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2012 DIGILAW 637 (JHR)

Narayan Prasad Jha v. State of Jharkhand

2012-04-26

H.C.MISHRA

body2012
JUDGMENT Heard learned counsel for the petitioners and learned counsel for the State. 2. The petitioners have been made accused for the offence under Section 302/34 of the Indian Penal Code in connection with Godda (T) P.S. Case No.201 of 2009, corresponding to G.R. No.634 of 2009 and have been summoned to face the trial in S.T. No. 79/2010 by the learned Sessions Judge, Godda. 3. It appears that the petitioners are named accused in the FIR and there is allegation against the petitioners also. However, upon investigation of the case, the police had submitted charge-sheet under Section 306/34 of the IPC against the co-accused, but so far as the petitioners are concerned, the police had submitted final form. It appears that on the basis of the charge-sheet submitted by the police, the Court below took cognizance against all the accused persons including these petitioners, which was challenged by the petitioners in Cr. M.P. No.1296 of 2009. The said Cr. M.P. was allowed so far as these petitioners are concerned, by the order dated 27.7.2010 in the following terms : - “Under Such circumstances, as per the settled principle of law laid down by the Supreme Court in the case of Kishori Singh’s case (supra), the Magistrate, while taking cognizance of the offence, could have taken cognizance of the offence against such of the accused, who has been chargesheeted, but not against those who were not chargesheeted nor recommended for trial, though at a later stage, under Section 319 of the Cr.P.C, the trial court may be called upon to take an appropriate decision, whether to implead such persons as accused in the trial. In the light of the facts and circumstances and the discussions made, I find that the impugned order of the court below directing issuance of summons against petitioner Nos. 1 to 6, is contrary to the settled law and, therefore, cannot be sustained. Accordingly, the portion of the impugned order, whereby summons were issued to the petitioner Nos. 1 to 6, namely Narayan Prasad Jha @ Narayan Jha, Bamshankar Thakur @ Bholi Thakur, Sgar Jha @ Sagar Kumar Jha, Ghanshyam Thakur, Amit Kumar Jha and Ravikant Jha, is hereby set aside.” 4. Accordingly, the portion of the impugned order, whereby summons were issued to the petitioner Nos. 1 to 6, namely Narayan Prasad Jha @ Narayan Jha, Bamshankar Thakur @ Bholi Thakur, Sgar Jha @ Sagar Kumar Jha, Ghanshyam Thakur, Amit Kumar Jha and Ravikant Jha, is hereby set aside.” 4. However, it appears that armed with this order the petitioners filed application for discharge in the Court below, as in the meantime the charge had also been framed in the case and the witnesses were being examined. The prayer of the petitioners was refused by the Court below, stating that the trial against the petitioners had already commenced and directed the petitioners to swear an affidavit to inform as to whether the petitioners had informed this Court that the charge had already been framed and the witnesses were examined in the sessions trial during the pendency of the matter before the High Court. The petitioners again filed I.A. No.2061 of 2010 in the said Cr. M.P. 1296 of 2009 for clarification of the order which was again disposed of by this Court by order dated 26.8.2010 in the following terms :- “The Sessions Judge should have been therefore advised to consider the effect of the order passed by this Court and to discharge the accused persons from the trial of the case at this stage. The Sessions Judge ought to have also observed from the order passed by this Court that under the provisions of Section 319 of the Cr.P.C. the trial court would be competent to take appropriate decision, if the materials and circumstances placed before it would necessitate to implead the petitioners as accused in course of the same trial. But, before such decision is taken under Section 319 of the Cr.P.C., the Sessions Judges has no other option but to act in the light of the order passed by this Court and discharge the accused persons.” 5. It appears that thereafter, the petitioners were discharged by the Court below, but subsequently on the basis of the evidence brought on record, the petitioners have again been summoned for facing the trial along with other co-accused persons by invoking the power under Section 319 of the Cr.P.C. by -3 order dated 1.12.2010 passed in S.T. No. 79 of 2010 by the learned Sessions Judge, Godda, which has been challenged by the petitioners in the present revision application. 6. 6. Learned counsel for the petitioners has submitted that the impugned order passed by the Court below is absolutely illegal, in as much as, there was no fresh material before of the Court below for issuing summons against the petitioners for facing the trial. Learned counsel submitted that the trial was proceeding illegally against the petitioners and after the order passed by this Court in I.A. No.2061 of 2010 in Cr. M.P. No1296 of 2009, though the petitioners were discharged by the Court below, but soon thereafter upon application filed by the prosecution under Section 319 of the Cr.P.C., the Court below has passed the impugned order, which cannot be sustained in the eyes of law. 7. From the impugned order passed by the Court below, it is apparent that the learned Court below has taken into consideration the evidence brought on record during trial and from the evidence of PW 5 Gayatri Devi and PW 6 Rani Jha, the Court below found that these witnesses had taken the names of these petitioners and also found the hand of these petitioners in murder of the deceased or in alternative, to have abetted the commission of suicide. Accordingly, finding these materials on record, this Court exercised the power under Section 319 of the Cr.P.C., and summoned the petitioners for facing the trial along with other co-accused, already facing the trial. 8. The evidence adduced by the prosecution in the Court below, have also been brought on record as Annexure–7 series. From the evidence brought on record, it appears that PW–1 is Dr. Ajay Kumar Jha, who had conducted the post mortem examination on the deceased. The other witnesses except PW 3 Mohan Das, PW 5 Gayatri Devi and PW 6 Rani Jha have turned hostile and they have not supported the prosecution case. PW 3 Mohan Das has not stated any material thing against the petitioners. However from the evidence of PW 5 Gayatri Devi and PW 6 Rani Jha, it is apparent that both these witnesses have taken the names of these petitioners, stating that these petitioners had taken the deceased along with them and subsequently the petitioners Ravikant and Narayan Jha came and informed that the deceased had committed suicide. They have made other incriminating statements also against these petitioners in their depositions. 9. They have made other incriminating statements also against these petitioners in their depositions. 9. Thus, from the evidence of PW 5 Gayatri Devi and PW 6 Rani Jha, it is apparent that there are materials against the petitioners also for summoning them to face the trial along with other co-accused. In my considered view, in the facts and circumstances of the case, the Court below has rightly exercised the power under Section 319 of the Cr.P.C., summoning the petitioners to face trial along with other co-accused. 10. Accordingly I do not find any illegality and/or irregularity in the impugned order worth interference in the revision jurisdiction. There is no merit in this application and accordingly, this revision application stands dismissed in limine.