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2006 DIGILAW 407 (PAT)

Radha Mohan Gond v. State Of Bihar

2006-05-03

NAVIN SINHA

body2006
Judgment Navin Sinha, J. 1. Heard learned Counsel for the petitioner and the learned Counsel appearing on behalf of the opposite party No. 2. 2. The petitioners have been summoned by order dated 23.8.2002 to face trial under sec. 364 of the Indian Penal Code in exercise of powers u/s. 319 Cr.P.C. (hereinafter referred to as the Code) based on the deposition of PW 8, the victim himself, who has named them. 3. The FIR was originally lodged against unknown by the wife of the victim when he was abducted. Chargesheet came to be submitted against some accused. During trial PW 8, the victim himself deposed naming the present petitioners as having handed over arms to the abductors after they held PW 8 as hostage in the field and then proceeded onwards as narrated in detail in the deposition of PW 8. 4. Learned Counsel for the petitioners assailed the order summoning then on the ground that the court below had no jurisdiction to separate the trial of the petitioners from other accused who were already facing trial. The petitioners had necessarily to be tried along with the other accused. The impugned order-requiring them to be tried separately was therefore clearly illegal inasmuch as it separated the trial of the six old accused with the intention to expedite them. In any event, there was no allegation of kidnapping against the petitioners. Several prosecution witnesses had turned hostile. 5. Counsel appearing for opposite party No. 2 opposed the application and submitted that the petitioners had been Summoned in exercise of powers under Sec. 319 Cr. P.C. based on the depositions of the victim himself during trial. This by itself was sufficient without further more. 6. The Court has considered the respective submissions of the parties. 7. sec. 319 of the Code provides that such person summoned thereunder could be tried together with the other accused already facing trial. When this happens the proceedings in respect of such persons shall commence afresh and the witnesses reheard. In essence, the submission of the petitioners is that if powers u/s. 319 Cr.P.C. have been exercised any person summoned thereunder must be tried along with other accused already facing trial and the entire trial must commence denovo with fresh examination in chief and cross-examination of the witnesses for the prosecution and the defence. 8. This Court finds it difficult to accent the submission. sec. 8. This Court finds it difficult to accent the submission. sec. 319(1) of the Code uses the words "such person could be tried together with the accused..." while sec. 319(4)(a) mandates that the proceedings in respect of such person shall be commenced afresh and the witnesses reheard. The interpretation of the two provisions need not detain this Court, the same having fallen for consideration by the Hon ble Supreme Court in a judgment reported in - Shashi Kant Singh V/s. Tarkeshwar Singh and Anr. The apex Court was considering the question if a person could be summoned u/s. 319 of the Code after the trial of other accused had concluded, when his name had surfaced in depositions during the course of the trial. The High Court held that the trial having been Concluded end that since no sessions trial was pending Sec. 319 of the Code had no application as the pre-requisite for application thereof was, the pendency of a trial against another accused. Their Lordships held that undoubtedly the proceedings are required to be commenced afresh and the witnesses reheard in respect of an accused summoned u/s. 319 of the Code. There has to be a denovo, trial. But the question of such a person summoned to face trial had to be examined in the context of sec. 319(1) read with sec. 319(4)(a). 9. Interpreting the words "could be tried together with the accused" in Section 319(1) of the Code their Lordships held the same to be directory holding in the relevant extract of paragraph 10 quoted below that; ...could be" cannot under these circumstances be held to he "must be". The provision cannot be interpreted to mean that since the trial in respect of a person who was before the court has concluded with the result that the newly added person cannot be tried together with the accused who was before the court when order u/s. 319(1) was passed. The order would become ineffective and inoperative nullifying the opinion earlier formed by the court on the basis of evidence before it that the newly added person appears to have committed the offence resulting in an order of his being brought before the court. 10. The order would become ineffective and inoperative nullifying the opinion earlier formed by the court on the basis of evidence before it that the newly added person appears to have committed the offence resulting in an order of his being brought before the court. 10. Their Lordships thus held in paragraph 12 of the judgment: The mandate of law of fresh trial, is mandatory whereas the mandate that the newly added accused would be tried together with other accused directory 11. The conclusion in paragraph 13 of the judgment thus was; ...The construction to be placed on a provision like this has to commend to justice and reason, it has to be reasonable construction to promote the ends of justice. The worlds "could be" tried together with the accused in Section 319(1) cannot be said to be capable of only one construction. If it was so, approach to be adopted would be different since the intention of the Parliament is to be respected despite the consequences of interpretations. There is however, a scope for two possible construction. That being the position, a reasonable and common sense approach deserves to be adopted and preferred rather than a construction that would lead to absurd result of respondent No. 1 escaping the trial despite passing of an order against him on courts satisfaction u/s. 319(1) and despite the fact that the proceedings against him have to commence afresh.... 12. The emerging position in law thus is that the trial in respect of a person summoned u/s. 319 of the Code had mandatorily to be commenced afresh denovo, it was not mandatory that such person be only tried along with other accused. 13. In view of the aforesaid discussion and the judicious reasons given by the court below separating the trial of the present petitioners from the other accused this Court finds no reason to interfere with the same. In any event, no prejudice shall be caused to the petitioners. 14. The petitioners have clearly been named by the victim in his deposition. This Court can do no better than rely upon a judgment of the Supreme Court in the case of Rakesh V/s. State of Haryana reported in -. The appellant therein had been summoned in exercise of powers u/s. 319 Cr.P.C. in a case u/s. 376 and other provisions. The petitioners have clearly been named by the victim in his deposition. This Court can do no better than rely upon a judgment of the Supreme Court in the case of Rakesh V/s. State of Haryana reported in -. The appellant therein had been summoned in exercise of powers u/s. 319 Cr.P.C. in a case u/s. 376 and other provisions. Their Lordships at paragraph 14 of the judgment held: ...In our view, there cannot be a dispute that power u/s. 319 is to be sparingly used. But that would not mean, that when a prosecutrix names three persons who were involved in the serious crime are not to be added as accused by exercise of such power 15. The facts of this case reflects that the petitioners have been summoned on basis of the deposition of the victim of abduction who has named the petitioners as participants. The fact that they may not have been involved at the time of actual abduction but had met the abductors and given them arms whereafter the abductors proceeded with the victim, to this Court is not of much relevance at this stage. 16. This Court therefore finds no merits in this application, calling for interference with the order dated 23.8,2002 passed by Additional Sessions Judge, Fast Track Court No. III Buxar in Sessions Trial No. 30 of 2001 being 132 of 2002/251 of 2002. The application is therefore dismissed.