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2005 DIGILAW 585 (PAT)

Pragash Mahto v. State Of Bihar

2005-07-07

CHANDRAMAULI KR.PRASAD, SYED MD.MAHFOOZ ALAM

body2005
Judgment Chandramauli kumar Prasad, J. 1. Appellants besides six other persons were put on trial for offence under Sections 302/149/147/148/323/324 of the Indian Penal Code and Sec. 27 of the Arms Act. First Additional Sessions Judge, Sitamarhi by its judgment and order dated 4th of July, 2001 acqtiitted six accused persons but found the appellant guilty of offence under Secs. 302 read with Sec. 149 of the Indian Penal Code and further found appellant No. 2 Paran Mahto @ Pran Mahto guilty under Sec. 27 of the Arms Act and sentenced them to undergo rigorous imprisonment for life for offence under Secs. 302 and 149 of the Indian Penal Code and three years for the offence under Sec. 27 of the Arms Act. Each of the appellants were further sentenced to pay a fine of Rs. 5.000.00 (five thousand) and in default of payment of fine to undergo rigorous imprisonment for a period of two years. Aggrieved by the same appellants have preferred this appeal. 2. Prosecution started on the basis of a statement given by PW-1 Shatrudhan Kumar before the Sub-Inspector of Police on 4.4.1983 at 9.30 a.m. alleging therein that his co-villager Pradeep Mahto was cultivating the land belonging to one Achyabar Singh, on crop- sharing basis, which land appellant Paran Mahto @ Pran Mahto purchased in the year 1982. According to the informant, appellant Paran Mahto started cultivating the land but Pradeep Mahto wanted to harvest wheat-crop standing over that land and for that purpose he alongwith other persons including the informants father, the deceased Ashrafi Baitha, went to the field. According to the First Information Report, Pradeep Mahto was earlier the Secretary of the Communist Party of India but later on replaced by the deceased. According to the informant, in the field he saw the appellants present alongwith 100 to 150 persons variously armed. Appellant No. 2 Paran Mahto and Appellant No. 3 Mahendra Mahto were armed with country made gun and other accused persons were armed with lathi, bhala and farsa. It has been further alleged that accused Sarjug Mahto (Since acquitted) gave bhala blow to Nathuni Mahto on his waist, whereas appellant No. 4 Bhola Mahto gave Bhala blow to Pradeep Mahto. Appellant No. 2 Paran Mahto and Appellant No. 3 Mahendra Mahto were armed with country made gun and other accused persons were armed with lathi, bhala and farsa. It has been further alleged that accused Sarjug Mahto (Since acquitted) gave bhala blow to Nathuni Mahto on his waist, whereas appellant No. 4 Bhola Mahto gave Bhala blow to Pradeep Mahto. Appellant No. 3 Mahendra Mahto fired which caused injury to informants father Ashrafi Baitha who tried to flee away from the place of occurrence but fell down nearby and died within ten to fifteen minutes. According to the informant it was appellant No. 2 Paran Mahto who gave order to kill. 3. On the basis of the aforesaid information Belsand P.S. case No. 0031 of 1983 was registered under Sections 147, 148, 149, 307 and 302 of the Indian Penal Code and Sec. 27 of the Arms Act. Police after investigation submitted charge-sheet against accused persons, namely, Ram Sakal Mahto, Sarjug Mahto, Ram. Yash Mahto, Rarnashish Mahto, Nathuni Mahto and Bhuneshwar Mahto but appellants were not sent up for trial. Ultimately, the charge-sheeted accused persons were committed to the Court of Sessions to face trial by the learned Magistrate by order dated 4.1.1985. 4. Before the trial Court, some of the accused persons charge-sheeted filed application for discharge and the learned Judge while rejecting the prayer of such accused persons, by order dated 19.8.1988 summoned these appellants to face trial in purported exercise of its power under Sec. 319 of the Code of Criminal Procedure. It is relevant here to state that the date on which the learned Judge exercised its power under Sec. 319 of the Code of Criminal Procedure no evidence was recorded and the first witness in the case, namely, PW-1 Shatrudhan Kumar was examined on 8th of September, 1989. 5. Ultimately, all the appellants excepting Appellant No. 3 were put on trial for offence under Secs. 302/ 149 of the Indian Penal Code. Appellant No. 3 was, however, charged, for the offence under Sec. 302 of the Indian Penal Code. Appellant Nos. 2 to 4 were also charged for offence under Sec. 148 of the Indian Penal Code. Appellant No. 1 and appellant No. 4 have further been charged for offence under Secs. 147 and 324 of the Indian Penal Code respectively. Appellant No. 3 was, however, charged, for the offence under Sec. 302 of the Indian Penal Code. Appellant Nos. 2 to 4 were also charged for offence under Sec. 148 of the Indian Penal Code. Appellant No. 1 and appellant No. 4 have further been charged for offence under Secs. 147 and 324 of the Indian Penal Code respectively. Appellant No. 2 and 3 have also been charged under Sec. 27 of the Arms Act. 6. Prosecution in order to bring home the charge had altogether examined nine witnesses out of which PWs 1 to 4 claim to be the eye-witness to the occurrence. PW 5 Mahavir Prasad is a witness to the seizure and PWs 6 to 9 have been tendered. It is relevant here to state that neither the Investigating Officer nor the doctor who had conducted the post mortem examination, have been examined. 7. Appellants denied to have committed any offence and from the trend of the cross-examination their defence appear to be that Pradeep Mahto alongwith other persons variously armed came to the field for harvesting the crop and resorted to brick-batting in which Ram Yash Mahto a close relative of Pradeep Mahto, who was also the member of the mob resorted to firing which caused the death of Ashrafi Baitha. It has also been suggested that the deceased had replaced Pradeep Mahto as the Secretary of the Communist Party of India and on account of this animosity Ram Yash Mahto who happen to be the close relative of Pradeep Mahto shot him dead. 8. PW-1 Shatrudhan Kumar, the informant of the case had stated that on 4.4.1983 at 7.30 a.m. while he was bathing, he heard hulla that paddy crop is being harvested from the batai land ofPradeep Mahto. He further sated that his father. Ashrafi Baitha, Pradeep Mahto alongwith other persons proceeding towards the land to stop harvesting of the paddy crop and he followed them and when he reached near the field, he saw the appellants besides other accused persons assembled there for harvesting the crop. According to this witness, appellant Paran Mahto @ Pran Mahto was armed with a country made gun, appellant Mahendra Mahto was armed with a gun whereas appellant Bhola was armed with bhala and they surrounded his father and Pradeep Mahto. According to this witness, appellant Paran Mahto @ Pran Mahto was armed with a country made gun, appellant Mahendra Mahto was armed with a gun whereas appellant Bhola was armed with bhala and they surrounded his father and Pradeep Mahto. His father, Pradeep Mahto and others persons tried to stop the appellants from harvesting the land at which appellant Paran Mahto gave order to kill them. On his order appellant Bhola Mahto gave bhala blow to Pradeep Mahto and appellants Mahendra Mahto fired from his country made gun which hit his father Ashrafi Baitha who after sustaining the gun shot injury, ran away from the place of occurrence but fell down near the cattle-shed of one Ram Kishun Mahto. According to this witness Pradeep Mahto tied cloth at the place from where the blood was coming. On hulla, the villagers collected and chased away the accused persons. He has further stated that crop was sown in the land in question by Pradeep Mahto. 9. In paragraph 8 of the cross-examination, this witness has stated that other accused persons, who were put on trial and had been acquitted did not play any role in the occurrence. In paragraph 12 of the cross-examination he had stated that the land over which the crop was sown and dispute arose for its harvesting between Pradeep Mahto and the appellant was purchased by appellant Paran Mahto @Pran Mahto much before the occurrence in the year 1982. He denied to have stated before the Investigating Officer that it was appellant Paran Mahto who had sown the crop. 10. This witness in paragraph 15 of the cross-examination had stated that he had heard only one sound of firing. In paragraph 17 of the cross-examination he had stated that he remained at the place of occurrence for about 10 to 15 minutes and thereafter returned to his house where he narrated the incident to his mother PW 2 Jaya Devi. In paragraph 20 of the cross-examination he had stated that during the course of investigation, he had stated that it was appellant Paran Mahto @ Pran Mahto who had shot dead his father. 11. In paragraph 20 of the cross-examination he had stated that during the course of investigation, he had stated that it was appellant Paran Mahto @ Pran Mahto who had shot dead his father. 11. He denied the suggestion that it was Pradeep Mahto who had gone to the land alongwith a mob to harvest the crop and had resorted to brick-batting which caused injury to several persons and Pradeep Mahto asked Ram Yash Mahto to open fire and the firing made by Ramyash Mahto killed his father. 12. PW 2 Java Devi happens to be the wife of the deceased and she in her evidence has stated that while she was cooking she heard hulla from the side of the batai land of Pradeep Mahto and when she went there she found a mob consisting of appellants besides other accused persons including Ram Yash Mahto in the field. According to this witness, appellant Paran Mahto and Mahendra Mahto were armed with gun, whereas appellant Bhola Mahto and Pragash Mahto were armed with bhala. This witness in paragraph 1 of her Examination-in-Chief had clearly stated that it was appellant Paran Mahto @ Pran Mahto who fired which caused injury on the neck of the deceased, Ashrafi Baitha who, later on, died. However in paragraph 4 of the cross-examination, she had stated that it was appellant Mahendra Mahto who shot dead her husband. 13. She denied to have given any statement before the police during the course of investigation and also denied that she ever stated before the police that Pradeep Mahto got her husband killed by his mama. 14. PW-3 Mandodri Devi and PW 4 Shatrudhan Bhagat had altogether given a different version of the incident. They have stated in their evidence that while Pradeep Mahto, Ashrafi Baitha and a mob came to harvest the land belonging to appellant Paran Mahto @ Pran Mahto he tried to stop them at which Pradeep Mahto and other accused persons started assaulting them. According to PW-3 Mandodri Devi, while charge-sheeted accused persons were returning, the uncle of Nathuni Mahto resorted to firing which caused injury to Ashrafi Baitha on his neck and he died. 15. PW-4 in his deposition had specifically stated that it was Rarnyash Mahto, who had fired causing the death of Ashrafi Baitha. According to PW-3 Mandodri Devi, while charge-sheeted accused persons were returning, the uncle of Nathuni Mahto resorted to firing which caused injury to Ashrafi Baitha on his neck and he died. 15. PW-4 in his deposition had specifically stated that it was Rarnyash Mahto, who had fired causing the death of Ashrafi Baitha. In paragraph 6 of the cross-examination he had asserted that during the course of investigation before the police he stated that it was Ramyash Mahto who had shot dead the deceased. 16. PW-5 Mahavir Prasad is a witness to the First Information Report, the inquest report as also of seizure of the empty cartridges and pieces of bricks from the place of occurrence. PWs 6, 7, 8 and 9 have been tendered. 17. Mr. Pushkar Narain Shahi, appearing on behalf of the appellants submits that there is vital contradiction in the evidence of PW 1 and PW 2 on one side and PW 3 and PW 4 on another side in regard to the manner of occurrence as also the genesis of the occurrence and, as such, it shall be unsafe to sustain the conviction of the appellants in such a state of evidence. 18. Mr, Lala Kailash Bihari Prasad. Additional Public Prosecutor, however, submits that contradiction in the evidence of prosecution witnesses are not such to discard their testimony altogether. 19. Having considered the rival submission, I find substance in the submission of Mr. Shahi. PW 1 Shatrudhan Kumar in his evidence has stated that it was appellant Mahendra Mahto who shot dead his father and appellant Paran Mahto had also resorted to firing. However, in paragraph 15 of the cross-examination he admits to have heard only one gun firing sound. PW-2 Jaya Devi, who is none other than the wife of the deceased in her examination-in-chief has clearly stated that it was appellant Paran Mahto who shot dead her husband, whereas in the cross-examination she has stated that he was shot dead by appellant Mahendra Mahto. PW-2 Jaya Devi, who is none other than the wife of the deceased in her examination-in-chief has clearly stated that it was appellant Paran Mahto who shot dead her husband, whereas in the cross-examination she has stated that he was shot dead by appellant Mahendra Mahto. PW-3 Mandodri Devi who according to the evidence of PW-1 Shatrudhan Kumar had land adjacent to the disputed land, had clearly stated that the deceased died on account of gun shot injury caused by Mama of Nathuni Mahto, namely, Ram Jash Mahto whereas PW 4 is emphatic in his deposition that it was Ram Yash Mahto (since acquitted) who resorted to firing, which caused injury on the neck of the deceased. 20. I would have ignored the contradiction in the evidence of PW-2 Jaya Devi in the examination-in-chief and the cross-examination but PW 1 Shatrudhan Kumar in one side and PW-3 Mandodri Devi and PW-4 Shatrudhan Bhagat are giving different version in regard to the vital issue of assault on the deceased. In such circumstance, it shall be unsafe to brush aside the contradiction in the evidence of PW 2 Jaya Devi. 21. From the discussion aforesaid, it is evident that there is vital contradiction in regard to an important fact as to who had assaulted the deceased. According to PW 1 Shatrudhan Kumar the deceased was shot dead by appellant Mahendra Mahto and appellant Paran Mahto @ Pran Mahto had also fired whereas according to PW 2 Jaya Devis evidence in the examination-in-chief, it was Paran Mahto who shot dead the deceased. PW 3 Mandodri Devi, who according to PW 1 Shatrudhan Kumar is a competent witness had clearly stated that the deceased was shot dead by the uncle of Nathuni Mahto, whereas according to PW 4 he was shot dead by Ramyash Mahto. 22. It is relevant here to state that it has come in the evidence that Ram Yash Mahto is the uncle of Nathuni Mahto. In my opinion in a state of evidence like this where there is a vital contradiction in regard to the identity of the accused who assaulted the deceased, it shall be unsafe to sustain conviction of the appellants relying on such evidence. 23. In my opinion in a state of evidence like this where there is a vital contradiction in regard to the identity of the accused who assaulted the deceased, it shall be unsafe to sustain conviction of the appellants relying on such evidence. 23. It is relevant here to state that while finding the appellants guilty of the offence the learned Judge observed as follows : "PW-1 (Shatrughna Kumar) informant of this case has categorically supported his case. He was subjected to lengthy cross-examination but he stood the test of cross-examination. PW-2 (Jaya Devi) has also corroborated the evidence, of PW-1. She has stated that Paran Mahto shot at her husband at his neck who died near the bathan of Ram Kishan Mahto. PW-3 (Mandodari Devi) has also supported the case of the prosecution. The other witness Shatrughana Bhagat has also stated that Asarfi Baitha was killed by fire-arm injuries." 24. Mr. Shahi points out that the learned Judge while observing that PW 3 Mandodri Devi had supported the case of the prosecution committed an error of record. He also points out that PW-4 Shatrudhan Kumar had also not supported the case of prosecution. 25. Mr. Prasad however, contends that while appreciating the evidence the learned Judge has not committed any such error. He points out that PW-4 Shatrudhan Kumar had in fact stated that the deceased died of firearm injury. 26. I have quoted the evidence of PW 3 Mandodri Devi in the earlier paragraphs of this judgment and in fact in paragraph 1 of the examination-in-chief she had categorically stated that it was the Mama of Nathuni Mahto i.e. Ram Yash Mahto who had shot dead the deceased. In paragraph 8 of the cross-examination she had admitted to have stated before the police during the course of investigation that it was Ramyash Mahto who shot dead the deceased. She had reiterated the same in paragraph 7 of the cross-examination. It is relevant here to state that in her deposition this witness has stated that it was Mama of Nathuni Mahto who had shot dead the deceased and she had further stated that the name of his-Mama is Ramyash Mahto. So far as PW 4 Shatrudhan Bhagat is concerned, he has also stated in his examination-in-chief that it was Ramyash Mahto who had shot dead the deceased. He has also admitted to have made this statement before the police. So far as PW 4 Shatrudhan Bhagat is concerned, he has also stated in his examination-in-chief that it was Ramyash Mahto who had shot dead the deceased. He has also admitted to have made this statement before the police. He has stated the same in his cross-examination. From what has been found above, it is evident that PW 3 and PW 4 have not supported the case of the prosecution and have given entirely a different story. 27. True it is that PW 4 had stated that the deceased died of gun shot injury but in my opinion that is not relevant and what is relevant is, who had caused the gun shot injury. Even at the cost of repetition, I may state that this witness had clearly stated all through that it was Ramyash Mahto who had shot dead the deceased. Thus, in my opinion, the learned Judge had committed serious error in holding that the evidence of PW 3 Mandodri Devi and PW 4 Shatrudhan Bhagat support the case of the prosecution, while recording conviction. 28. Mr. Shahi, points out that the Investigating Officer of the case has not been examined and this itself vitiates the judgment of conviction. Mr. Prasad, however argues that mere non-examination of the Investigating Officer itself shall not vitiate the judgment of conviction. 29. Having appreciated the rival submission, I do not have the slightest hesitation in accepting the broad submission of Mr. Prasad that non-examination of the Investigating Officer, shall itself not vitiate the conviction. In my opinion, non examination of the Investigating Officer in fact shall have bearing only, when that causes prejudice. During the course of examination of PW-1 to PW-4 it has been pointed out to those witnesses the statements purportedly made by them during the course of investigation which has bearing on the guilt or otherwise of the accused persons. It is trite that the statement of the witnesses recorded during the course of investigation can be used for contradicting them but in the present case in the absence of the Investigating Officer, appellants did not get that opportunity. As the same shall have bearing on adjudication of the guilt of the appellants, I am of the opinion that the appellants have been seriously prejudiced and this also renders the impugned judgment of conviction and sentence illegal in the eye of law. 30. As the same shall have bearing on adjudication of the guilt of the appellants, I am of the opinion that the appellants have been seriously prejudiced and this also renders the impugned judgment of conviction and sentence illegal in the eye of law. 30. As stated earlier these appellants were not charge-sheeted by the police and they were summoned to face the trial by the learned Judge in exercise of its power under Sec. 319 of the Code of Criminal Procedure even before the evidence has commenced. Mr. Shahi contends that the order summoning the appellants to face the trial being without jurisdiction, the trial itself has vitiated and this also renders the impugned judgment bad in law. In support of the submission he has placed reliance on a three Judges Bench decision of the Supreme Court in the case of Ranjit Singh v. State of Punjab and my attention has been drawn to paragraphs 19, 20 as also 24 of the judgment, which read as follows : "19. So from the stage of committal till the Sessions Court reaches the stage indicated in Sec. 230 of the Code, that Court can deal with only the accused referred to in Sec. 209 of the Code. There is no intermediary stage till then for the Sessions Court to add any other person to the array of the accused. "20. Thus, once the Sessions Court takes cognizance of the offence pursuant to the committal order, the only other stage when the Court is empowered to add any other person to the array of the accused is after reaching evidence collection when powers under Sec. 319 of the Code can be invoked. We are unable to find any other power for the Sessions Court to permit addition of new person or persons to the array of the accused Of course it is not necessary for the Court to wait until theentire evidence is collected for exercising the said powers." 24. For the foregoing reasons, we find it difficult to support the observations in Kishun Singh case that powers of the Sessions Court under Sec. 193 of the Code to take cognizance of the offence would include the summoning of the person or persons whose complicity in the commission of the trial can prima facie be gathered from the materials available on record." 31. Mr. Mr. Prasad, however contends that after committal of the case and before recording of the evidence starts the learned Judge possesses jurisdiction to summon such accused persons for trial, who have not been committed to the Court of Sessions, in exercise of the power under Sec. 193 of the Code of Criminal Procedure and in support of the submission, reliance has been placed on a two Judges Bench decision of the Supreme Court in the case of Kishun Singh V/s. State of Bihar and my attention has been drawn to paragraph 17 of the judgment which reads as follows ; "For the reasons stated above while we are in agreement with the submission of the learned counsel for the appellants that the stage for the exercise of power under Section 319 of the Code had not been reached, inasmuch as the trial had not commenced and evidence was not led, since the Court of Sessions had the power under Sec. 193 of the Code to summon the appellants as their involvement in thecommissioh of the crime prima facie appeared from the record of the case, we see no reason to interfere with the impugned order as it is wellsettled that once it is found that the power exists the exercise of power under a wrong provision will not render the order illegal or invalid. We, therefore, dismiss this appeal." 32. Reliance has also been placed on a two Judges Bench decision of the Supreme Court in the case of Nisar and another V/s. State of Uttar Pradesh wherein it has approved the enunciation of law in the case of Kishun Singh (supra) in the following words : "Thus, on a plain reading of Sec. 193, as it presently stands once the case is committed to the Court of Sessions by a Magistrate under the Code, the restriction placed on the power of the Court of Session to take cognizance of an offence as a Court of original jurisdiction gets lifted. On the Magistrate committing the case under Sec. 209 to the Court of Sessions the bar of Sec. 193 is lifted thereby investing the Court of Sessions complete and unfettered jurisdiction of the Court of original jurisdiction to take cognizance of the offence which would include the summoning of the person or persons whose complicity in the commission of the crime can prima facie be gathered from the material available on record." 33. Reliance has also been placed on a decision of the Supreme Court in the case of M/s Swil Limited V/s. State of Delhi and my attention has been drawn to paragraph 7 of the judgment which reads as follows : "Further, in the present case there is no question of the referring to the provisions of Sec. 319, Cr.P.C. That provision would come into operation in the course of any inquiry into or trial of an offence. In the present case, neither the Magistrate was holding inquiry as contemplated under Sec. 2(g), Cr.P.C. nor the trial had started. He was exercising his jurisdiction under Sec. 190 of taking cognizance of an offence and issuing process. There is no bar under Section 190, Cr.P.C. that once the process issued against some accused, on the next date, the Magistrate cannot issue process to some other persons against whom there is some material on record, but this name is not included as accused in the charge-sheet." 34. Mr. Shahi is right when he contends that from the stage of committal till the stage of evidence collection commences, the Sessions Court can deal with only the accused who had been committed to the Court of Sessions and there is no stage in between conferring jurisdiction to the Sessions Court to add any other persons to the array of the accused. This has been said so in emphatic terms by the Supreme Court in the casee of Ranjit Singh (supra). However, at the same time Mr. Prasad is also right in contending that such a power can be exercised by the Sessions Judge under Sec. 193 of the Code of Criminal Procedure on the authority of the Supreme Court in the case of Kishun Singh (supra). However, at the same time Mr. Prasad is also right in contending that such a power can be exercised by the Sessions Judge under Sec. 193 of the Code of Criminal Procedure on the authority of the Supreme Court in the case of Kishun Singh (supra). From the reading of the judgment of the Supreme Court in the case of Kishnu Singh (supra) and Nisar (supra) as also Ranjit Singh, it is evident that power under Sec. 319 of the Code of Criminal Procedure covers post-cognizance stage where in the course of inquiry and trial the involvement and complicity of a person had surfaced, further power under the aforesaid section can be invoked only if evidence surfaces in the course of inquiry or trial, disclosing the complicity of a person other than the persons already arrayed before it. It is equally well-settled that evidence as contemplated under Sec. 319 of the Code of Criminal Procedure is the evidence tendered during trial of the case, if the offence is triable by the Court of Sessions. There is unanimity in the opinion of the Supreme Court on the aforesaid question in the case of Kishun Singh (supra) Nisar (supra) and Ranjit Singh (supra). 35. However, in the case of Kishun Singh the Supreme Court found that even before the stage for the exercise of the power under Sec. 319 of the Code of Criminal Procedure reaches, the Court of Sessions had the power under Section 193 of the Code of Criminal Procedure to summon such accused person whose involvement in the commission of the crime prima facie appear from the record of the case. However, according to the decision of the Ranjit Singh (supra) such a power cannot be exercised. It may be stated that the judgment rendered by the Supreme Court in the case of Kishun Singh, which has been followed by Nisar is the two Judges Bench decision whereas the judgment rendered in the case of Ranjit Singh is by three Judges. The question therefore, is as to which judgment binds this Court. 36. Mr. Shahi contends that the three Judges Bench judgment of the Supreme Court in case of Ranjit Singh binds this Court whereas Mr. Prasad submits that the number of Judges constituting the Division Bench is of no relevance and the judgment of Kishun Singh being on sound principle, is file to be followed. 36. Mr. Shahi contends that the three Judges Bench judgment of the Supreme Court in case of Ranjit Singh binds this Court whereas Mr. Prasad submits that the number of Judges constituting the Division Bench is of no relevance and the judgment of Kishun Singh being on sound principle, is file to be followed. In this connection my attention has been drawn to a decision of the Supreme Court in the case of Javed Ahmed V/s. State of Maharashtra which in his submission has clearly held that a Bench consisting of three Judges of the Supreme Court cannot overrule two Judges Bench decision of the Supreme Court and my attention has been drawn to the following passage from the said judgment. The case also raises the further question whether a Division Bench of three Judges can purport to overrule the judgment of a Division Bench of two Judges merely because three is larger than two. The Court sits in Division Bench of two and three Judges for the sake of convenience and it may be inappropriate for a Division Bench of three Judges to purport to overrule the decision of a Division Bench of two Judges." 37. Having given my most anxious consideration, I am of the opinion that the decision of this Court in the case of Ranjit Singh inter alia holding that the Sessions Court does not have any jurisdiction to permit addition of new person in the array of accused before reaching the stage of evidence collection and the power to array accused not committed for trial does not flow from Sec. 193 of the Code of Criminal Procedure. It is relevant here to state that the three Judges Bench of the Supreme Court while rendering its judgment in Ranjit Singh had considered in detail the ratio of Kishun Singh and found "it difficult to support the observations in Kishun Singh case that power of the Sessions Court under Sec. 193 of the Code to take cognizance of the offence would include the summoning of the person or persons whose complicity in the commission of the trial can prima facie be gathered from the materials available on record." 38. It is not the case that Supreme Court in Ranjit Singh case rendered its decision without considering the case of Kishun Singh. It is not the case that Supreme Court in Ranjit Singh case rendered its decision without considering the case of Kishun Singh. Further the judgment in Ranjit Singh is by a three Judges Bench, whereas that of Kishun Singh and Nisar have been rendered by a Bench of two Judges. In my opinion, in such a contingency this Court is bound to follow the opinion expressed by larger Bench of the Supreme Court in preference to the opinion of smaller Bench. The view which have taken finds support from the judgment of the Supreme Court in the case of State of Uttar Pradesh V/s. Ram Chandra Trivedt in which in paragraph 22 of the judgment it has been held as follows : "It is also to be borne in mind that even in cases where a High Court finds any conflict between the views expressed by larger and smaller Benches of this Court, it cannot disregard or skirt the views expressed by the larger Benches. The proper course for a High Court in such a case, as ob- . served by this Court in Union of India V/s. K.S. Subramanian decided on July 30, 1976 to which one of us was a party, is to try to find out and follow the opinion ex-pressed by larger Benches of this Court in preference to those expressed by smaller Benches of the Court which practice, hardened as it has into a rule of law is followed by this Court itself." 39. Thus, I am of the opinion that the learned Judge erred while summoning the appellants for trial in exercise of power under Sec. 319 of the Code of Criminal Procedure and such power is not available under Sec. 193 of the Code. Now the question is as to what effect it shall have in the trial. Appellants had not challenged the said order, faced the trial resulting into their conviction. 40. Mr. Shahi contends that the very summoning of the appellants to face trial being illegal the entire trial has been vitiated. Mr. Prasad, however joins the issue and points out that the appellants faced the trial without any murmur and invited the judgment on merit and having failed to obtain a favourable order, later on, he cannot be permitted to say that the trial has been vitiated. Mr. Prasad, however joins the issue and points out that the appellants faced the trial without any murmur and invited the judgment on merit and having failed to obtain a favourable order, later on, he cannot be permitted to say that the trial has been vitiated. I have given serious thought to the rival submission and I am inclined to take a view that the trial has been vitiated. Foundation for exercise of the jurisdiction under Sec. 319 of the Code is availability of evidence during the enquiry and trial. This is lacking in the present case and in that view of the matter there is no escape from the conclusion that the order passed by the learned Judge summoning the appellants to face trial was completely without jurisdiction. In my opinion, this defect goes to the root of the matter. Simply because the appellants did not assail the same shall not come to . the rescue of the prosecution. I am inclined to take a view that it has vitiated the trial. 41. By order dated 30th July, 2001 appellant No. 1 Pragash Mahto and appellant No. 4 Bhola Mahto and by order 1.5.2002 appellant No. 2 Paran Mahto @ Pran Mahto were directed to be released on bail. However the prayer for bail of the appellant No. 3 Mahendra Mahto has been rejected. 42. In the result, the appeal is allowed, impugned judgment of conviction and sentence is set aside. Appellant No. 3 Mahendra Mahto is in jail, he be set at liberty forthwith unless required in any other case. Appellant Nos. 1, 2 and 4 above named are discharged of their bail bonds. Syed Md.Mahfooz Alam, J. 43 I agree.