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2003 DIGILAW 224 (JHR)

Pradeeptah Mukherjee v. State of Bihar

2003-02-17

AMARESHWAR SAHAY

body2003
Order In the instant application the petitioner has prayed for quashing of the order dated 28.2.2000 passed by the Judicial Magistrate, Dumka in T.R. no. 46 of 2000 whereby learned Magistrate has issued summons against the petitioners in exercising of powers under section 319 Cr.P.C. In connection with G.R. No. 959 of 1992 arising out of Dumka Mufassil P.S. case no. 114 of 1992 under sections 282/304A of the Indian Penal Code. 2. The brief facts of the case are that on 1.10.1992, the Officer in-charge of Dumka Mufassil Police Station submitted written report lodging therein that on the same day i.e. 1.10.1992 at about 5 P.M. he received information that some boys of Shishu Niketan while boating in Mayurakhi River were drowned and their dead bodies have not been recovered. On receiving this information the informant reached place of occurrence with police force and found that large number of people had already collected there and at that time five dead bodies had been recovered which were already been sent to Dumka Hospital. However, the dead bodies of four others boys were not recovered and efforts were being made on behalf of the administration and the local people to recover other dead bodies by throwing net in the water. 3. It is further stated in the report that on enquiry it was found that although the big boat was available, but still a smaller boat was hired for the purpose of boating for the boys, because the boat man of larger boat had demanded Rs. 1.50 per passenger, while the boatman of the smaller boat had demanded Rs. 1/- per passenger. On enquiry it further revealed that capsized boat had a hole through which water used to come in the boat. It was further reported that school authorities had not taken permission from the guardian of the students and boat was overloaded and the school teachers had not taken proper care of the students. Therefore such unfortunate incident took place. 4. On the basis of the aforesaid written report a case under sections 282 and 304A was registered against two boat man and the petitioners. 5. After completion of the investigation the police submitted chargesheet against one boat man only i.e. Pintu Dhibhar only and the petitioners were not sent up for trial as no chargesheet was submitted against them. 6. On the basis of the aforesaid written report a case under sections 282 and 304A was registered against two boat man and the petitioners. 5. After completion of the investigation the police submitted chargesheet against one boat man only i.e. Pintu Dhibhar only and the petitioners were not sent up for trial as no chargesheet was submitted against them. 6. It appears that one Radhe Krishna Giluka tiled protest petition before the Chief Judicial Magistrate, Dumka and prayed for taking cognizance against the petitioners. It further appears that on behalf of Pintu Dhibhar, who was also chargesheeted, a petition for discharge was filed before the Chief Judicial Magistrate. 7. The learned Chief Judicial Magistrate while rejecting the prayer of Radhe Krishna Giluka has refused to take cognizance against the petitioners having found no materials on record against the petitioners by this order dated 28.9.1994 (Annexure-2). Against the said order, he filed Cr. Rev. no. 880 of 1994 before the Hon'ble Patna High Court which was allowed to be withdraw vide order dated 7.2.1995 (annexure-3). 8. During the trial six witnesses were examined on behalf of the prosecution and after closure of the evidence of the prosecution, the statements of the accused, Pintu Dhibhar was recorded under section 313 of Cr.P.C. on 17.2.2000. 9. Thereafter the learned Magistrate vide order dated 28.2.2000 when case was fixed for judgment held that it appeared to him from the evidences of P.Ws. 3 and 4 that the teachers of the school in question were responsible for the said incident. In that view of the matter, learned Magistrate in exercising of powers under section 319 Cr.P.C. issued summons to the petitioners and stayed the Judgment. 10. Being aggrieved by the said order the petitioners by filing this application has prayed for quashing of the same. 11. The learned counsel for the petitioners submitted that it was purely accident and school teachers were not responsible for the unfortunate incident. 10. Being aggrieved by the said order the petitioners by filing this application has prayed for quashing of the same. 11. The learned counsel for the petitioners submitted that it was purely accident and school teachers were not responsible for the unfortunate incident. The learned counsel further submits that when the chargesheet was submitted against only two accused persons and not against petitioners, same facts were considered by the learned C.J.M. and the prayer to add the petitioners as accused was rejected by the learned C.J.M. vide his order dated 28.9.1994 (Annexure-2) against which criminal revision was preferred but the same was allowed to be withdrawn by the Hon'ble Patna High Court finding no merit and therefore the impugned order passed by the learned Magistrate is absolutely illegal and without jurisdiction. 12. In support of his submission, the learned counsel for the petitioners has relied on the decision reported in 1991 BBCJ 10 (S.C.) (Sohan lal and Ors. vs. State of Rajasthan) and also decision reported in 2000 (2) B.L.J. 477. So far as the case reported in 1991 BBCJ 10 (S.C.) is concerned, this case is not applicable in the facts and circumstances of the case because of the fact that in that case accused persons were discharged by the court and thereafter the court had issued summons against them under section 319 of Cr.P.C. It is well settled that order discharging the accused amount to an acquittal and therefore. the court had no jurisdiction to issue summons to a person in exercising of powers under section 319 of Cr.P.C. when that person has been discharged by the court but in the present case in hand the petitioners were never discharged rather they were not sent up for trial or chargesheeted by the police. So far as the second decision cited by the learned counsel for the petitioners reported in 2000 (2) B.L.J. 477 of Patna High Court is concerned, it has also got no application in the present case. So far as the second decision cited by the learned counsel for the petitioners reported in 2000 (2) B.L.J. 477 of Patna High Court is concerned, it has also got no application in the present case. In that case also after accused persons were discharged, the court had summoned those discharged persons in exercising of powers under section 319 of Cr.P.C. The submission of the learned counsel for the petitioners is that the impugned order was without jurisdiction is fit to be rejected because section 319 of Cr.P.C. specifically empowers the court that if during the enquiry or trial if it appears to the court from the evidence adduced on behalf of the prosecution that other persons, who are not being tried, also appears to have committed offence then they can be summoned to face trial. 13. In the present case also from the impugned order it appears that learned Magistrate came to the conclusion from the statements of the witnesses that the petitioners were also involved in the case and therefore he has rightly exercised his powers under section 319 of Cr.P.C. and summoned them to face trial. 14. In that view of the matter, I find no illegality in the impugned order. 15. In the result this application has got no merit and it is accordingly dismissed.