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2004 DIGILAW 359 (CAL)

SHYAMALI SINHA v. PRADIP KUMAR SINHA

2004-05-21

P.N.SINHA

body2004
P. N. SINHA, J. ( 1 ) THIS revisional application has been preferred by the petitioner assailing the judgment and order dated 9. 12. 96 passed by the learned Additional Sessions judge-cum-Judge, Special Court (E. C. Act.) in Criminal Motion No. 235/96 thereby allowing the criminal motion and setting aside the order dated 11. 6. 96 passed by the learned Judicial Magistrate, 6th Court, Sealdah in G. R. Case No. 1906/88. ( 2 ) LEARNED advocate for the petitioner contended that the petitioner is the wife of opposite party No. 1 and they are not in good terms and there is dispute between the husband and the wife. A matrimonial suit being MAT Suit No. 338 of 1998 was filed by the petitioner and in order to take revenge or harass the petitioner, the husband-opposite party filed the complaint/ FIR a few days after the MAT suit and it was sent to O. C. , Chitpur P. S. and on the basis of it chitpur P. S. Case No. 394 dated 28. 10. 88 under sections 448/ 323/ 324/ 504/ 506 of IPC was started against this petitioner and others. In the Court it was registered as G. R. Case No. 1906 of 1988. Charge was framed against two accused persons namely Deb Prakash Ghosh and Bishnu Das and no charge was framed against this petitioner Shyamali Sinha. During trial four witnesses were examined from April, 1995 to 20. 5. 96. Though it was a case of 1988, on 11. 6. 96 learned Assistant Public Prosecutor filed an application under section 319 of Cr. PC to summon the petitioner as one of the accused, but the learned magistrate by order dated 11. 6. 96 rejected the said prayer. Challenging the order of the learned Magistrate the de facto complainant husband, who is opposite party No. 1 in this revisional application, preferred criminal motion in the Court of the learned Sessions Judge at Alipore and after transfer it was disposed of by the learned Additional Sessions Judge-cum- Judge, Special Court. The learned Additional Sessions Judge allowed the revisional application and set aside the order passed by the learned Magistrate and directed the learned magistrate to proceed in accordance with law after adding this petitioner as one of the accused persons in the said case. ( 3 ) HE further contended that application under section 319 of Cr. The learned Additional Sessions Judge allowed the revisional application and set aside the order passed by the learned Magistrate and directed the learned magistrate to proceed in accordance with law after adding this petitioner as one of the accused persons in the said case. ( 3 ) HE further contended that application under section 319 of Cr. PC after 8 years is belated and cannot be entertained. The statement of the witnesses examined in Court did not reveal any element against this petitioner to show that she took part in the alleged incident to commit any offence. There was no chargesheet against the wife-petitioner and independent witnesses did not utter the name of petitioner. The case is now 16 years old and there is no material at all to summon the petitioner as an accused in this case. In support of his contention he cited a decision in the case of Naser Ali Mirza vs. State of West bengal, reported in 1999 C Cr LR (Cal) 302. ( 4 ) MR. De, learned senior advocate for the opposite party No. 1 contended that language of section 319 of Cr. PC is very simple. It lays down that 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. It establishes that if during enquiry or trial of any case if it appears from evidence that any person who is not an accused in the said enquiry or trial has committed any offence, the Court may summon him to face trial for the offence together with the other accused persons. Question of summoning after 8 years or 10 years is immaterial. This Court is not now in a position to ascertain as to for whose fault there was delay. He contended that the decisions of the Apex Court of India clearly lays down that where from evidence it appears that certain persons are involved in a case their addition as accused in exercise of power under section 319 of the Cr. PC would not be unwarranted. He contended that the decisions of the Apex Court of India clearly lays down that where from evidence it appears that certain persons are involved in a case their addition as accused in exercise of power under section 319 of the Cr. PC would not be unwarranted. In support of his contention he cited the decisions in the case of Rakesh vs. State of Haryana, reported in 2001 SCC (Cri) 1090, Rukhsana Kahtoon vs. Sakhawat Hussain, reported in 2002 (2) Supreme 580 and Joginder Singh vs. State of Punjab reported in AIR 1979 SC 339 . ( 5 ) AFTER hearing the submissions of the learned advocates of the parties and perusing the impugned order passed by the learned Additional Sessions Judge in Criminal Motion No. 235 of 1996,1 am of opinion that the order passed by the learned Additional Sessions Judge was correct and legal and it requires no interference. It appears that the O. P. No. 1 as complainant lodged complaint against this petitioner and others and requested the learned Magistrate to send the complaint, to O. C. , Chitpur P. S. for investigation under section 156 (3) of Cr. PC. On the basis of it Chitpur P. S. Case No. 394 dated 28. 10. 88 under sections 323/ 324/ 448/ 504 and 506 of IPC was started against the accused persons. But after completing investigation the police did not submit chargesheet against this petitioner who is none but the wife of de facto complainant o. P. No. 1, but submitted chargesheet against others. The subsequent trial that followed in the Court of the learned Judicial Magistrate, 6th Court, Sealdah, four witnesses were examined, and thereafter, learned Assistant Public prosecutor filed a petition under section 319 of Cr. PC for impleading the petitioner as an accused in the said case as in evidence her involvement or taking part in the offence transpired. The learned Magistrate by order dated 11. 6. 96 rejected the prayer and assailing the said order the de facto complainant husband preferred Criminal Motion No. 235 of 1996 in the Court of the learned sessions Judge and the learned Additional Sessions Judge by order dated 9. 12. 96 allowed the motion and directed the learned Magistrate to issue summons against this petitioner. 6. 96 rejected the prayer and assailing the said order the de facto complainant husband preferred Criminal Motion No. 235 of 1996 in the Court of the learned sessions Judge and the learned Additional Sessions Judge by order dated 9. 12. 96 allowed the motion and directed the learned Magistrate to issue summons against this petitioner. ( 6 ) I am of opinion that the law makes it clear that, if any person who was not an accused before the Court earlier and who was not cited the chargesheet as an accused may be summoned under section 319 of Cr. PC to face trial along with the other accused persons, if in evidence materials against him transpires showing involvement in the incident. There are galaxy of decisions in this respect of the Apex Court of India. Consideration of preferring application after 8 years or 10 years is immaterial. In my opinion it is the duty of the Court, if the Court finds that during trial or enquiry in evidence involvement of a person transpires into the alleged offence to summon the'said person under section 319 of the Cr. PC to face trial along with other accused persons. It is not desirable that the assistant Public Prosecutor or the de facto complainant Would prefer an application before the Court under section 319 of Cr. PC and thereafter only, the Court would exercise jurisdiction into the matter. The language of section 319 of Cr. PC is explicit and it envisages that if in course of any enquiry or trial it appears from 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 such person for the offence which he appears to have committed. This section does not indicate that the Court would act only upon the application of Assistant Public Prosecutor or complainant. Court cannot remain sitting idle in the matter and it has a duty to look into the matter and to apply judicial mind for ends of justice to embark upon the situation to summon such person against whom in evidence involvement in the alleged offence transpired, who is not an accused before the Court or against whom the police did not submit chargesheet. ( 7 ) THE decisions cited by the learned advocate for the appellant are quite appropriate and in Rakesh vs. State of Haryana (supra) it was indicated that addition of other persons as accused may be made if in evidence their names transpires and evidence would not include cross-examination of the witness. In rukhsana Khatoon's case (supra) it was observed by the Supreme Court that provisions of section 319 of Cr. PC gave ample power to Court to take cognizance and add any person not being an accused before it and try him with other accused if during trial there appeared sufficient evidence indicating involvement of such accused. Power, however, should be exercised sparingly. ( 8 ) IN Joginder Singh (supra) the Supreme Court observed that where an accused was not tried by the Court and was released by police and not cited in chargesheet can be proceeded against under section 319 of Cr. PC if against him evidence showing involvement in the offence came before the Criminal court. In Nisar and Anr. vs. State of U. P. , reported in 1995 Cr. LJ 2118 it was observed by the Supreme Court that power under section 319 (1) to proceed against other persons appearing to be guilty of offence can be exercised only when involvement of such person comes to light in course of evidence recorded during enquiry or trial and not prior to that stage. ( 9 ) IN the instant case in the complaint it was the allegation that this petitioner being the wife took leading part in the incident. Though P. W. 2 and P. W. 3 did not utter name of this petitioner evidence of P. W. 1 and P. W. 4 reveals involvement of this petitioner. Other accused persons at the instance of this petitioner assaulted the de facto complainant with fists and blows. In evidence p. W 1 stated that his wife, the petitioner assaulted him by brickbat and not only that they dismantled the articles of room of P. W. 1. Evidence of P. W. 4 indicates that at the instance of the petitioner other accused persons assaulted p. W. 1 and all the accused persons intimidated P. W. 1. Therefore, it cannot be said that there is no material at all against the petitioner. The learned Additional sessions Judge rightly passed the order for summoning the petitioner as accused. Evidence of P. W. 4 indicates that at the instance of the petitioner other accused persons assaulted p. W. 1 and all the accused persons intimidated P. W. 1. Therefore, it cannot be said that there is no material at all against the petitioner. The learned Additional sessions Judge rightly passed the order for summoning the petitioner as accused. There is no ground to interfere with the order passed by the learned Additional sessions Judge. ( 10 ) IN view of the above discussion the revisional application fails and is dismissed. The petitioner is directed to appear before the learned Magistrate without any delay when the learned Magistrate would admit her to bail and thereafter the learned Magistrate shall give opportunity of cross -examination of P. W. 1 to P. W. 4 to this accused petitioner and thereafter proceed to dispose of the case as expeditiously as possible in accordance with law keeping in mind that the case has become already old. ( 11 ) ALL interim orders passed earlier stands vacated. ( 12 ) CRIMINAL section is directed to send a copy of this order to the learned judicial Magistrate, 6th Court, Sealdah for information and necessary action. ( 13 ) URGENT xerox certified copy be given to the parties, if applied for, expeditiously. Revisional application dismissed.