Research › Search › Judgment

Jharkhand High Court · body

2005 DIGILAW 624 (JHR)

Bhagwat Bhandari v. State Of Jharkhand

2005-08-12

N.N.TIWARI

body2005
ORDER Narendra Nath Tiwari, J. 1. In this writ application, the petitioner has prayed for quashing the order dated 8.4.2005 passed by the learned 7th Additional Sessions Judge, Godda in Sessions Case No. 54/2003, whereby the petitioner has been summoned to face trial as an additional accused. 2. The petitioners case is that previously, before framing of charge, the informant had filed a petition dated 24.6.2002 under Section 319, Cr PC, where upon the Court had issued summons to the petitioner calling upon him to face the trial as an additional accused, who was not sent up for trial in the charge- sheet. The petitioner had challenged the said order in the Patna High Court in Cr. Revision No. 635/99 (P). The said Cr. Revision was disposed of the order dated 3.8.1999 allowing the revision. The petitioners case is that an FIR was lodged under Sections 451, 323, 307 and 341, IPC against three named persons, namely, Bhagwat Bhandari, Shiv Narayan Bhandari and Divakar Bhandari but after investigation the police had submitted charge-sheet being No. 20/98 under Sections 307, 323, 451 and 341, IPC on 13.4.1998, only against two persons, namely, Shiv Narayan Bhandari and Divakar Bhandari. However, the Sub-Inspector, Poraiyahat Police Station, by his letter dated 25.8.1998 addressed to the Chief Judicial Magistrate, Godda, had informed that as per the direction of the higher officers, there will be further investigation against the petitioner but the investigation as against the two others has been concluded. On 9.7.1999 the informant had also filed a protest petition before the Chief Judicial Magistrate, Godda and also sought a direction upon the Officer Incharge, Poraiyahat police station to send report about the development in investigation against the petitioner. The other accused except the petitioner were sent up for trial. Thereafter the case was committed to Sessions for trial before the First Additional Sessions Judge, Godda. In course of Sessions trial as many as 17 witnesses were examined and cross-examined and at that stage the petitioner is sought to summoned for facing the trial by the impugned order passed under Section 319, Cr PC which is wholly illegal and arbitrary inasmuch as the power under Section 319, Cr PC should not be exercised at the fag end of trial. Evidence against the petitioner is also not sufficient for his conviction and if the impugned order is allowed to stand, there will be a gross injustice to the petitioner. 3. Mr. A.K. Kashyap, learned counsel appearing for the petitioner, reiterated the said facts on the ground and in support of his contention, relied upon the decisions in the case of Sahdeo Rai v. State of Jharkhand, reported in 2005 (2) East Cr C 449; Michael Machado v. CBI, ; Sohan Lal v. State of Rajasthan, reported in 1990 SCC (Cri) 650 and Basudeo Mondal v. Dud Kumar Pramanick, reported in 1982 Cr LJ 1654. 4. On the other hand, learned JC to GP II took a preliminary objection that this writ application is not maintainable in view of the effective alternative remedy of revision and even on merit, there is no infirmity or illegality in the impugned order. The learned counsel submitted that the Court below has recorded elaborate reasons in support of the order and the Court below has noticed that the petitioner has not been charged-sheeted in the case and police has submitted final form declaring that the case against the petitioner is false. In course of trial the witnesses, namely, PWs 1, 2 and 12 have given the name of the petitioner as an associate in taking part in the commission of the alleged offences and keeping in view of the said evidences and the observation of the Patna High Court, the said order has been passed. Learned counsel further submitted that there is sufficient material on record to proceed against the petitioner, who was not an accused before the learned Court below and there is no illegality in the impugned order passed under Section 319, Cr PC. The learned counsel has placed reliance on the decisions in the case of Girish Yadav v. State of M.P., ; Smt. Rukhsana Khatoon v. Sakhawat Hussain, and Shashikant Singh v. Tarkeshwar Singh, . Learned counsel submitted that the Court has ample power to exercise jurisdiction under Section 319, Cr PC and to summon the additional accused if on the basis of the evidences recorded in course of an enquiry in to or trial of the offence, he appears to have committed the offence. 5. Learned counsel submitted that the Court has ample power to exercise jurisdiction under Section 319, Cr PC and to summon the additional accused if on the basis of the evidences recorded in course of an enquiry in to or trial of the offence, he appears to have committed the offence. 5. In order to appreciate the rival contentions of the learned counsel, it is useful to look into the provisions, contained in Section 319, Cr PC which runs as follows : "319. Power to proceed against other persons appearing to be guilty of offence.--(1) Where, in the course of any inquiry 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. (2) Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid. (3) Any person attending the Court, although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into; or trial of, the offence which he appears to have committed. (4) Where the Court proceeds against any person under Sub-section (1) then-- (a) The proceedings in respect of such person shall be commenced afresh, and the witness re-heard; (b) Subject to the provisions of Clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced." 6. It is clear from the plaint reading of Section 319, Cr PC that where in course of any enquiry into or trial of an offence it appears from the evidence that a person, who is not accused, has committed any offence for which he can be tried together with the accused, the Court may proceed against such person for the offence and if such person is not attending the Court, he may be arrested or summoned as the circumstances may require. 7. 7. In Basudeo Mandals case (supra), the Calcutta High Court held that the expression "any person not being an accused" in Section 319(1) means a person against whom no process has already been issued because if process has already been issued against a person, the question of adding him as an accused in the case and proceeding against him as contemplated in that section will not arise at all. It has been further held that where the Sub-Divisional Judicial Magistrate examined a complainant and directed under Section 202 investigation into the complaint and after considering the investigation report, issued process only to some of the persons named as accused in the complaint and transferred the case under Section 192 to Judicial Magistrate, the transferee Magistrate after examining the complainant and after considering police report, has jurisdiction under Section 319(1) to issue process to the other persons named as accused in the compliant if he has found that there is prima facie case against them also This decision, cited by the learned counsel for the petitioner, does not support his contention. 8. In Sohan Lals case (supra), the Apex Court held that there is need for caution in resorting to Sections 319. 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 person discharged subject to revision under Section 398 of the Code may not be lost sight of. This should be so because the complainants desire for vengeance has to be tempered with. Section 319 has to be read in consonance with Section 398. The necessity of making a further enquiry as envisaged in Section 398 cannot be obviated or circumvented by taking resort to Section 319. The word "discharge" in Section 398 means discharge of an offence relating to the charge within the meaning of Sections 227, 239, 245 and 249. Accordingly, the necessity of making a further enquiry as envisaged under Section 398 cannot be obviated or circumvented by taking resort to Section 379. The word "discharge" in Section 398 means discharge of an offence relating to the charge within the meaning of Sections 227, 239, 245 and 249. Accordingly, the necessity of making a further enquiry as envisaged under Section 398 cannot be obviated or circumvented by taking resort to Section 379. The discharge has to be substance and effect though there may not be a formal order. The language of the section does not indicate that the word "discharge" should be given a restricted meaning in the sense of absolute discharge where the accused is not at liberty after examination of the whole case. Viewing this case in the above parameter, it transpires that there is no order of discharge of an offence relating to the charge within the meaning of Sections 227, 239, 245, or 249, Cr PC, neither there is dismissal of complaint by the Magistrate under the provision of Section 203 and as such, the aforesaid decision of Sohan Lals case (supra) has got no application in the facts and circumstances of the case. 9. In the case of Michael Machado (supra), the Apex Court has considered the basic requirement of Section 319, Cr PC and held that the Court must have reasonable satisfaction from the evidence already collected during trial or in the enquiry and that it is not enough that the Court entertained some doubt, from the evidence, about the involvement of another person in the offence. In the instant case, there is nothing on record to show that the Court has issued summons to the petitioner only on some doubts appearing from the evidences about his involvement. Rather the Court has stated that the petitioner was named in the FIR and the material witness PW 12 has specifically named the petitioner for associating with other accused persons in commission of the alleged offence. This decision too is of no help to the petitioner. 10. Rather the Court has stated that the petitioner was named in the FIR and the material witness PW 12 has specifically named the petitioner for associating with other accused persons in commission of the alleged offence. This decision too is of no help to the petitioner. 10. In Sahdeo Rais case (supra), the Single Judge of this Court on the facts and in the circumstances of that case held that in the case in consideration the trial Court after perusing the evidence for delivery of judgment came to a finding that the petitioner has also played equal role and he should be summoned to face trial and since the trial was at the final stage, the learned Magistrate passed the order for separating the case from the other accused, who were also facing trial. It has been held that "there is no clinching evidence against the petitioner " and that "the trial is at the fag end," and an order summoning the petitioner under Section 319, Cr PC will be an abuse of the process of Court. In this case the evidence was not being perused for delivery of judgment. It is an admitted fact that the case is still at the stage of evidence, though several witnesses have been examined and in that view of the matter, this decision has got no application in the instant case. 11. In Ruksana Khatoons case (supra), it has been clearly held by the Apex Court that 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 persons named as an accused in the FIR and not charge-sheeted can be summoned for facing trial under Section 319, when the evidences of prosecution witnesses corroborate the role of those persons of the alleged incident. 12. In Shashi Kant Singhs case (supra), it has been held that a person summoned as accused pursuant to an order passed by a Court in exercise of power conferred by Section 319, can be tried for the offence for which he is summoned even after conclusion of trial wherein such an order of summoning was passed. 13. 12. In Shashi Kant Singhs case (supra), it has been held that a person summoned as accused pursuant to an order passed by a Court in exercise of power conferred by Section 319, can be tried for the offence for which he is summoned even after conclusion of trial wherein such an order of summoning was passed. 13. In Girish Yadavs case (supra), it has been held that there is enough power with the Court to exercise its jurisdiction under Section 319, Cr PC in the light of the evidences recorded by the Court, if the evidences show that there is involvement of the accused in the commission of offence and that he stands on the same pedestal as that of accused, who were facing the trial. 14. On careful consideration of the various precedents and the relevant provisions of law, I am the view that there is no legal infirmity in the impugned order of the learned Court below in summoning the petitioner for taking the trial along with the other accused persons, in view of the evidences of his role in commission of the offences under trial before the learned Court below, I, therefore, find no merit in this writ application. 15. Since this Court heard the parties at length, it has not gone into the preliminary objection of maintainability of this application against the impugned order. It is needless to say that in the cases, where there is effective alternative remedy like the provision for revision, the Courts are always slow in exercising extra-ordinary writ jurisdiction under Article 226 of the Constitution of India. 16. In the result, this application is dismissed but without any order as to costs.