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2004 DIGILAW 1038 (PAT)

Md. Saddique v. State of Bihar

2004-09-27

body2004
ORDER Heard 2. This application by petitioners has been filed for quashing the order dated 19.1.2004 passed by Fast Track Court No.5, Purnea in Sessions Trial No. 810 of 2003 by which petitioners have been summoned under Section 319 of Code of Criminal Procedure (In short, "Cr. P.C.") to face the trial. 3. The case of petitioners is that they are not named in the first information report in which names of twelve persons alongwith five to six unknown persons have been mentioned inspite of the fact that they happen to be co-villagers of informant. Their further case is that PWs. 1 to 3, on whose evidence, they have been summoned under Section 319 of Cr.P.C. have not mentioned their complete address in their evidence and their address has been supplied to Court by prosecution (Annexure-5). 4. Learned counsel of petitioners submits that impugned order shows that names of petitioners have figured in the evidence of three witnesses, namely, Abdul Hakim, Abdul Khabir and Md. Muzaffar but during the course of investigation, they did not whisper the names of petitioners when their statements were recorded under Section 161 of Cr.P.C. He further submits that impugned order, summoning the petitioners to face trial, will result in abuse of process of the Court. He has further argued that the Court below has failed to take due care and caution and has not examined the materials available on record in right perspective and has acted in mechanical manner without following the settled principles of law while allowing the prosecution's application under Section 319 of Cr.P.C. and it has failed to take into consideration that informant is co-villeger of petitioners and he has given every details of alleged occurrence in first information report but has not named the petitioners. The learned counsel for petitioners, by relying upon two decisions, both by Bench of Single Judge of this Court, in the cases of Sheoji Prasad Vs. State of Bihar and another [ 2001 (1) PLJR 16 ] and Sabrun Khatoon @ Sabrun and others Vs. State of Bihar and others [2002 (2) PLJR 739] and a decision of Supreme Court in the case of Shashikant Singh Vs. Tarkeshwar Singh and another [2002 (3) PLJR 21], has challenged the impugned order. In the case of Shashikant Singh Vs. State of Bihar and others [2002 (2) PLJR 739] and a decision of Supreme Court in the case of Shashikant Singh Vs. Tarkeshwar Singh and another [2002 (3) PLJR 21], has challenged the impugned order. In the case of Shashikant Singh Vs. Tarkeshwar Singh and another (supra), the Supreme Court has held that proceeding against the persons summoned under Section 319(1) of Cr. P.C. are required to be commenced afresh and all the witnesses have to be examined afresh. The decision is not on the point involved in this case. The other two cases which are decisions of two different Benches of Single Judge of this Court, no doubt order summoning the petitioners under Section 319 of Cr.P.C. was set aside but in both the cases, facts of respective cases were also taken into consideration. In the case of Sabrun Khatoon @ Sabrun Vs. State of Bihar and others (supra) in which four female members were summoned under Section 319 of Cr.P.C., the learned Single Judge found it improbable that four female members will join four male persons of their family to assault the complainant who was going to attend his mother and was alone. In the case of Sheoji Prasad Vs. State of Bihar and another (supra) in which petitioner was summoned under Section 319 of Cr.P.C. in a case under Section 139 of Negotiable Instruments Act, 1881, the plea of petitioner that, admittedly, the cheque was not issued by him nor any demand of money by opposite partly was made to him and no notice as required under Section 138 of Negotiable Instruments Act was also considered alongwith other materials and the order was set aside. The facts of the present case, which is a case of murder, are quite different because as per evidence recorded in this case during trial allegation against the persons named in the first information report and the petitioners is that they assaulted the deceased, Sayeed Ali and Md. Sanaullah. The impugned order shows that after commitment when the case was put on trial, three witnesses on behalf of prosecution were examined who, supporting the case of prosecution, beside the persons named in the first information report named the petitioners also and thereafter, at the prayer of prosecution, the Court below issued summons against the petitioners for appearing in the case and facing the trial. The grievance of the petitioners is that informant, who is their co-villagers, did not name them in first information report and the witnesses, whose evidence has been recorded under Section 161 of Cr. P.C. did not name them. It is further argued that out of the three witnesses, one who is PW 2 has not named the petitioners. From the copy of depositions of three prosecution witnesses (Annexure-2 series) I find that it is a fact that PW 2 did not name the petitioners but so far evidence of PWs. 1 and 3 is concerned, they have named the petitioners besides other persons in their evidence. The Court below, after exercising the powers under Section 319(1) of Cr. PC. has issued summons to the petitioners. Section 319(1) of Cr.P.C. reads as follows: "Where, in the course of any enquiry 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." 5. A bare reading of Section 319(1) of Cr.P.C. shows that in the course of any enquiry 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 with the accused, the Court may proceed against him for the offence which he appears to have committed. From the provisions of Section 319(1) of Cr. PC. it is clear that not only in the course of a trial but in the course of any enquiry also, the Court may proceed against any person against whom there is evidence that he has committed the offence. This enquiry may be an enquiry under Section 202 of Cr. P.C. Normally, an enquiry under Section 202 of Cr. P.C. starts against those accused or accused persons who are named in complaint petition. If a person is not named in the complaint petition but from evidence recorded during inquiry under Section 202 of Cr.P.C. if it appears to Court that he has committed any offence, he may be summoned under Section 319(1) of Cr.P.C. to face trial alongwith the accused or accused persons named in the complaint petition. If a person is not named in the complaint petition but from evidence recorded during inquiry under Section 202 of Cr.P.C. if it appears to Court that he has committed any offence, he may be summoned under Section 319(1) of Cr.P.C. to face trial alongwith the accused or accused persons named in the complaint petition. Section 319(1) of Cr.P.C. does not make it obligatory that for summoning a person under this provision, his name must figure in the complaint petition. In the case of Dr. S.S. Khanna Vs. Chief Secretary, Patna and another (AIR 1983, SC 595) [ : 1983 PLJR (SC) 107], it has been held that "Even when an order of Magistrate declining to issue process under Section 202 is confirmed by higher Court, the jurisdiction of the Magistrate under Section 319 remains unaffected if other conditions are satisfied." One may argue that case of those persons against whom a Magistrate holds enquiry under Section 202 of Cr.P.C. and declines to issue process stands on different footings than the case of those persons who are neither named in the complaint petition nor in first information report and whose names appear for the first time in evidence because in the former case, name of accused persons not summoned at least appear in the complaint petition. In my opinion, the persons, whose names appear in complaint petition after inquiry under Section 202 of Cr.P.C. are at least armed with a plea that a Magistrate applying his judicial mind after holding enquiry under Section 202 of Cr. P.C. did not find any material for issuing summons to them. If such persons subsequently can be summoned if it appears from the evidence recorded in trial that they committed an offence, there is no bar for summoning the persons whose names appear for the first time in evidence that they committed an offence. In the case of Kishun Singh Vs. State of Bihar [1993 (2) PLJR (SC) 2], it has been held as follows : "On a plain reading of sub-section (1) of Section 319 there can be no doubt that it must appear from the evidence tendered in the course of any enquiry or trial that any person not being the accused has committed any offence for which he should be tried together with the accused. This power, it seems clear to us, can be exercised only if it so appears from the evidence at the trial and not otherwise. Therefore, this subsection contemplates existence of some evidence appearing in the course of trial wherefrom the Court can prima facie conclude that the person not arrainged before it is also involved in the commission of the crime for which he could be tried with those already named by the police. Even a person who has earlier been discharged would fall within the sweep of the power conferred by Section 319 of the Code. Therefore, stricto sensu, Section 319 of the Code cannot be invoked in a case like the present one where no evidence has been led at a trial wherefrom it can be said that the appellants appear to have been involved in the commission of the crime alongwith those already sent up for trial by the prosecution. But then it must be conceded that Section 319 covers the post cognizance stage where in the course of an enquiry or trial the involvement or complicity of a person or persons not named by the investigating agency has surfaced which necessitates the exercise of the discretionary power conferred by the said provision. Section 319 can be invoked both by the Court having original jurisdiction as well as the Court to which the case has been committed or transferred for trial. The sweep of Section 319 is, therefore, limited, in that, it is an enabling provision which can be invoked only if evidence surfaced in the course of an enquiry or a trial disclosing the complicity or a trial disclosing the complicity of a person or persons other than the person or persons already arraigned before it. If this is the true scope and ambit of Section 319 of the Code, the question is whether there is any other provision in the Code which would entitle the Court to pass a similar order in similar circumstances. The search for such a provision would be justified only on the premise that section 319 is not exhaustive of all post cognizance situations. Now, as pointed out earlier. Section 319 deals with only one situation, namely, the complicity coming to light from the evidence taken and recorded in the course of an enquiry or trial. The search for such a provision would be justified only on the premise that section 319 is not exhaustive of all post cognizance situations. Now, as pointed out earlier. Section 319 deals with only one situation, namely, the complicity coming to light from the evidence taken and recorded in the course of an enquiry or trial. This may happen not merely in cases where despite the name of a person figuring in the course of investigation the investigating agency does not send him up for trial but even in cases where the complicity of such a person comes to light for the first time in the course of evidence recorded at the enquiry or trial. Once the purport of Section 319 is so understood it is obvious that the scope of its operation or the area of its play would also be limited to case where after cognizance, the involvement of any person or persons in the commission of the crime comes to light in the course of evidence recorded at the enquiry or trial. Thus the section does not apply to all situations and cannot be interpreted to be repository of all power for summoning such person or persons to stand trial alongwith others arraigned before the Court. (Emphasis added) 6. The petitioners are challenging the impugned order on the ground that they are not named in the first information report inspite of the fact that they are co-villagers of informant and P.Ws. 1 and 3, who have named them in their evidence, did lot name them when they were examined by police during investigation. Merely on these facts, it cannot be said that petitioners cannot be summoned under Section 319(1) of Cr.P.C. inspite of the fact that from evidence recorded during trial, it appears that they have committed an offence for which they may be tried alongwith the accused persons already on record because Section 319(1) of Cr.P.C. does not lay down that apart from evidence recorded during trial showing the commission of offence by a person, some other ground is also required for summoning him to face the trial. Besides this, at this stage, it cannot be conclusively said that prosecution witnesses who have named the petitioners during their evidence in trial had not named them in their statements before investigating Officer during investigation. Besides this, at this stage, it cannot be conclusively said that prosecution witnesses who have named the petitioners during their evidence in trial had not named them in their statements before investigating Officer during investigation. The court will come to this finding only after the examination of Investigating Officer. Not naming the petitioners in first information report and by prosecution witnesses in their examination during investigation are the facts which will be considered by the trial Court at the time of passing final order in the case. This is not the stage to give any finding on these points because doing so will amount prejudging the trial. 7. The next argument advanced on behalf of petitioners is that parentage and addresses of petitioners were supplied by prosecution and witnesses examined during trial, have not given the parentage and addresses of petitioners is without any force because from the prosecution witnesses (Annexure-3 series), I find that some witnesses have given the parentage of some of the petitioners. It is the own case of petitioners that they are co-villagers of informant and they have not come up with the plea that in their village, there are some other persons having the same names as that of petitioners and PW 3, in his evidence, has stated that all petitioners are having their residences about a distance of 200 to 250 yards suggesting that they are neighbors of informant. 8. In the result, I find no merit in this application which is, accordingly, dismissed.