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2015 DIGILAW 530 (JHR)

Hare Ram Mahto v. State of Jharkhand

2015-04-27

RAVI NATH VERMA

body2015
ORDER : This Cr. Revision application under section 397 and 401 of the Code of Criminal Procedure (hereafter referred to as ‘the Code’) has been filed by the petitioners against the order dated 07.08.2009 passed by Additional Sessions Judge, FTC, II, Seraikella in Sessions Trial No. 114 of 2007, whereby and whereunder the petition filed on behalf of the prosecution under section 319 of the Code to issue summons to the petitioners has been allowed. 2. The prosecution case, as it appears from the fardbeyan of the informant Bhola Nath Mahto, in short, is that at about 7.00 A.M. on 08.05.2007 five persons including the petitioners surrounded his father and the petitioners assaulted his father by fists and slaps and one Basudeo Mahto inflicted injury on the head of his father by an axe. Thereafter, another accused Prajapati Mahato assaulted him and instigated others also to assault the father of the informant. 3. After investigation, as it appears from the record that the police submitted charge sheet against Basudeo Mahato and Prajapati Mahato only and the investigation with respect to three petitioners was kept pending and final form was submitted against these petitioners. It further appears that after framing of charge, under section 302/ 34 of the Indian Penal Code against Basudeo Mahato and Prajapati Mahato, the prosecution produced 17 witnesses. After completion of the prosecution evidence, a petition was filed by prosecution under section 319 of the Code to issue summons to the three petitioners relying upon the evidence of PW1 and PW4 (informant). The court below after hearing both the sides, by impugned order dated 07.08.2009 allowed the petition and directed to issue summons against the three accused persons i.e. the present petitioners, for facing the trial. Being aggrieved by the said order, three petitioners moved this court as indicated above. 4. The moot question which has come up before this Court relates to the interpretation and / or application of the provisions of section 319 of the Code. 5. Learned counsel appearing for the petitioners submitted that though PW1 and PW4 were examined on 17.03.2008 and 29.08.2008 respectively but no petition under section 319 of the Code was filed and when all the prosecution witnesses i.e. 17 in numbers, were examined, the petition under section 319 was filed at the fag end of the trial. 5. Learned counsel appearing for the petitioners submitted that though PW1 and PW4 were examined on 17.03.2008 and 29.08.2008 respectively but no petition under section 319 of the Code was filed and when all the prosecution witnesses i.e. 17 in numbers, were examined, the petition under section 319 was filed at the fag end of the trial. It was also submitted that only evidence which has come in the deposition of PWs 1 and 4 is that, three petitioners were also surrounding the deceased but there is no allegation of assault against these petitioners and the main allegation is against Basudeo Mahato who inflicted injury with the help of an axe on the head of the deceased. Even during cross-examination in para-13, the PW1 has nowhere testified any overt act against the petitioners. Similarly, PW4 who is the informant has only stated in para-1 that he found his father being surrounded by the petitioners and Basudeo Mahato and they were assaulting his father with fists and slaps. In para-11, the witness has testified that while he was going on a bicycle, he found his father surrounded by petitioners and no other witness has whispered against the petitioners. 6. Contrary to the aforesaid submission, learned counsel appearing for the opposite party no. 2 and learned Addl. PP submitted that there is ample evidence against these three petitioners and there is a clear allegation of assault by the above three petitioners and also from the evidence in paragraph 13 of PW1 and paragraph 1 of PW4, showing the common intention of the three petitioners. 7. It is well settled that if the prosecution at any stage produce evidence which satisfies the Court that those who have not been arrayed as accused or if made accused but after investigation final form has been submitted, have also committed the offence, the trial court can take cognizance against them and try them along with the other accused but it is also well settled that the power under section 319 of the Code is an extraordinary power and should be used very sparingly. The Hon’ble Supreme Court in a case Lok Ram vs. Nihal Singh [ 2006 (10) SCC 192 ] has observed in paragraph 12 as follows:- “The power is discretionary and such discretion must be exercised judicially having regard to the facts and circumstances of the case. The Hon’ble Supreme Court in a case Lok Ram vs. Nihal Singh [ 2006 (10) SCC 192 ] has observed in paragraph 12 as follows:- “The power is discretionary and such discretion must be exercised judicially having regard to the facts and circumstances of the case. Undisputedly, it is an extraordinary power which is conferred on the court and should be used very sparingly and only if compelling reasons exist for taking action against a person against whom action had not been taken earlier” 8. The Hon’ble Supreme Court while discussing the case “Municipal Corporation of Delhi vs. Ram Kishan Rastogi, [ 1983 (1) SCC 1 ] and another case, Sarabjit Singh vs. State of Punjab, [2009 (3) East Cr. Case 389 (SC)] has held: “ The mere existence of a prima facie case may not serve the purpose. Different standards are required to be applied at different stages. Whereas the test of prima facie case may be sufficient for taking cognizance of an offence at the stage of framing charge, the court must be satisfied that there exists a strong suspicion. While framing of charge in terms of section 227 of the Code, the Court must consider the entire materials on record to form an opinion that evidence if unrebutted would lead to a judgment of conviction. Whether a higher standard be set up for the purpose of invoking the jurisdiction under section 319 of the Code is the question. The answer to the questions should be rendered in the affirmative. Unless a higher standard for the purpose of forming an opinion to summon a person as an additional accused is laid down, the ingredients thereof, viz. (i) an extraordinary case and (ii) a case for sparingly exercise of jurisdiction, would not be satisfied”. 9. In view of the settled principle when a final form is submitted discharging accused from allegation, if after examination of witness or witnesses during trial, on either a petition filed by prosecution or the Court suo-motu feels to summon those accused for trial under section 319 of the Code, a higher standard or opinion is required to be formed for invoking jurisdiction to summon a person as additional accused to face trial with other accused persons under section 319 of the Code. An order under the above provision should not be passed on testimony of one or two witnesses seek to implicate other persons. An order under the above provision should not be passed on testimony of one or two witnesses seek to implicate other persons. Sufficient and cogent reasons are required to be assigned by the Court so as to satisfy the ingredients of the provisions. Mere ipse dixit would not serve the purpose. Such, an evidence must be convincing one at least for the purpose of exercise of the extraordinary jurisdiction. 10. In the case at hand, after examination of PW1 and PW4 almost 13 witnesses were examined and after close of the prosecution evidence, when the case was fixed for argument, the petition for summoning the petitioners to face trial was filed and order impugned was passed without adhering to the settled principle that Courts are required to apply stringent tests; one of the test being whether evidence on record is such which would reasonably lead to conviction of the person sought to be summoned. Apparently as discussed above the evidences available on record are not such or sufficient to lead to conviction of the person summoned. They are vague and insufficient to hold a person guilty in absence of any other legal evidence. Even no overt act has been attributed or alleged against the petitioners. 11. Besides that after examination of PW-1 and PW-4, the prosecution waited for examination of almost 9-10 witnesses. When the case was fixed for argument after recording the statement of accused persons under section 313 of the Code was recorded, thereafter the petition under section 319 of the Code was filed. The summoning of petitioners at this stage amounts to denovo trial after almost eight years of occurrence. Therefore, the trial court seems to have illegally exercised the discretion. 12. In view of the above discussion, I am of the opinion that the impugned order dated 07.08.2009, passed by the Court below after an inordinate delay and at the fag end of the trial when the case was fixed for argument and that too, in absence of any convincing and cogent reason can not be sustained. Hence the impugned order is, hereby, set aside. 13. Accordingly, this revision application is allowed.