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2009 DIGILAW 1005 (JHR)

Nemtulla v. State of Jharkhand

2009-07-21

PRADEEP KUMAR

body2009
JUDGMENT: Pradeep Kumar, J. - This revision is directed against the order dated 23.4.2008, by which order the learned Additional Sessions Judge-cum-Fast Track Court-II, Chatra after examination of witnesses found prima facie case proceed against the accused-petitioners, namely, Nemtulla and Rani Praveen and accordingly issued summons against them under Section 319 of the Code of Criminal Procedure for facing the trial alongwith other accused persons. 2. It is submitted by the learned counsel for the petitioners that the impugned order is bad in law, as the learned Additional Sessions Judge has not given a finding as to what offence has been committed by these two petitioners. It is further submitted that it is settled principle of law as reported in the various judgment of Supreme Court including one reported in A.I.R. 2000 (1) SC 1127 in the case of Michael Michado vs. CBI that before summon against an accused under Section 319 Cr.P.C., the court must be satisfied that some offence has been committed by the accused persons. 3. On the other hand, learned counsel for the State as well as for the complainant has submitted that the evidence of witnesses examined during trial, namely, P.W. 4, Md. Safiullah, P.W. 5, Md. Isteyaque, P.W. 6, Md. Abulash and P.W.9, Md. Aftab Allam have stated about the part played by these two petitioners and the offences committed by them. The learned Additional Sessions Judge also after considering the evidences has passed the impugned order and as such the revision application is only fit to be dismissed. 4. After hearing both the parties and going through the record, I find that the prosecution case was started on the basis of a Fardbeyan given by Saleha Khatoon wherein she alleged that on 19.1.2002 when she was sitting at readymade shop of her son. Md. Istehayak then accused-petitioner no. 1, Nematulla son of Md. Habib Mian came to the shop and asked her not to proceed with a proceeding under Section 107 Cr.P.C. against him otherwise she will be killed. Thereafter, Md. Habib Mian and Sahnawaz Mian and Rani Parveen, petitioner no. 2 came there and started abusing her which action was objected by the informant and her son. Then Habib Mian brought out a Chura and gave a Chura blow on the right side of her chest causing bleeding injury. Thereafter Md. Nematulla i.e. petitioner no. 2 took out Rs. Habib Mian and Sahnawaz Mian and Rani Parveen, petitioner no. 2 came there and started abusing her which action was objected by the informant and her son. Then Habib Mian brought out a Chura and gave a Chura blow on the right side of her chest causing bleeding injury. Thereafter Md. Nematulla i.e. petitioner no. 2 took out Rs. 1,250/- from the cash box of the shop and Rani Praveen, petitioner no. 2 snatched her nose ring and Sahnawaz assaulted with fists and blows. 5. On the basis of the said F.I.R. police registered a case under Sections 448/341/323/324/307/354/379/504/34 of the Indian Penal Code. Although the witnesses examined under Section 164 Cr.P.C. during investigation named these two petitioners in various paragraphs. The police did not submit charge-sheet against the petitioners, hence no cognizance was taken against them and the trial court after framing of charge proceeded against other accused persons under Sections 448/341/323/324/307/354/379/504/34. After examination of 10 witnesses the prosecution again filed a petition for summoning against these two petitioners under Section 319 Cr.P.C. 6. After hearing the prosecution and going through the record, the learned trial court has very clearly stated that in the F.I.R. itself the informant had alleged that on the date of occurrence the accused. Md. Nematulla came to her shop and asked her not to proceed with the case under Section 107 Cr.P.C. Thereafter the other accused persons, including petitioner no. 2 came and started assaulting the informant. It is further alleged that the petitioner no. 1, Nemtulla took out Rs. 1,250/- from the cash box of the shop and the petitioner no. 1, Rani Praveen snatched nose ring from the nose of the informant. The impugned order also shows that the witnesses, namely, P.W. 4, Md. Safiullah, P.W. 5, Md. Isteyaque, P.W. 6, Md. Abulash and P'.W. 7, Md. Sieha Khatoon and P.W. 9, Md. Aftab Allam have stated the said fact during their evidence. 7. I have gone through the evidences of the witnesses, I find that they have fully supported the aforesaid fact. In that view of the matter, in my opinion, the learned trial court rightly issued summons against the petitioners as per his power under Section 319 Cr.P.C. 8. The ruling relied upon by the learned counsel for the petitioners does not apply in this case. I find no merit in the revision application and the same is accordingly dismissed.