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2012 DIGILAW 530 (PAT)

Pradeep Kumar @ Pintoo Sharma v. State Of Bihar

2012-03-27

AHSANUDDIN AMANULLAH

body2012
ORDER 1. Heard learned counsel for the petitioner and learned A.P.P. for the State. 2. The present revision application is directed against the order dated 20.08.2011 passed in S. Tr. No. 44 of 2005/27 of 2010 arising out of Paras-bigha P.S. Case No. 158 of 1996 by the Additional Sessions Judge, F.T.C. –V, Jehanabad by which the petition of the prosecution under Section 319 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the ‘Code’) has been allowed. 3. Learned counsel for the petitioner submits that the said order is erroneous both on facts as well as in law. The petitioner alongwith another was accused in the said case and upon enquiry the police has submitted chargesheet only against one accused person. As no protest petition was filed, the Court concerned took cognizance only against the other co-accused whereas the petitioner was not proceeded against. Thereafter, charges were framed and trial also started. On 22.07.2011, after six witnesses had been examined on behalf of prosecution, the petition came to be filed by the prosecution under Section 319 of the Code for issuing summons against the petitioner to face trial in the present case. The Court below by the impugned order has allowed the said petition. 4. Learned counsel for the petitioner submits that the petitioner, who was the named accused in the initial F.I.R., could not have been summoned under Section 319 of the Code since the same does not deal with a person who was already an accused in a case. For this proposition he has relied upon the decision of the Hon’ble Apex Court in the case of Sohan Lal & Ors. Vs. State of Rajasthan reported in AIR 1990 SC 2185, the relevant being at paragraphs no. 14, 15, 30 and 33. Learned counsel further submits that the case having commenced long time back, that is, in the year 1996 and order passed under Section 319 only in the year 2011, that is, after more than 15 years, was not proper as has been held by a Bench of this Court in the case of Gopal Krishna Vs. State of Bihar, reported in 1987 CRI. L. J. 1487, the relevant being at paragraphs no. 9 to 12. State of Bihar, reported in 1987 CRI. L. J. 1487, the relevant being at paragraphs no. 9 to 12. Learned counsel also submits that the Court below while allowing the petition on 20.08.2011 has also relied upon the statement made by the witnesses during investigation and this according to him is impermissible in law and cannot be relied upon. For the said proposition he relied upon a decision rendered in the case of Hukamaram & Ors. Vs. State of Rajasthan reported in 1982 CRI. L. J. 2341. 5. Learned counsel for the petitioner has also drawn the attention of this Court to the initial FIR in which the only allegation is that he also entered the house. Learned A.P.P. for the State has submitted that the order passed was in view of the evidence which had come during examination of witnesses and thus the Court was not precluded to issue summons against the petitioner. 6. Upon considering the submissions made by learned counsel for the parties as well as after going through the materials on record and taking into account the decisions relied upon by learned counsel for the petitioner, this Court is of the opinion that there is substance in the contention of learned counsel for the petitioner. The Hon’ble Apex Court in the decision rendered in the case of Sohan Lal (Supra) has clearly held that the person who was initially the named accused in the case could not be dealt with either under Section 216 or Section 319 of the Code. In the present case also it is an admitted position that the petitioner was named accused in the case and has been subsequently ordered to face trial by issuing of summons under Section 319 of the Code which, according to the judgment of the Hon’ble Apex Court, is not permissible. 7. For the reasons aforesaid, the impugned order cannot be sustained and the order dated 20.08.2011 passed by the Additional Sessions Judge, F.T.C. V. Jehanabad in S. Tr. No. 44/2005/27/2010 is hereby set aside. 8. The order may be communicated to the Court below through fax upon deposition of the requisite fee on behalf of the petitioner.