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2007 DIGILAW 1716 (PAT)

Shashi Bhushan Rai v. State Of Bihar

2007-11-05

ABHIJIT SINHA

body2007
Judgment 1. Heard Sri S.N.P. Sinha, Senior Advocate, the learned counsel for the petitioners as also Sri Jharkhandi Upadhyay, the learned A.P.P. for the State. Although notice in the admission matter was validly served on Opposite Party No. 2, the informant, he has chosen not to appear and contest the application. 2. The petitioners are aggrieved by and seek the quashing of order dated 21.8.2006 passed by the learned Presiding Judge, Fast Track Court No. I, Sheohar at Sitamarhi in Sessions Trial No. 868 of 2005 (arising out of Tariyani P.S. Case No. 88 of 2002) whereby the petition filed by the prosecution for summoning the petitioners herein u/s. 319 of the Code of Criminal Procedure to face trial has been allowed. 3. It appears that one Upendra Singh gave his statement before the Tariyani Police at about 8.15 P.M. on 5.8.2002 in respect of an occurrence which took place earlier at about 4 P.M. It was alleged that at the relevant time while the informant was coming from village Kalso and had reached at Kalso Dhala, he saw a scuffle going on between his cousin, Ram Shrestha Singh and his son Amod Kumar Singh on the one hand and co-villager, Mahadeo Kunwar on the other. In the meantime the 9 F.I.R. accused (other than the petitioners herein) arrived and started assaulting Ram Shrestha Singh and his son and also started dragging them towards the house of Mahadeo Kunwar in order to kill them. The informant is said to have made attempts to intervene but Sukhan Rai fired from his Nalkatta which hit Mahadeo Kunwar. It is alleged that thereafter the accused persons dragged Ram Shrestha Singh and his cousin into the house and locking them therein again started assaulting them and the hue and cry raised by the two assaultees could be heard and after a short while silence descended. It was suspected that both had been killed. 4. On the basis of the aforesaid Fardbeyan Tariyani P.S. Case No. 88 of 2002 was registered against the 9 persons named in the fardbeyan under Ss. 302/34 of the Indian Penal Code. 5. It appears that on the basis of the fardbeyan given by Ramjhari Devi, the wife of Mahadeo Kunwar, Tariyani P.S. Case No. 87 of 2002 was registered against the 7 persons under Ss. 302/34 of the Indian Penal Code. 5. It appears that on the basis of the fardbeyan given by Ramjhari Devi, the wife of Mahadeo Kunwar, Tariyani P.S. Case No. 87 of 2002 was registered against the 7 persons under Ss. 307/34 and 354 of the Indian Penal Code as also 27 of the Arms Act. It further appears that in course of trial two witnesses were examined and on the basis of their statement and the petition filed by the prosecution the 9 petitioners herein have been summoned u/s. 319 of the Code of Criminal Procedure to face the trial alongwith other persons sent up. 6. It has been submitted on behalf of the petitioners that they are quite innocent and have been falsely dragged into this case. In this connection, it was sought to be submitted that whereas petitioners 1 and 2 have been named in the F.I.R. and their case was separated from that of the others before the case of the others being committed to the court of sessions petitioners 3 to 9 had not named in the F.I.R. It has also been submitted that although P.W. 1 had named all the 9 petitioners as having participated at the occurrence but curiously the statement of P.W. 1 u/s. 161 of the Code of Criminal Procedure had not been recorded by the police and as such the evidentiary value of the testimony of P.W.1 hardly lends any support to the prosecution story so it was sought to be submitted that P.W. 2, the informant in his testimony in court had not named petitioners 3 to 9 and had only named petitioners 1 and 2. On this premise, it was sought to be submitted by the learned counsel for the petitioners that the learned trial court had exceeded its jurisdiction to summon these petitioners u/s. 319 of the Code of Criminal Procedure when there was no material available before the court to act u/s. 319 of the Code of Criminal Procedure. 7. On this premise, it was sought to be submitted by the learned counsel for the petitioners that the learned trial court had exceeded its jurisdiction to summon these petitioners u/s. 319 of the Code of Criminal Procedure when there was no material available before the court to act u/s. 319 of the Code of Criminal Procedure. 7. The expression "any person not being the accused" occurring in Sec. 319 of the Code of Criminal Procedure for all practical purposes covers any person who is not being tried already by the court and the very purpose of enacting such provision like Sec. 319(1) of the Code of Criminal Procedure clearly shows that even persons who have been dropped by the police during investigation or who have not been sent up for trial but against whom evidence showing their involvement in the offence comes before the criminal court, are included in the said expression. This is an extraordinary power and should be used by court very sparingly and only if compelling reasons exist for taking cognizance against person of whom no notice as so far being taken. Reference in this connection may be made to the decisions of Joginder Singh V/s. State, AIR 1979 SC 339 and S.S. Khanna V/s. Chief Secretary, AIR 1983 SC 595 . 8. In the instant case, only two witnesses have been examined of whom P.W. 1 had not given statement before the police u/s. 161 of the Code of Criminal Procedure and P.W. 2, the informant had named only two of the 9 petitioners. Therefore, apparently there was no clinching material before the court to summon these petitioners u/s. 319 of the Code of Criminal Procedure and the impugned order of the court obviously is an abuse of the process of the court. Accordingly, the same is quashed and the application is allowed. 9. It is, however, made clear that after examination of more prosecution witnesses if any incriminating materials appear on record to show the involvement of these petitioners in the alleged crime then the trial court shall be at liberty to summon the petitioners u/s. 319 of the Code of Criminal Procedure to face the trial alongwith others who have already been sent up and proceed in accordance with law.