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2004 DIGILAW 426 (GAU)

Haren Sarma v. State of Assam

2004-06-23

P.G.AGARWAL

body2004
JUDGMENT P.G. Agarwal, J. 1. Heard Mr. K.K. Mahanta, learned Sr. Counsel for the Petitioners and Mr. F.H. Laskar, learned Public Prosecutor. 2. This revision is directed against the order dated 28.2.97, passed by the learned Judl. Magistrate, 1st Class, Nagaon, in G.R. Case No. 1629/95, whereby the four Petitioners before us were impleaded as accused as provided under Section 319 Code of Criminal Procedure. 3. The informant, Smt. Chandra Prabha Sarma, filed an FIR, registered as Dhing P.S. Case No. 117/95 (G.R. Case No. 1629/95), alleging commission of offence under Section 498A IPC by, as many as, five accused persons. After usual investigation, police submitted charge-sheet against only one accused, Praflilla Sarma, and did not submit charge-sheet against the Petitioners stating, inter alia, that there is no sufficient evidence against them. The trial Court accordingly proceeded against accused Prafiilla Sarma and during trial only one witness was examined. The trial Court, in view of the evidence of P.W.-1, held that there is sufficient materials against the present Petitioners and, accordingly, issued summons for their appearance under Section 319 Code of Criminal Procedure. 4. Shri Mahanta, learned Counsel for the Petitioners has submitted that in this case police has submitted final report against the present Petitioners and, as such, they are deemed to be accused against this case and must be discharged by way of the final report filed before the Court. They cannot be roped in or forced to face the trial again in view of the provision under Section 319 Code of Criminal Procedure. Learned Counsel has placed reliance on a decision of the Apex Court in the case of Sohan Lal and Ors. v. State of Rajasthan, 1990 Cri.L.J. 2302, wherein the Hon'ble Supreme Court held: The provisions of Section 319 have to be read in consonance with the provisions of Section 398. Once a person is found to have been the accused in the case he goes out of the reach of Section 319. Whether he can be dealt with under any other provisions of the Code is a different question. In the case of the accused who has been discharged under the relevant provisions of the Code, the nature of finality to such order and the resultant protection of the persons discharged subject to revision under Section 398 may not be lost sight of. In the case of the accused who has been discharged under the relevant provisions of the Code, the nature of finality to such order and the resultant protection of the persons discharged subject to revision under Section 398 may not be lost sight of. Once a person was an accused in the case he would be out of reach of Section 319. The crucial words in Section 319 are any person not being the accused. 5. The facts in the present case are, more or less, identical with that of Jogindra Singh and Anr. v. State of Punjab and Anr. AIR 1979 SC 339 , wherein the Apex Court interpreted Section 319 Code of Criminal Procedure as below: As regards the contention that the phrase 'any person not being the accused' occurring in Section 319 excludes from its operation an accused who has been released by the police under Section 169 of the Code and has been shown in column No. 2 of the charge-sheet, the contention has merely to be stated to be rejected. The said expression clearly covers any person who is not being tried already by the Court and the very purpose of enacting such a provision like Section 319(1) clearly shows that even persons who have been dropped by the police during investigation but against whom evidence showing their involvement in the offence comes before the Criminal Court are included in the said expression. 6. In Joginder Singh (Supra) also investigation was made against 5 accused but charge-sheet was submitted against 3 accused persons, leaving 2 accused persons. However, during trial the learned Sessions Judge, on the strength of the evidence recorded, arrayed the earlier accused persons as accused. This was upheld by the High Court and the Apex Court also confirmed the order of the Addl. Sessions Judge in exercising jurisdiction under Section 319 Code of Criminal Procedure. 7. In view of the above, we hold that there is no merit in this revision petition and the revision petition stands dismissed. Send down the records. Petition dismissed