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2003 DIGILAW 269 (JHR)

Md. Ishaque Mian v. State Of Jharkhand

2003-02-28

D.N.PRASAD

body2003
ORDER Deokinandan Prasad, J. 1. This revision application has been filed against the order dated 8.11,2002 whereby and whereunder the learned Additional Sessions Judge, Giridih rejected the petition under Section 319 of the Code of Criminal Procedure (hereinafter referred to as the Code) in Sessions Trial No. 373 of 2000 arising out of Gandey P.S. Case No. 11 of 2000 registered under Sections 304B, 201 and 34 of the Indian Penal Code. 2. The prosecution case in brief is that the father of the deceased lodged a first information report alleging therein that the accused Sultan Mian and his mother Lal Bano had killed her daughter in the night of 24.3.2000 at 9.30 p.m. and dropped her dead body into the well. It is alleged that his daughter Noor Bano had, been at her sasural after the marriage solemnized with Sultan Mian, she was subjected to torture. There was a demand of motorcycle and a sum of Rs. 10,000/- and due to non-fulfillment of the demand, his daughter was done to death and her dead body was thrown in the well. 3. The police investigated into the case and submitted charge-sheet. The witnesses were examined in the Trial Court. Thereafter the informant/prosecution filed a petition under Section 319 of the Code praying therein for issuance of summons against opposite party Nos. 2 to 5 for facing their trial on the ground that the witnesses examined during trial also named these persons for being involved in the crime. The Court below after hearing both sides rejected the petition by order impugned, hence this revision application. 4. Mr. P.A. Khan, learned counsel for the petitioner submitted that there are sufficient materials during trial against opposite party Nos. 2 to 5 and, therefore, they should also be summoned for facing trial but the learned Court below committed error in rejecting the prayer without appreciating the evidence on record and passed the order impugned without applying the judicial mind. It is further submitted that if the evidence is collected even at the belated stage, the person against whom the evidence collected can be summoned as laid down under the provision of Section 319 of the Code. 5. On the other hand, Mr. C.S. Prasad, learned counsel appearing on behalf of opposite party Nos. It is further submitted that if the evidence is collected even at the belated stage, the person against whom the evidence collected can be summoned as laid down under the provision of Section 319 of the Code. 5. On the other hand, Mr. C.S. Prasad, learned counsel appearing on behalf of opposite party Nos. 2 to 5 contended before me that the Court below rightly passed the order rejecting the prayer for summoning the opposite parties as there is no sufficient evidence collected against them and the prosecution cannot be allowed to fill up the lacuna at the time the case is going to be concluded. It is also submitted that the provision of Section 319 of the Code can be invoked very sparingly. The first information report was lodged specifically against the husband and his mother by name and there was no any kind of allegation made against opposite party Nos. 2 to 5. The police investigated into the case and submitted charge-sheet against only two persons, the husband and his mother, as no material whatsoever was collected by the Investigating Officer during investigation against opposite party Nos. 2 to 5. Moreover, nine witnesses have already been examined and the case is going to be, concluded and, therefore, the prosecution cannot be allowed to fill up the lacuna at the very belated stage. The counsel appearing on behalf of the opposite parties also relied on the case of Michael Machado and Anr. v. Central Bureau of Investigation and Anr., 2000 (2) East Cr C 461 (SC) and, therefore, the court below rightly passed the order after weighing the entire evidence on the record. 6. Apparently first information report was lodged specifically against Sultan Mian and his mother Lal Bano. The police investigated into the case and submitted charge-sheet only against the said two persons. It is also the admitted position that during trial, nine witnesses have been examined. 7. It is well settled that powers under Section 319 of the Code can be invoked in appropriate situations. The police investigated into the case and submitted charge-sheet only against the said two persons. It is also the admitted position that during trial, nine witnesses have been examined. 7. It is well settled that powers under Section 319 of the Code can be invoked in appropriate situations. This section reads as under :-- "Power to proceed against other persons appearing to be guilty of offence.-- (1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed. (2) Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid. (3) Any person attending the Court, although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry Into; or trial of, the offence which he appears to have committed. (4) Where the Court proceeds against any person under Sub-section (1) then--, (a) the proceedings in respect of such person shall be commenced afresh, and the witness re-heard; (b) subject to the provisions of Clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced." 8. In the instant case nine witnesses have already been examined and admittedly they had not said anything against opposite party Nos. 2 to 5 before the Investigating Officer. It is also clear from their evidence that they are not the eye-witness about assaulting or throwing the dead body into the well. Moreover, the witnesses examined are relations who are interested witnesses on this point. The Trial Court also considered and discussed the evidence of those witnesses in detail. It may be noted here that the informant had also submitted a written report before the police at the police station in which he had not said anything that they had seen opposite party Nos. 2 to 5, while they were throwing the dead body into the well. It may be noted here that the informant had also submitted a written report before the police at the police station in which he had not said anything that they had seen opposite party Nos. 2 to 5, while they were throwing the dead body into the well. There was no reason as to why the informant has not stated those facts in the written report submitted before the police, which was recorded at the very initial stage giving details about the incident. 9. It is true that Sub-section (1) of Section 319 of the Code contemplates existence of some evidence appearing In course of trial wherefrom the Court can prima facie conclude that the person not arraigned before he is also involved in the commission of crime for which he can be tried with other persons already on the record but this provision ought to be exercised sparingly as this is really an extraordinary power which ought to be invoked only if compelling reasons exist for taking those persons also in the trial. Clearly the proceedings against the persons summoned under Sub-section (1) of Section 319 of the Code are required to be commenced afresh and the witnesses reheard. The entire proceedings have to recommence from the beginning of the trial. All the witnesses have to be examined afresh. Opportunity has to be granted for cross- examination and, in this way, there has to be a de novo trial, when one of the accused Mohammad Sultan Mian has already been in jail custody since long. In such situation, the prosecution cannot be allowed to take advantage at its will. There must be cogent and reliable evidences for invoking the provision of Section 319 of the Code so that no one may fall in the prey of harassment unnecessarily. 10. The case at hand clearly proves that several witnesses have already been examined and opposite party Nos. 2 to 5, have never been in picture either in the first information report or the evidence collected under Section 161 of the Code. Moreover, the evidence collected during trial are also not of such type, which can be used for invoking the provision of Section 319 of the Code. The Trial Court has rightly passed the order after discussing the entire matter in details, which does not require for any interference. 11. Moreover, the evidence collected during trial are also not of such type, which can be used for invoking the provision of Section 319 of the Code. The Trial Court has rightly passed the order after discussing the entire matter in details, which does not require for any interference. 11. In the result, I do not find any merit in this revision application, which Js, accordingly, dismissed.