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2014 DIGILAW 818 (PAT)

Kapil Ram v. State of Bihar

2014-07-28

ASHUTOSH KUMAR

body2014
Judgment Heard Mr. Shailenra Kumar Singh, learned counsel appearing on behalf of the petitioner and Mr. Jharkhandi Upadhyay, learned Additional Public Prosecutor appearing for the State. 2. The petitioner has put up a challenge to the order dated 27.07.2006 passed in connection with G.R. No.96 of 1997, Tr. No.315 of 2006 by the learned Judicial Magistrate 1st Class, Pupri at Sitamarhi, whereby he has been summoned to face trial under Section 319 of the Code of Criminal Procedure. 3. Opposite party no.2 lodged a First Information Report alleging that 55 Demand Drafts were stolen from the Bank of Baroda. With respect to such theft, a Sanha also was recorded. The First Information Report further disclosed that one Deepak Gupta was arrested by the Gujarat Police, who was in possession of the stolen Demand Drafts and he was apprehended while getting such Demand Drafts encashed. The first information report further revealed that there were withdrawals from Delhi and Allahabad Branch of the Bank from such Demand Drafts. 4. On the basis of the aforementioned First Information Report, investigation proceeded. After the conclusion of the investigation, charge-sheet was submitted against Deepak Gupta and one Ramji Rai Mali. Cognizance was taken against both the accused persons under various sections of the Indian Penal Code, namely, 467, 468, 471, 420, 406 and 120B of the Indian Penal Code. The trial of the aforesaid two persons proceeded. 5. The petitioner was put up as prosecution witness no.1 in the case. He is said to have stated during trial that a Branch Manager has the keys of the safe custody, where such Demand Drafts are kept. The petitioner was examined as P.W.-1 on 10.02.2003. Thereafter other witnesses were also examined including the informant, who, in particular, was examined on 05.04.2004. After the examination of five prosecution witnesses, the case was closed and the matter was posted for final hearing. 6. After about two years of the closure of the evidence, an application was filed on behalf of the prosecution under Section 319 of the Code of Criminal Procedure stating that in view of the deposition of P.W.-1 (petitioner) and P.W.-4, namely, Ram Prasad Ram, it was necessary to summon the petitioner as his involvement in the case also surfaced. 7. The learned trial Court, vide its order dated 27.07.2006, allowed such petition and summoned the petitioner to face trial. 8. The aforesaid order is under challenge. 7. The learned trial Court, vide its order dated 27.07.2006, allowed such petition and summoned the petitioner to face trial. 8. The aforesaid order is under challenge. 9. The counsel for the petitioner submits that the order impugned is bad in law and facts. It is further submitted that the order is bereft of any application of mind as the prayer made on behalf of the prosecution appeared to have been blindly accepted without disclosing in the order whether the deposition of two witnesses, one being the petitioner himself, made out any case as against the petitioner with respect to the theft of the Demand Drafts in question. 10. It is further submitted on behalf of the petitioner that Section 319 of the Code of Criminal Procedure has been enacted for the purposes of trying such persons also with the other co-accused persons, if it is found necessary for the just decision in the case. In order to appreciate the submission of the counsel for the petitioner, it would be necessary to examine the provisions of Section 319 of the Code of Criminal Procedure, which is reproduced hereinbelow:- “319. Power to proceed against other persons appearing to be guilty of offence.- (1) 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) Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid. (3) Any person attending the Court, although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed. (4) Where the Court proceeds against any person under sub-section (1) then— (a) the proceedings in respect of such person shall be commenced afresh, and the witnesses re-heard; (b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced.” 11. A bare reading of the Section makes it very clear that during the course of any enquiry or trial of an offence, if it appears from the evidence that any person, who is not being tried, has also committed the offence then he ought to be tried along with other accused persons, who are being prosecuted in the case. The satisfaction of the Court with respect to the act of the persons, so summoned, also, having committed the offence is important. Such satisfaction has to be arrived at on the basis of the evidence recorded during the trial, before such an application under Section 319 of the Code of Criminal Procedure is acted upon. The word “it appears” in the Section has not to be taken lightly and while summoning a person under Section 319 of the Code of Criminal Procedure, cogent reasons have to be accorded before summoning any person to face trial along with other accused persons. 12. In the case in hand, the petitioner, who has been summoned under the provisions of Section 319 of the Code of Criminal Procedure, was put up as Prosecution Witness No.1 in this case, in support of the prosecution version. His statement before the trial Court with respect to a Branch Manager being in custody of the keys of the safe was treated as a material against him as if the custody of the Demand Drafts were with the petitioner, therefore, he too could have participated in the commission of the offence, namely, theft of the Demand Drafts. The counsel for the petitioner submits that the opinion of the prosecution as also of the Court was highly presumptuous. 13. The level of satisfaction, which is required before summoning any person to face trial under the provisions of Section 319 of the Code of Criminal Procedure has to be different than mere suspicion, which could only entail a further investigation in the matter. From a perusal of the petition preferred on behalf of the prosecution for summoning the petitioner, it appears that the prosecution was of the view that since the petitioner has stated that the safe custody remains with the Branch Manager and since the petitioner happened to be the Branch Manager, at the relevant time, therefore, he too was required to be tried along with other accused persons. This, in the opinion of this Court, is absolutely no material on which such powers under Section 319 of the Code of Criminal Procedure could have been exercised. 14. Let it be noticed that such an application for summoning the petitioner was filed by the prosecution, not immediately after the petitioner deposed before the trial Court as P.W.-1. The prosecution waited for the closure of the evidence and only after two years of the closure of the evidence that such a prayer was made. The Court below did not take care to enquire from the prosecution as to why such a prayer was being made after such a long time when all the witnesses in the case have been examined. Thus, the order impugned suffers from the vice of complete non-application of mind. The order does not depict as to how the Court came to the conclusion that the petitioner is required to be tried along with other accused persons. There is nothing in the petition, preferred by the prosecution, seeking summoning of the petitioner to face trial, as to what materials have come against him. Merely because he, or in that view of the matter P.W.-4, has stated about the documents being in custody of any Branch Manager or no case having been lodged on finding such losses from the safe custody, the petitioner could not have been summoned. 15. The power under Section 319 of the Code of Criminal Procedure is to be exercised with greater care and circumspection. Asking a person to face trial at such a belated stage tantamounts to subjecting him to the rigours of legal procedures and if no sufficient cause is shown or the order impugned is completely bereft of any such ground, such summoning cannot be sustained in the eyes of law. 16. This Court also notices the fact that the petitioner was departmentally proceeded against and it was found by the departmental authorities that there was some lapse on his part in his performance in the capacity of the Branch Manager. This may not be a mitigating ground for the petitioner, nonetheless, considering the fact that no material with respect to his having participated in the theft of the Bank Drafts, summoning him at such a belated stage is not proper. There has to be a finality with respect to any proceeding. 17. This may not be a mitigating ground for the petitioner, nonetheless, considering the fact that no material with respect to his having participated in the theft of the Bank Drafts, summoning him at such a belated stage is not proper. There has to be a finality with respect to any proceeding. 17. In view of the aforesaid discussion, order dated 27.07.2006, summoning the petitioner to face trial, passed in connection with G.R. No.96 of 1997, Tr. No.315 of 2006 by the learned Judicial Magistrate 1st Class, Pupri at Sitamarhi is set aside. 18. The application is allowed.