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2007 DIGILAW 150 (PAT)

Jagdish Yadav And Anr. v. State Of Bihar

2007-01-19

ABHIJIT SINHA

body2007
Judgment 1. The two petitioners who have been summoned under Sec.319 Cr.P.C. to face Sessions Trial No. 218 of 2003 pending in the Court of learned 1st Additional Sessions Judge, Katihar, are aggrieved by order dated 7.10.2006. 2. It appears that one Kishan Lal Rai gave his fardbeyan at about 1 P.M. on 29.9.2002 in respect of an occurrence which took place earlier at about 3 P.M. on 28.9.2002 and on the basis thereof Kadwa P.S. Case No. 139 of 2002 was registered under Sections 147, 323, 324, 341, 447, 379 and 504 I.P.C. against six persons named therein. It is said that when the informant alongwith his wife and brother Raju Rai went to the Parlia Haat and enroute return home when they reached near the Flour Mill of co-villager, Prem Lal Sharma, all the six F.I.R. named accused variously armed with Farsa, Kulhari and Lathi alongwith three unknown others surrounded them and on the orders of accused Arjun Rai to kill and to do away the informant, Arjun Rai himself dealt 3-4 Farsa blows on the head of the informant and accused Baijnath Rai gave a Kulhari blow on his head whereas accused Sheo Nath Rai and Darshan Rai assaulted him with means of lathi and accused Rajesh Rai with an intention to kill pointed his gun at the informant. It is said that seeing the situation the wife and brother of the informant attempted to save him from assault but they too were assaulted and sustained injuries. It is further said that upon the alarm raised by the informant several persons of the locality arrived and saved the situation. The accused persons are said to have decamped with the items purchased at the Haat, the informants silver chain, ear rings of the wife and cash worth Rs. 19,000/-. The injured were removed to the hospital and it is said that the said attack was in consequences of premeditated plan to cause injuries to the informant and his wife, as a result of a dispute which had taken place earlier between his brother Ramu and Dropati Devi. 3. After due investigation a charge-sheet was submitted and on the basis thereof cognizance was also taken. 3. After due investigation a charge-sheet was submitted and on the basis thereof cognizance was also taken. It appears that in course of trial in the court of sessions charge was framed against six F.I.R. named accused and while deposing P.W. 1, Lalita Devi, the wife of the informant, P.W. 2, Raju Rai, the brother of the informant and P.W. 3, the informant himself named these petitioners as also having participated at the occurrence and that too when they had not named the petitioners in their statements under Sec.161 Cr.P.C. It further appears that on the basis of this evidence a petition was filed by the informant to summon the two petitioners as additional accused under Sec.319 Cr.P.C. and the trial court having been satisfied therewith summoned the two petitioners herein under Sec.319 Cr.P.C. to face the trial alongwith other accused already sent up. 4. It has been submitted on behalf of the petitioners that the impugned order has been passed mechanically and without application of the mind inasmuch as the court was guided only by the depositions of the three witnesses in court and did not pay any heed to their statements under Sec.161 Cr.P.C. and the fardbeyan of the informant where these petitioners were not named. It has also been submitted that these three witnesses though naming the petitioners in their depositions in court, however, do not attribute any overt act to them. It has further been submitted that the petitioners happen to be the co-villagers of the informant and are on inimical terms with the informant and presumably that may have led to false implication of these petitioners in the situation narrated above. 5. In Michael Machado vs. Central Bureau of Investigation, (2000)3 SCC 262 , the Supreme Court has interpreted the words "the court may proceed against such person" as used in Sec.319 Cr.P.C. The Apex Court held that the power is discretionary and should be exercised only to achieve criminal justice and that the court should not turn against another person whenever it comes across evidence connecting that another person also with the offence. The Apex Court further held that a judicial exercise is called for, keeping a conspectus of the case, including the stage at which the trial has proceeded already and the quantum of evidence collected till then, and also the.amount of time which the Court had spent for collecting such evidence. The Apex Court further held that a judicial exercise is called for, keeping a conspectus of the case, including the stage at which the trial has proceeded already and the quantum of evidence collected till then, and also the.amount of time which the Court had spent for collecting such evidence. The Court while examining an application under Sec.319 Cr.P.C. has to bear in mind that there is no compelling duty on the Court to proceed against other persons. In nutshell, it means for exercise of discretion under Sec.319 Cr.P.C., all relevant factors including the one noticed above, have to be kept in view and an order is not required to be made mechanically merely because some evidence had come on record implicating the person sought to be added as an accused. 6. Now applying the aforesaid test to the facts of the instant case, it appears that the petitioners herein, were neither named in the fardbeyan of the informant (P.W. 3) nor in the statements under Sec.161 Cr.P.C. of the informant (P.W. 3), his wife (P.W. 1) and his brother (P.W. 2). That apart no overt act has been attributed to the petitioners and the three witnesses have in unison stated in Court only that the two petitioners had also participated at the occurrence. It also appears from the impugned order dated 7.10.2006 that only three witnesses had been examined at the trial. 7. The High Court in exercise of its power under Sec. 482 Cr.P.C. will not ordinarily interfere with the decision arrived at by the trial court or the opinion formed by it but where such decision or opinion cannot stand the test of satisfaction and where the allegations do not disclose prima facie a case attracting penal action, proceeding against such person would be an abuse of the process of the court. 8. Due regard being had to the facts and the circumstances of the case and the discussions made above, I am of the opinion that the court has erred in summoning the two petitioners as additional accused to face the trial and this to my mind would be an abuse of the process of the court. 9. Accordingly, the impugned order is set aside and the application is allowed.