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2001 DIGILAW 102 (PAT)

Ajay Kumar Rana v. State Of Bihar

2001-02-06

INDU PRABHA SINGH

body2001
Judgment 1. This application under Secs. 397 and 401 of the Code of Criminal Procedure, 1973 (in short the Code) is directed against the judgment dated 2-12-1998 passed by the learned Sessions Judge, Nawadah in Cr. Revision No. 67/98 by which while allowing this revision case he set aside the order dated 24-4-1998 passed by Shri Ramashray, Judicial Magistrate, Ist Class, Nawada, whereby the learned Magistrate has been pleased to order for issuing summons against opposite party Nos. 2 to 6 under Sec. 319 of the Code. 2. From the facts of the case it appears that the petitioner had filed a complaint case (Complaint Case No. 439/96) against the aforesaid persons as also against one Satyadeo Prasad. In the complaint petition he had alleged that these persons in conspiracy with each other had created a forged and fabricated document purported to be "Yaddast" said to be executed by one Ratan Ram, son of Meghu Ram. After an enquiry under Sec. 192 of the Code the cognizance of offence was, however, taken by the learned Magistrate only against the accused Satyadeo Prasad. After recording of the evidence of four witnesses before framing of the charge the petitioner had filed a petition in the Court of the learned Judicial Magistrate to summon opposite party Nos. 2 to 6 under the provisions of Sec. 319 of the Code. The evidence of four witnesses examined before the charge disclosed that all the accused persons including opposite party Nos. 2 to 6 had conspired together and had manufactured forged documents. The learned Magistrate on the consideration of the evidence on record and the defence put up by the accused Satyadeo Prasad was pleased to order for the issue of summons against opposite party Nos. 2 to 6 under the provisions of Sec. 319 of the Code. 3. Being aggrieved by this order these persons preferred a revision petition (Cr. Revision No. 67/98) before the learned Sessions Judge, Nawadah who by his order dated 2-12-1998 set aside the order of the learned Magistrate for issuing summons against opposite party Nos. 2 to 6. It is against this order that the present revision application has been filed. 4. On behalf of the petitioner it has been contended that the order passed by the learned Sessions Judge is bad in law and wrong on facts. 2 to 6. It is against this order that the present revision application has been filed. 4. On behalf of the petitioner it has been contended that the order passed by the learned Sessions Judge is bad in law and wrong on facts. The four prosecution witnesses examined before charge have fully supported the case of the prosecution about the conspiracy hatched by opposite party Nos. 2 to 6 with Satyadeo Prasad in manufacturing the forged documents. There was sufficient evidence on record pointing towards the complicity of opposite party Nos. 2 to 6 also in the commission of the alleged offence. On these grounds amongst others it has been contended that the judgment passed by the learned Sessions Judge on 2-12-98 be set aside and the order of the learned Judicial Magistrate dated 24-4-1996 be restored. 5. The parties have been heard at length on the various questions of law raised in this case. From the order passed by the learned Magistrate, it appears that he has taken into consideration the evidence of four witnesses examined before the framing of the charge and had come to the conclusion that there were materials in the evidence to show the complicity of opposite party Nos. 2 to 6 in the commission of the alleged offence. Accordingly, he had passed the order for issuance of summonses to these opposite parties. When the matter came before the learned Sessions Judge in Criminal Revision No. 67/98 he heard the parties and in paragraph No. 5 of his judgment he has observed as follows :- "5. In the complaint petition and also in the evidence, it has been said that all the accused persons wanted to grab the land in question and therefore, have forged and fabricated "Yaddast". On considering these facts cognizance of the offence was taken against Satya Devo Pd. only. In course of examination before charge the witnesses have also not made it clear as to what role these persons had played in creating a forged document. Therefore, it is not clear as to what offence they had committed. Under these circumstances issue of summons u/S. 319, Cr. P.C. against Shrawan Kumar, Shanti Devi, Sunil Kumar, Pramod Kumar and Suresh Prasad is not proper. Therefore, this revision petition is allowed and the impugned order is set aside." 6. Therefore, it is not clear as to what offence they had committed. Under these circumstances issue of summons u/S. 319, Cr. P.C. against Shrawan Kumar, Shanti Devi, Sunil Kumar, Pramod Kumar and Suresh Prasad is not proper. Therefore, this revision petition is allowed and the impugned order is set aside." 6. From the aforesaid it would appear that the learned Sessions Judge was pleased to set aside the order passed by the learned Magistrate summoning opposite party Nos. 2 to 6 on the ground that the witnesses has not made it clear as to what role these persons had played in creating a forged document. It may be mentioned here that at this stage only prima facie case has to be found out and it does not call for a detailed examination of the allegations made against the accused persons individually and the evidence in support thereof. At this stage the evidence is not to be scrutinised to find out whether the prosecution has been able to prove the charges against the accused or not. That stage will come in the course of the trial of the accused. At present it has only to be found out whether a prima facie case against all the accused persons has been made out or not. So far the allegation against the opposite party Nos. 2 to 6 are concerned they are said to have conspired with Satya Deo Prasad in forging certain documents. The offence of criminal conspiracy has been defined under Sec. 120-A of the Indian Penal Code. It lays down that when two or more persons agree to do or cause to be done an illegal act or an act which is not illegal by illegal means such an agreement is designated a criminal conspiracy. According to proviso of Sec. 120-A no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof. As per the explanation given to this section it is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object. 7. From the aforesaid it would appear that if two or more persons agree to do an illegal act such an agreement is designated a criminal conspiracy. As per the explanation given to this section it is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object. 7. From the aforesaid it would appear that if two or more persons agree to do an illegal act such an agreement is designated a criminal conspiracy. At this stage as pointed out above it is not necessary to spell out what role each of the conspirator played in the commission of the alleged offence that will be the subject-matter of the trial of the conspirator. Hence the aforesaid observation made by the learned Sessions Judge does not appear to be in confirmity with the law. 8. On behalf of the opposite party it has seriously been contended before me that opposite party Nos. 2 to 6 were named in the complaint petition and since in the evidence before charge P.Ws. 1 to 4 had named these persons also they cannot be summoned as accused in this case with the help of Sec. 319 of the Code. In other words it has been contended that once those persons had figured as accused in the case at one stage or the other they got out of the reach of Sec. 319 of the Code. In this connection they have relied upon paragraph 33 of the judgment of the Hon ble Supreme Court in the case of Sohan Lal V/s. State of Rajasthan, AIR 1990 SC 2158 : (1990 Cri LJ 2302). In particular my attention has been drawn to the following observation made in paragraph 33 of this judgment, namely that once a person is found to have been the accused in the case he goes out of the reach of Sec. 319. On the strength of this decision it has been contended on behalf of the opposite party that they could not have been summoned by the learned Magistrate when at stage of cognizance it was not taken against them and the order of cognizance was only confined to Satya Deo Prasad. 9. This contention on behalf of the opposite party has been seriously challenged on behalf of the petitioner. In support of their contention they have placed reliance on the case of Kishun Singh V/s. State of Bihar, 1993 BBCJ (SC) 54 : (1993 Cri LJ 1700). 9. This contention on behalf of the opposite party has been seriously challenged on behalf of the petitioner. In support of their contention they have placed reliance on the case of Kishun Singh V/s. State of Bihar, 1993 BBCJ (SC) 54 : (1993 Cri LJ 1700). According to them in this case it has been held that even a person who has been discharged erlier could also be summoned in exercise of the power under Sec. 319 of the Code provided from the evidence on record it appears that he has committed an offence along with other accused facing the trial. It has been further submitted on behalf of the petitioner that "any person not being the accused" occurring in Sec. 319 of the Code refers to such persons who is not facing the trial as an accused. The word "accused" in this section refers to the person or persons who is or are facing inquiry or trial at the time when the question for addition of an additional accused under Sec. 319 is being considered. On behalf of the petitioner it has also been pointed out that the expression "any person not being the accused" includes the person who has not been summoned to face the trial after an inquiry under Sec. 202 of the Code or who has been discharged earlier in the proceeding. Learned Counsel for the petitioner has taken pains to point out that the decision in the case of Sohan Lal (1990 Cri LJ 2302) (supra) was noticed by the Hon ble Supreme Court in the case of Kishun Singh (1993 Cri LJ 1700) (supra) in which it was held that even a person who has been discharged earlier can also be summoned to face the trial if the evidence recorded during the course of the trial shows his complicity in the crime in question. In this connection my attention has also been drawn to a Bench decision of this Court in the case of Bishwanath Tata V/s. State of Bihar, 1994 (1) Cri C 7 (Pat). The scope of the power under Sec. 819 of the Code had come up for consideration before this Bench. On careful examination of various decisions referred in it, this Bench held that the expression "any person not being the accused" refers to such peson who is not facing the inquiry or trial as an accused. The scope of the power under Sec. 819 of the Code had come up for consideration before this Bench. On careful examination of various decisions referred in it, this Bench held that the expression "any person not being the accused" refers to such peson who is not facing the inquiry or trial as an accused. The word "accused" in this section refers to the person or persons, who is or are facing the inquiry or trial at the time what the question of addition of an addition accused is being considered. The aforesaid expression includes the persons who have not been sent up by the Police during the investigation or against whom the proceeding has been quashed at the initial stage by the superior Court or who has not been summoned to face the trial, after enquiry under Sec. 202 of the Code or who have been discharged earlier in the proceeding. It was held by this Bench that such class of persons may be summoned as an accused to face the trial along with other accused already facing the trial, if the evidence adduced during the inquiry and trial shows their complicity in the crime in question. 10. From the aforesaid also it would become clear that there is no merit in this submission of the learned counsel appearing on behalf of the opposite party. 11. From the detailed discussions made above it becomes perfectly clear to me that this revision petition is fit to be allowed. 12. In the result, the impugned judgment passed by the learned Sessions Judge dated 2-12-1998 in Criminal Revision No. 67/98 is hereby quashed and the order dated 24-4-1996 passed by the learned Magistrate is restored. Revision allowed.