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2008 DIGILAW 571 (JHR)

Sudama Dubey v. State of Jharkhand

2008-06-10

R.R.PRASAD

body2008
Order This application filed under Section 482 of the Code of Criminal Procedure is directed against the order dated 5.2.2008 passed by Additional Sessions Judge (FTCIII), Palamau in ST. NO.1 06 of 2006 whereby learned Addittonal Sessions Judge refused to summon three persons, namely, Rama Pandey, Uday Chandra Pandey and Sanjiv Pandey under Section 319 of the Code of Criminal Procedure to face trial along-with other accused persons. 2. The facts giving rise to this application are that the informant, Sudama Dubey (P.W. 1) lodged the case alleging therein :that while he was sitting in the shop of one Basant Ram, four persons, namely, Rama Pandey, Sanjiv Pandey, Chowan Thakur and Panchu Pandey came over there in a Jeep and got the informant Sudama Pandey seated in that Jeep forcibly and brought at Bathan where Uday Chandra Pandey was present and on being asked when he got out from the Jeep, accused Uday Chandra Pandey exhorted other accused to kill him and thereupon Rama Pandey assaulted him with lathi and then other accused persons also assaulted. 3. On the basis of fardbeyan given by the informant, a case was registered against five persons, namely, Rarna Pandey, Sanjiv Pandey, Chhotan Thakur, Panchu Pandey and Uday Chandra Pandey and the matter was taken up for investigation but the Investigating Officer submitted charge-sheet against Chhatu Pandey, Panchu Pandey named in first information report and also against Newel Kishore Pandey and Girivar Pandey, who had never been named in the first information report unclose far three persons, namely, Rama Pandey, Uday Chandra Pandey and Sanjiv Pandey are concerned, they were exonerated from the charge but before filing the charge-sheet, when the informant suspected some foul play on the part of Investigating Officer, he had filed a protest petition by way of abundant precaution. However, on filing of the charge-sheet., charges were framed against those persons, who were charge-sheeted and the informant was examined as P.W. 1 and subsequently, 15 other witnesses were examined. However, on filing of the charge-sheet., charges were framed against those persons, who were charge-sheeted and the informant was examined as P.W. 1 and subsequently, 15 other witnesses were examined. Thereupon an application was filed under Section 319 of the Code of Criminal Procedure on 17.1.2008 stating therein that there has been ample evidence against the aforesaid three persons and as such, they be summoned to face trial along-with other accused persons but the court below refused to summon them to face trial after taking note of the fact that out of 16 witnesses, only informant (P.W. 1 ) and P.W. 16 have named the accused persons sought to be summoned and of them P.W. 16 is even not charge-sheet witness. 4. Being aggrieved with that order, the petitioner has preferred this application. 5. Learned counsel appearing for the petitioner submits that three persons, who were sought to be summoned had been named in the first information report with a specific allegation that they had assaulted the informant but the Investigating Officer deliberately did not submit charge-sheet against them and therefore, when the informant in course of trial deposed in the manner as the statement has been made in the first information report, an application was filed under Section 319 of the Code of Criminal Procedure for summoning them as there was ample evidence against accused persons to establish the case, prima facie, that they had committed offence but the court below without considering the provision as contained in Section 319 of the Code of Criminal Procedure in right perspective refused to summon them. 6. Learned counsel appearing for the petitioner fairly submits that though earlier in so many cases first being the case of Municipal Corporation of Delhi VS. 6. Learned counsel appearing for the petitioner fairly submits that though earlier in so many cases first being the case of Municipal Corporation of Delhi VS. Ram Kishun Rohtogi [ (1983)1 SCC 1 ] and others being the cases of Michael Machado vs. Central Bureau of Investigation [ (2000)3 SCC 262 ], Rakesh Kumar and Another vs. State of Haryana [ (2001)6 SCC 248 ], Y. Sarala Pandey vs. Puthur Rami Reddy and Another [ (2007)4 SCC 773 ] and Lok Ram vs. Nihal Singh and Another [ (2006) 10 SCC 192 ], the Hon 'ble Supreme Court has held that the power given under Section 319 of the Code is an extraordinary power conferred in Court which should be used very sparingly and only if compelling reasons exist for taking action against the persons against whom action had not been taken earlier and even in one of the cases in Mohd. Safi vs. Mohd. Rafiq and Another (2007(3) JLJR 55 (SC)] it has been held that before the court exercises his discretionary jurisdiction in terms of Section 319 of the Code of Criminal Procedure which should arrive at the satisfaction that there exists possibility that the accused so summoned in all likelihood would be convicted but recently the Hon'ble Supreme Court in the case of Rajendra Singh vs. State of Uttar Pradesh and Another [ (2007)7 SCC 378 ] has held that the power under Section 319 of the Code has been conferred on the Court to ensure that justice is done to the society by bringing to book all those guilty of an offence and hence, there is no rationale in fettering that power and the discretion either by calling it extraordinary or by stating that it will be exercised only in exceptional circumstances and as such wherever prima facie case is made out for summoning an accused under Section 319, the Court must exercise his jurisdiction judiciously and therefore, the order passed by the court below refusing to summon even though there has been evidence on the record showing prima facie about the participation of the petitioner in the alleged offence, the court has committed grave error in passing the impugned order and hence, it is fit to be set aside. 7. 7. There has been no denying of the fact that the Hon' ble Supreme Court in many cases reference of which has been given hereinbefore has held that the power under Section 319 of the Code is an extraordinary power which has been conferred on the court and hence it be used very sparingly only if compelling reasons exist for taking action against the persons against whom action has not been taken earlier Such proposition was laid down after considering the clause appearing in Section 319 of the Code of Criminal Procedure in those cases including in a case of Michael Machado vs. Central Bureau of Investigation (supra). Subsequently in the case of Mohd. Safi vs. Mohd. Rafiq and Another (supra) the Hon' ble Supreme Court has even gone to hold that before the court exercises this discretionary jurisdiction in terms of Section 319 of the Code of Criminal Procedure it must arrive at the satisfaction that there exists a possibility that the accused so summoned in all likelihood would be convicted though later the Hon 'ble Supreme Court in one of the cases, namely, Rajendra Singh vs. State of Uttar Pradesh and Another (supra) did observe that there is no rationale in fettering power and the discretion which the Court has under Section 319 of the Code either by calling it extraordinary or by stating that it will be exercised only in exceptional circumstances. While holding so, notice does not seems to have been taken of a case of Michael Machado vs. Central Bureau of Investigation (supra) wherein the Court after construing the word "the court may proceed against such per-sons" appearing in Section 319 of the Code of Criminal Procedure held that 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 with the evidence connecting that person also with the offence. The Court further held that a judicial exercise is called for keeping in conspectus of the case, including the stage on which the trial has already proceeded and the quantum of evidence collected till then and also the amount of time which the court had spent in collecting such evidence. The Court further held that a judicial exercise is called for keeping in conspectus of the case, including the stage on which the trial has already proceeded and the quantum of evidence collected till then and also the amount of time which the court had spent in collecting such evidence. It has been further held that while dealing with an application' under section 319 of the Code of Criminal Procedure, the Court has to bear in mind that there is no compelling duty on the Court to proceed against other person. 8. Now turning to the case of Rajendra Singh vs. State of Uttar Pradesh and Another (supra) to note the facts and circumstances of the case which led the Hon' ble Supreme Court to make such observation as has been noted above as it has been well settled that every judgment must be read as applicable to the particular facts proved or assumed to be proved, since the generality of the expressions which may be found they are not intended to be expositions of the whole law, but are governed and qualified by the particular facts of the case in which such expressions are to be found. In other words, a case is only an authority for what it actually decides. 9. Facts of the aforesaid case are that wife, son and brother-in-law of one Nigam Singh (informant) were murdered and while the trial was going on, the accused persons started putting pressure upon Nigam Singh not to give evidence in the said case but Nigam Singh never succumbed to that pressure. Hence, the other day, while Nigam Singh arrived at a place on a Scooter, the accused persons namely, Kapil Dev Singh and Daya Singh accosted him and then Daya Singh on being instigated by Kapil Dev Singh shot dead Nigam Singh and thereupon, a case was lodged but the police did not find any complicity of the accused Kapil Dev Singh and hence, submitted charge-sheet only against Daya Singh. When the trial commenced, the informant of that case, namely, Rajendra Singh gave evidence stating therein about the presence and role being played by Kapil Dev Singh in the alleged offence and hence, an application was filed under Section 319 of the Code of Criminal Procedure for summoning the accused Kapil Dev Singh to face trial and when the said application was allowed, Kapil Dev Singh filed an application before the High Court under Section 482 of the Code of Criminal Procedure and the High Court after taking into consideration the statement of six witnesses recorded under Section 161 of the Code of Criminal Procedure did hold that Kapil Dev Singh could not have been present at the scene of the commission of crime and hence, quashed the order under which Kapil Dev Singh was summoned. When the matter came before the Hon 'ble Supreme Court, the Hon' ble Supreme Court set aside the order of the High Court by holding that statement of the witnesses under Section 161 of the Code of Criminal Procedure being wholly inadmissible in evidence could not at all be taken into consideration while dealing with an application under Section 482 of the Code of Criminal Procedure and in that context it was observed "exercise of power under Section 319 of the Code is left to the court trying the offence based on the evidence that comes before it and that there is no rationale in fettering that power and the discretion either by calling it extraordinary or by stating that it will be exercised only in exceptional-circumstances 10. But here, in the instant case, as I have noted above the informant after being examined as P.W. 1 did not file any application in terms of Section 319 of the Code of Criminal Procedure, rather the said application was filed after examination of as many as 16 witnesses when the court had put in considerable time for years together and the court after taking into consideration this aspect of the matter and also the circumstance that the version of the informant does not get corroboration from the evidence of other witnesses did hold, perhaps keeping in view the decision of the Hon' ble Court, that there does not appear, prima facie, case against the accused sought to be summoned and, therefore, keeping in view the ratio laid down by the Hon' ble Supreme Court in the cases referred to above including the case of Michael Machado vs. Central Bureau of Investigation (supra) as also case d Mohd. Safi vs. Mohd. Rafiq and An other (supra), I do not find any illegality in the impugned order. Hence, the order dated 5.2.2008 passed by Additional Sessions Judge, FTC-III, Palamau in S.T. No. 106 of 2006 refusing to summon the accused persons under Section 319 of the Code of Criminal Procedure to face trial needs not to be interfered with. Accordingly, this application stands dismissed.