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2012 DIGILAW 445 (JHR)

Awadh Kishore Singh v. State of Jharkhand

2012-03-26

JAYA ROY

body2012
JUDGMENT Jaya Roy, J. Heard the learned counsel for the petitioners and the earned counsel for the O.P. no.2 and the learned counsel for the State. 2. The petitioner has filed this case against the order dated 16.02.2010 passed by the learned Addl. Sessions Judge, F.T.C.III, Chatra in S.T. No. 91 of 2009 whereby the application filed by the Prosecution under Section 319 Cr.P.C. for summoning the accused Awadh Kishore Singh, Ashudeo Singh @ Asdeo Singh and Arjun Singh ( the petitioners) whose names were dropped by the I.O. from the charge sheet. 3. Mr. Mahesh Tiwary, the learned counsel appearing for the petitioner has submitted that the police instituted this case under Sections 147/148/324/326/307/504 I.P.C. against the petitioners and other accused persons but after investigation police submitted charge sheet only against five accused persons and the petitioners, who were named as accused in the First Information Report, not sent up for trial due to lack of evidence. The I.O. Of this case has not submitted charge sheet against the petitioners. It is further submitted that during investigation, several witnesses have been examined by the police but none of them stated anything against the petitioners. Thereafter, the learned Chief Judicial Magistrate, Chatrta after perusal of the F,.I.R. As well as Case Dairy, took cognizance by the order dated 18.02.08 against only five accused persons namely Deepak Kumar Singh, Kulwant Singh, Balwant Singh, Anil Singh, Sunny Singh under Sections 147/148/324/325/307/504 I.P.C. and the case was committed to the Court of Sessions being S.T. No.91 of 2009 to the learned Additional Sessions Judge, F.T.C. III, Chatra only against the aforesaid five persons. 4. Mr. Tiwary has contended that thereafter, the prosecution has filed an application under Section 319 Cr.P.C. for summoning the petitioners in this case and the court below without applying his Judicial mind and without taking consideration that it could not have summoned the petitioners without recording any evidence in the case allowed the said application filed by the prosecution. 5. Mr. Tiwary has cited a decision of the Hon'ble Apex Court reported in AIR 2000 Supreme Court-3725 Kishori Singh & others -Vrs- State of Bihar and another where it is held:- “10. 5. Mr. Tiwary has cited a decision of the Hon'ble Apex Court reported in AIR 2000 Supreme Court-3725 Kishori Singh & others -Vrs- State of Bihar and another where it is held:- “10. So far as those persons against whom chargesheet has not been filed., they can be arrayed as 'accused persons' in exercise of powers under Section 319 Cr.P.C. when some evidence or materials are brought on record in course of trial...”. 6. Mr. Tiwary has contended that the aforesaid decision of the Hon'ble Apex court is based on the earlier decision of the Hon'ble three Judges of the Apex Court reported in (1998) 7 Supreme Court Cases 149 Ranjit Singh -Vrs-State of Punjab in which it is held:- “20. Thus, once the Sessions Court takes cognizance of the offence pursuant to the committal order, the only other stage when the court is empowered to add any other person to the array of the accused is after reaching evidence collection when powers under Section 319 of the Code can be invoked. We are unable to find any other power for the Sessions Court to permit addition of new person or persons to the array of the accused. Of course it is not necessary for the court to wait until the entire evidence is collected for exercising the said powers”. 7. Mr. A.K. Chaturvedi the learned counsel appearing for the opposite party no. 2 has submitted that in Section 319 Cr.P.C. the word is-“when in the course of any inquiry into, or trial of an offence.....” therefore, the Sessions Court has every right to summon the witnesses after considering the materials which has come in the inquiry of the case. In this regard he has referred a case of the Hon'ble Apex Court reported in 1993 Supreme Court Cases (Cri) 470 Kishun Singh and others- Vrs. State of Bihar. 8. Considering the aforesaid decision of the Hon'ble three Judges of the Apex Court as stated above, in my opinion the judgment cited by the learned counsel Mr. Chaturvedi is not applicable in this case. As the present case is squarely covered by the decision of three Hon'ble Judges of the Apex Court ( stated above), I set aside the impugned order dated 16.02.2010 passed by the learned Addl. Sessions Judge, F.T.C.III, Chatra in S.T. No. 91 of 2009. Chaturvedi is not applicable in this case. As the present case is squarely covered by the decision of three Hon'ble Judges of the Apex Court ( stated above), I set aside the impugned order dated 16.02.2010 passed by the learned Addl. Sessions Judge, F.T.C.III, Chatra in S.T. No. 91 of 2009. However it is made clear that if the evidence comes against the present petitioners or against any of them during the trial after examining prosecution witness or witnesses, the Sessions Court has every power to add such person/persons in array of accused under Section 319 of the Cr.P.C. and summoning them to face trial. With the aforesaid directions, the revision application is allowed. Office is directed to send the entire Lower Court Records to the Court concerned immediately.