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2004 DIGILAW 652 (PAT)

Prahlad Singh v. State Of Bihar

2004-07-08

MRIDULA MISHRA

body2004
Judgment Mridula Mishra, J. 1. Heard Learned counsel for the petitioner and also learned counsel for Opposite Parties 1, 2 and 3. 2. This application u/s. 482 of the Code of criminal Procedure has been filed against the order dated 22.9.2001 passed by the llnd Additional Sessions Judge, Madhubani in Sessions Trial No. 95 of 1998 whereby the trial Court has rejected the petition filed by the petitioner u/s. 319 of the Code of Criminal Procedure (hereinafter referred to as the Code). A petition was filed by the petitioner for summoning the opposite parties 1, 2 and 3, under Section 319 of the Code to face trial, who were named in the first information report as assailants of the deceased but were not charge-sheeted and sent up for trial. 3. The facts in brief of the case is that Harlaki P.S. Case No. 76/97 was instituted naming Anil Singh, Pancha Mahto, Biltu Mahto and Siyabar Singh as . accused. The allegation was that when Ranjit Singh was coming across the road to take tea along with the informant, Anil Singh, Pancha Mahto, Biltu Mahto and Siyabar Singh came suddenly and Anil Singh fired from the back side on Ranjit Singh who succumbed to injuries. After killing Ranjit Singh , Biltu Mahto and Siyabar Singh asked not to spare the informant on which Pancha Mahto also assaulted the informant with chhura. 4. The case was instituted and the investigation was done though there were sufficient materials against all the named accused persons in the case diary but the Investigating Officer submitted final form in favour of Anil Singh (Opposite Party No. 1), Biltu Mahto (Opposite Party No. 2) and Siyabar Singh (opposite Party No. 3) and only Pancha Mahto was charge- sheeted. 5. The learned Chief Judicial Magistrate accepted the final form against Opposite Parties 1, 2 and 3 without issuing notice to the informant and without hearing him. The case was committed to the Court of Session and charge was framed only against Pancha Mahto. After framing of charge the learned Additional Sessions Judge by order dated 16.8.19S8 issued summons to Opposite Parties 1, 2 and 3 to face trial. Notices were issued on consideration of the materials available on record in the first information report, case diary as well as other materials available on the record. Against the order dated 16.8.1988 the Opposite Parties preferred Cr. Misc. Notices were issued on consideration of the materials available on record in the first information report, case diary as well as other materials available on the record. Against the order dated 16.8.1988 the Opposite Parties preferred Cr. Misc. No. 27 195/98 for quashing the said order on the ground that the order passed u/s. 319 of the Code is pre-mature as no evidence has come before the Court concerned showing involvement of Opposite Parties 1 to 3 in this case and the learned trial Court has exceeded its jurisdiction by issuing summons u/s. 319 of the Code. The order dated 16.8.1998 was quashed by this Court by its order dated 5.4.1999 on technical ground that the order was premature. 6. Now the prosecution witnesses have been examined and the witnesses have stated before the Court that Opposite Parties 1 to 3 are the assailants and they have participated in the commission of offence . A petition u/s. 319 of the Code was filed by the informant stating that since consistent evidence has come against Opposite Parties 1 to 3 they should be summoned to face trial. The learned trial Court has rejected the prayer of the petitioners on the ground that the persons sought to be summoned are not fully described. From the evidence of PW 2 it appears that there are four Anil Singh in his village and parentage of Anil Singh has not been given. The other witnesses have simply named Anil Singh, Biltu Mahto and Siyabar Singh but their identification and addresses are absent. In that view of the matter summons cannot be issued to those persons. 7. Mr. Ganesh Prasad Singh, learned senior counsel appearing on behalf of Opposite Party No. 3 and Mr. Ajay Thakur, learned counsel appearing on behalf of Opposite Parties 1 and 2 have raised some legal points. Mr. Ganesh Prasad Singh has stated that the provision of sec. 319 of the Code can be invoked only in case of those persons who have not been made accused at any stage of the proceedings. In the present case the Opposite Parties were named as accused in the first information report. Investigation was done and the final form was submitted against them. The learned Magistrate discharged them without taking cognizance. 319 of the Code can be invoked only in case of those persons who have not been made accused at any stage of the proceedings. In the present case the Opposite Parties were named as accused in the first information report. Investigation was done and the final form was submitted against them. The learned Magistrate discharged them without taking cognizance. Since against this order no Revision was preferred they cannot be suinmoned now u/s. 319 of the Code as the cognizance is taken against the offence and not against the offender. Since they have been discharged at the earlier stage, they cannot be summoned u/s. 319 of the Code. It has also been submitted by Mr. Ajay Thakur, learned counsel appearing on behalf of Opposite Parties 1 and 2 that rightly or wrongly by order dated 16.8.1998 they were made accused and were also summoned u/s. 319 of the Code. This order was quashed by this Hon ble Court and now they cannot be summoned under Sec. 319 of the Code as the language of sec. 319 of the Code says that this jurisdiction can be exercised only in case of those persons who have not been made accused in the proceeding at any stage. The fact of this case is that rightly or wrongly the Opposite Parties 1 to 3 have been made accused at one stage of trial and as such, they cannot be summoned u/s. 319 of the Code. 8. It has been decided by the Apex Court and also by this Court in so many cases like (1993) 2 SCC 16 , [: 1993 (2) PLJR (SC) 2], Kishun Singh and Ors. V/s. State of Bihar, 2000 (2) PLJR 784 ; Shambhu Singh V/s. The State of Bihar and Anr., and 2003 (2) PLJR 84 ; Rajendra Singh V/s. State of Bihar and Anr., that simply because a person who is named in the first information report as an accused but final form was submitted in favour of him which was accepted by the learned Magistrate, the Sessions Court is not precluded from summoning such person under Sec. 319 of the Code if the evidence comes against that person in course of trial. If the final form is accepted by the learned Magistrate that cannot be considered as discharge. If the final form is accepted by the learned Magistrate that cannot be considered as discharge. The stage of discharge comes under the Code of Criminal Procedure after the cognizance is taken and the case is sent up for trial to the Magistrate, in cases triable by the Magistrate and in cases triable by the Sessions it is committed to the Court of Session. The stage of discharge comes when the Sessions Court on consideration of material before it is satisfied that, there is no evidence to proceed with the trial concerning a person sent up for trial for the offence alleged. in the case triable by Court of Sessions, only when order is passed under Secs. 227 and 228 of the Code then it will be considered as discharge. If any person is discharged the provision of sec. 319 of the Code will not be applicable. Simply because the final form was submitted and the cognizance was not taken, it cannot be treated as discharge and such accused person can be summoned u/s. 319 of the Code if sufficient evidence comes against him. 9. In the present case the Opposite Parties 1 to 3 were named in the first information report and in the case diary there were sufficient materials against them, even then the final form was submitted by the Investigating Officer which was accepted by the learned Magistrate without observing the mandatory provisions of law. Now at the stage of trial some evidence has come against them and, as such, the order passed by the learned trial Court is wholly without jurisdiction. The finding of the learned trial Court that identity of the Opposite Parties 1 to 3 cannot be established as their percentage is not given is against the materials on record as in the first information report and also in the charge-sheet the parentage of the Opposite Parties 1 to 3 has also been stated by the prosecution witnesses. As such, the petition filed by the prosecution u/s. 319 of the Code should not have been dismissed on this ground. As such, the petition filed by the prosecution u/s. 319 of the Code should not have been dismissed on this ground. As far as the submission made by the learned counsel appearing on behalf of Opposite Parties 1 and 2 that rightly or wrongly they were made accused by an earlier order which was quashed by this Hon ble Court, therefore, they cannot be summoned u/s. 319 of the Code is concerned, I must say that this argument has no leg to stand. Once the order dated 16.8.1998 was quashed by this Court, the order itself became non-existent. Prior to passing of the order dated 16.8.1998 the status of the Opposite Parties was not as an accused and, as such, they can be summoned u/s. 319 of the Code 10. On consideration of the entire materials and arguments advanced on behalf of the parties I am of the view that the order impugned is without jurisdiction. The order impugned dated 22.9.2001 passed by llnd Additional Sessions Judge, Madhubani is quashed. The trial Court is directed to proceed in the mater in accordance with law. 11. In the result, this application is allowed.