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2011 DIGILAW 1813 (PAT)

Manzer Alam v. State of Bihar

2011-08-26

SHEEMA ALI KHAN

body2011
ORDER By the Court.- This application has been rued against part of the order dated 2.1.2007, passed in G.R. Case No. 2498 of 2004 (Trial No. 1260 of 2006) by which the petitioner Manzer Alam has been summoned under Section 319 of the Code of Criminal Procedure. 2. Briefly stated the facts are that the petitioner along with other accused persons were made accused in a case under Sections 147, 148, 341, 323, 427, 48, 379 and 504 of the Indian Penal Code. Cognizance was taken under Sections 147, 341, 323 and 504 of the Indian Penal Code. 3. At the stage of taking cognizance, the Court below did not take cognizance against the petitioner as he had been exonerated during the investigation. 4. Counsel for the petitioner has argued that once the petitioner was named as an accused and was exonerated in the trial, the Court could not summon him under Section 319 of the Code of Criminal Procedure and has relied upon the provisions of Section 319 of the Code of Criminal Procedure, which reads as follows :- 319. Power to proceed against other persons appearing to be guilty of offence.- (l) Where in the course of any inquiry into or trial of an offence. it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused the Court may proceed against such person for' the offence which he appears to have committed. (2).......................... (3)........................ . (4)........................... . 5. It has been vehemently argued that since the petitioner was not an accused 'the Court may proceed against such a person'. It may be stated here that during the evidence. PWs 2, 3, 4 and 5 have stated that the petitioner and other accused persons dragged Sultana Khatoon from the house and tied her with a gamacha and thereafter assaulted the informant and others, On the basis of the aforesaid evidence other accused persons are facing trial in this case, During evidence the same allegations have been levelled against the petitioner. As such, it would appear that since six others are facing trial there would be no justification, that the Court should not call upon the petitioner to face trial and the Court below has rightly summoned the 'petitioner to face trial after considering the evidence of PWs 2. 3. 4 and 5. 6. As such, it would appear that since six others are facing trial there would be no justification, that the Court should not call upon the petitioner to face trial and the Court below has rightly summoned the 'petitioner to face trial after considering the evidence of PWs 2. 3. 4 and 5. 6. Turning to the question of law the Apex Court has held that the Court has the power to proceed against other accused persons, if evidence shows their involvement in the occurrence, although they have not been charge-sheeted during the investigation under Section 319 of the Code of Criminal Procedure. Girish Yadav v. The State of Madhya Pradesh, (1996) 8 SCC 186 . 7. This view has been supported in the later case in the case of Geeta Ram v. Bedi Ram and others. (2002) X SCC 661. 8. In view of the judgments aforesaid, I do not find any illegality in the order dated 2.1.2007 and as such this application is dismissed. 9. I may mention here that by the order aforesaid the Court below has also added charges of Section 380 and 149 of the Indian Penal Code. It goes without saying that this aspect of the matter may be determined during the trial of the case and this Court finds no reason to interfere with the order aforesaid on this count as well. Application dismissed.