accused". Interpreting the dictionary meaning of the word accused, it is held that this word can only be used in a case where there are grounds for believing that the accusation or information is well founded. Interpreting the dictionary meaning of the word accused, it is held that this word can only be used in a case where there are grounds for believing that the accusation or information is well founded. As because Vijya Bai and Jiya Bai were already discharged from all the charges by the learned Magistrate, the Supreme Court was of the view that on the application filed by the Assistant Public Prosecutor under Section 216 of the Code, the Magistrate could not have invoked his jurisdiction under Section 319 of the Code because scope of Section 319 is only limited to post cognizance stage. 11. In the present case, on the other hand, what has been noticed is that it is during the trial that the evidence is against the petitioner of direct involvement and, as such, the learned trial court summoned him to face trial. In the case of Nisar and Anr. vs. State of U.P., JT 1995(1) SC 135, while interpreting the scope of Section 319 of the Code their lordships have observed as follows: "The power under Section 319(1) can be exercised only in those cases where involvement of persons other than those arraigned in the chargesheet comes to light in the course of evidence recorded during the enquiry or trial. As that stage has not yet reached the appellants could not have been summoned invoking section 319 of the Code." 12. From the aforesaid decision it is abundantly clear that even where a person has been discharged by the learned Magistrate it could summon subsequently if during trial some evidences transpire against him. Thus, I respectfully disagree with the decision of the case in Chandeshwar Rai (supra). 13. In the instant case, as noticed above, the police after investigation did not send up the petitioner for trial though the allegations were made against him also. In such circumstances, the learned Magistrate only took cognizance of the offence in respect of accused Lalji Paswan and not proceeded against the petitioner. But during trial, when evidences came against this petitioner regarding his complicity the learned trial court in exercising its jurisdiction under Section 319(1) of the Code summoned him. Thus, in my view, no fault can be found out from the order of the trial court. 14. In the facts and circumstances of the case, I find no merit in this case. It is, accordingly, dismissed.