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2019 DIGILAW 405 (CAL)

Subhasish Ghosh v. State of West Bengal

2019-03-27

SHIVAKANT PRASAD

body2019
JUDGMENT : Shivakant Prasad, J. 1. In this revisional application the petitioner has assailed the order dated August 3, 2017 passed by the learned Additional Sessions Judge, 2nd Court, Sealdah in Sessions Trial No. 2(2) of 2010 [Sessions Case No. 9(1) of 2010] thereby arraigning the petitioner herein as an accused in the instant case with the aid of Section 319 of the Code of Criminal Procedure, 1973 and directing issuance of a warrant of arrest against the petitioner. 2. The brief fact as emerges from the revisional application is that the petitioner is the brother of the de facto complainant Manidipa Dutta and maternal uncle of Susmita Biswas nee Dutta (since deceased) who was married to Rakesh Biswas in the year 2005, and a son, Surish Biswas was born to them. The matrimonial home of the said Susmita Biswas nee Dutta is adjacent to her parental home, and she would regularly visit her parental home at about 5/6 p.m. with her son, who at the time of the unfortunate incident was only one and a half years old. She would leave her son with her mother, the said Manidipa Dutta, at such time, and after finishing the household work at her matrimonial home, would return to her parental home at about 7/8 p.m. After feeding her son at her parental home, she used to return to her matrimonial home with her son at about 10/11 p.m. The parental home of the said Susmita Biswas nee Dutta is a two storeyed building and her uncle, Pijush Kanti Dutta, along with his wife and son namely, Krishnendu Dutta and daughter in-law used to reside in the ground floor of the said building. Pertinently, the said Krishnendu Dutta had taken to bad company. He took loans and creditors often came to his house, foul mouthing him. As a result, the relation between the family of the father of the said Susmita, namely, Gurudas Dutta (since deceased) and the family of Pijush Kanti Dutta (since deceased) were strained. Subsequently, the said Pijush Kanti Dutta handed over vacant possession of the ground floor of the said premises in lieu of monetary consideration and on August 28, 2009 at about 7:30/8:00 p.m. the said Susmita had arrived at her parental home along with her son. Subsequently, the said Pijush Kanti Dutta handed over vacant possession of the ground floor of the said premises in lieu of monetary consideration and on August 28, 2009 at about 7:30/8:00 p.m. the said Susmita had arrived at her parental home along with her son. The house of the petitioner at 33/1A, Barrackpore Trunk Road, Kolkata was under repair and as such the petitioner was at the residence of her sister, Manidipa Dutta, where, on that fateful evening at about 8:00 p.m. the petitioner was discussing on the ground floor certain business matters with two of his friends. At about 9:45 p.m. the petitioner went out with the said two persons with whom he was having a business discussion to see them off to Dumdum railway station. Prior to leaving the said residence, the petitioner went upstairs to his sister and niece, and asked them to close the gate after him. 3. Thereafter, the said Manidipa Dutta closed the entrance gate on the first floor, but did not close the main entrance in the ground floor as there were no incident of theft. At about 10:30 p.m. the said Manidipa Dutta heard footsteps in the ground floor and thereupon asked her daughter to see who had come. Then, three persons aged between 20/30 came to their first floor residence and asked in a raised voice for the address of the said Krishnendu Dutta, stating that the latter had taken money from them. The said Susmita Biswas nee Dutta along with Manidipa Dutta, said that they were unaware of the address of the said Krishnendu Dutta who did not reside with them. Thereafter, the said Susmita asked the said three persons to leave the residence so that she could bolt the main entrance, when the three persons started descending the staircase, followed by her. After about a half-minute, the said Manidipa Dutta heard a screaming sound of her daughter from the main entrance on the ground floor and on rushing there, she found her daughter lying there with bleeding injuries. The said Manidipa Dutta witnessed the said three persons fleeing through the lane and saw something fall from the hand of one of the said three persons. The said Manidipa Dutta witnessed the said three persons fleeing through the lane and saw something fall from the hand of one of the said three persons. She raised hue and cry and at such point of time, the father in-law and mother in-law of the said Susmita and others followed by the petitioner arrived at the place and took her to R.G. Kar Hospital, where she was declared brought dead. 4. Said Manidipa Dutta narrated as aforesaid before the police authorities who recorded her statement. She read her statement so recorded and duly put her signature thereto. The said signed statement of Manidipa Dutta was treated as a First Information Report and thereon, Sinthi Police Station Case No. 63 dated August 29, 2009 was registered for investigation by the Officer-in-Charge of Sinthi Police Station under Sections 302/34 IPC. 5. After completion of investigation, Investigating Officer submitted the report in final form vide Charge-sheet No. 35/2009 dated November 23, 2009 against Bablu Ghosh @ Bapi, Pradip Orang @ Bania, and Tapas Das, under Sections 394/397/302/34 IPC. When Bablu Ghosh @ Bapi and Pradip Orang @ Bani were arrested in connection with the instant case, the said Tapas Das has been absconding. Upon receipt of such charge-sheet, the learned Chief Judicial Magistrate, Sealdah was pleased to take cognizance of the said offences and after compliance of the statutory formality, committed the case to the Court of Sessions, Sealdah which was registered as Sessions Case No. 9(1) of 2010. 6. On appearance of the said Bablu Ghosh @ Bapi and Pradip Orang @ Bania before the learned Trial Court, charges for offences punishable under Sections 394/411/302/34 IPC were framed against Bablu Ghosh @ Bapi, while charges for offences punishable under Sections 394/302/34 IPC were framed against Pradip Orang @ Bania and Sessions Trial No. 2(2) of 2010 was started. 7. It is submitted that Manidipa Dutta could not advert at the time of making her statement in respect of the jewelries worn by the said Susmita Biswas nee Dutta viz. one gold neck chain fitted with a diamond locket and a gold bangle valued at Rs. 43,000/- which were missing on the person of the deceased after the incident. 7. It is submitted that Manidipa Dutta could not advert at the time of making her statement in respect of the jewelries worn by the said Susmita Biswas nee Dutta viz. one gold neck chain fitted with a diamond locket and a gold bangle valued at Rs. 43,000/- which were missing on the person of the deceased after the incident. In the circumstances, the said Manidipa Dutta wrote to the Officer-in-Charge of Sinthi Police Station alluding to the aforesaid fact, and thereupon, acting on such information, the police authorities added Section 394 IPC to the array of the offences in the instant case. 8. To substantiate the charges framed against the accused persons, prosecution examined as many as 20 witnesses and the petitioner was examined as prosecution witness no. 3. Prosecution also relied upon certain documents which was marked exhibited during trial. After the closure of the prosecution evidence, the learned trial Judge fixed the date on 3rd August, 2017 for examination of the accused persons under Section 313 of Cr.P.C. on which day the order impugned was passed whereby the learned trial Judge on perusal of the materials on record was of the opinion that the main culprit who appointed some persons for the commission of murder was left out and further observed that the petitioner who came out from the house of the de facto complainant to go to Dumdum for reaching the two unknown persons well acquainted with the business affairs was unable to state the actual address of the two unknown persons with whom he had conversation as per his evidence in cross examination. With the said observation, the learned trial Judge with the aid of Section 319 of the Code of Criminal Procedure, directed to issue warrant of arrest against the petitioner, fixing the date on 28th August, 2019 for execution of warrant of arrest and for his production. 9. Mr. Sandipan Ganguly assisted by Mr. With the said observation, the learned trial Judge with the aid of Section 319 of the Code of Criminal Procedure, directed to issue warrant of arrest against the petitioner, fixing the date on 28th August, 2019 for execution of warrant of arrest and for his production. 9. Mr. Sandipan Ganguly assisted by Mr. Dipanjan Dutta, learned counsel for the petitioner submit that the learned Court erred in exercise of such a power under Section 319 of the Code of Criminal Procedure, 1973 without applying his judicious discretion because there was no legal evidence on record to order for trial of the petitioner together with the accused persons facing trial, though the learned Court can apply such discretion in the event, it appears to him from the evidence that any person not being the accused for which such person could be tried together with the accused has committed crime. Thus, it is argued that the learned Judge having no evidence on record being disclosed as against the petitioner has committed an error while exercising its discretion by invoking the provision of Section 319 of the Code of Criminal Procedure against the petitioner. 10. To fortify such argument, learned counsel refers to the decisions in the case of Ram Singh & Ors. vs. Ram Niwas reported in (2009) 14 SCC 25 ; Sarabjit Singh & Anr. vs. State of Punjab & Anr. reported in (2009) 16 SCC 46 and the latest decision in the case of Sunil Kumar Gupta & Ors. vs. State of U.P. & Ors. reported in to argue that the learned Judge has unnecessarily without any satisfactory evidence on record issued the warrant of arrest against the petitioner under Section 319 of the Code of Criminal Procedure and invited my attention to the specific wordings of the provision of Section 319 of the Code of Criminal Procedure which reads thus- "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. - (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 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. Thus, it follows from the specific provision of Section 319 of the Code of Criminal Procedure that the said provision is applicable and will be maintainable only during pendency of the inquiry but also in the trial only when it appears from the evidence that any person not being an accused has committed an offence for which he could be tried together with the accused, then only the learned court can proceed. 12. Mr. Ganguly invites my attention to the observation made in paragraphs 13, 14, 15 and 20 of the reported decision in Ram Singh & Anr. (supra) which are reproduced hereunder for profitable consideration:- "13. The provision of Section 319 of the Code confers an extraordinary power upon a court to summon a person who, at the relevant time, was not being tried as an accused, subject, of course, to fulfillment of the condition that it appears to the court that he had committed an offence. A finding to that effect must be premised on the evidence that had been brought on record. Indisputably, the court must satisfy itself about the existence of an extraordinary situation enabling it to exercise an extraordinary jurisdiction. A finding to that effect must be premised on the evidence that had been brought on record. Indisputably, the court must satisfy itself about the existence of an extraordinary situation enabling it to exercise an extraordinary jurisdiction. It is true that the court is not denuded of its power to exercise the said jurisdiction only because a person named as an accused in the FIR was not charge-sheeted as a result whereof no cognizance has been taken against him. What is necessary for the said purpose is that the person concerned was not being tried as an accused before the Court at that stage. 14. This Court in the case of Kailash v. State of Rajasthan [ 2008(3) SCALE 338 ], has held that a glance of the provision would suggest that 'during the trial it has to appear from the evidence that a person not being an accused has committed any offence for which such person could be tried together with the accused who are also being tried.' This Court has laid emphasis on the words, 'it appears from the evidence', 'any person', and has committed any offence.' 15. It was further held that the power under Section 319 has to be essentially exercised only on the basis of the evidence brought on record of the case. The discretionary jurisdiction could, therefore, be exercised only after the legal evidence comes on record and from that evidence it appears that the concerned person has committed an offence." 13. Thus, in the above cited decision the Hon'ble Apex Court held that the High Court, committed a serious error in proceeding on the premise that mere existence of a prima facie case would be sufficient to exercise the court's jurisdiction under Section 319 of the Code. 14. Reliance is also placed in the case of Sarabjit Singh & Anr. vs. State of Punjab & Anr. (supra) to the observation made in paragraphs 18, 19, 21 and 23 to submit that the order invoking the provision of Section 319 of the Code of Criminal Procedure should not be made on the scanty evidence. It has been observed thus- "18. vs. State of Punjab & Anr. (supra) to the observation made in paragraphs 18, 19, 21 and 23 to submit that the order invoking the provision of Section 319 of the Code of Criminal Procedure should not be made on the scanty evidence. It has been observed thus- "18. There is no gainsaying that the power under Section 319 of the Code is an extraordinary power which in terms of the decision of this Court in MCD is required to be exercised sparingly and if compelling reasons exit for taking cognizance against whom action has not been taken. The provision of Section 319 of the Code, on a plain reading, provides that such an extraordinary case has been made out must appear to the court. Has the criterion laid down by this Court in MCD been satisfied is the question? 19. Indisputably, before an additional accused can be summoned for standing trial, the nature of the evidence should be such which would make out grounds for exercise of extraordinary power. The material brought before the court must also be such which would satisfy the court that it is one of those cases where its jurisdiction should be exercised sparingly. 21. An order under Section 319 of the Code, therefore, should not be passed only because the first informant or one of the witnesses seeks to implicate other persons(s). 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. For the aforementioned purpose, the courts are required to apply stringent testes; one of the tests being whether evidence on record is such which would reasonably lead to conviction of the person sought to be summoned. 23. 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 these 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. 15. The answer to these 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. 15. Yet, learned counsel for the petitioner refers to latest decision in the case of Sunil Kumar Gupta & Ors. (Supra) to the observation made in the paragraphs 9 and 10 which are reproduced hereunder for useful consideration- "9. Section 319(1) of the Code of Criminal Procedure empowers the Court to proceed against any person not shown as an accused if it appears from the evidence that such person has committed any offence for which such person could be tried together along with the accused. It is fairly well settled that before the Court exercises its jurisdiction in terms of Section 319 Code of Criminal Procedure, it must arrive at satisfaction that the evidence adduced by the prosecution, if unrebutted, would lead to conviction of the persons sought to be added as the accused in the case. In Hardeep Singh, the Constitution Bench held as under:- '105. Power under Section 319 of the Code of Criminal Procedure is a discretionary and an extraordinary power. It is to be exercised sparingly and only in those cases where the circumstances of the case so warrant. It is not to be exercised because the Magistrate or the Sessions Judge is of the opinion that some other person may also be guilty of committing that offence. Only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised and not in a casual and cavalier manner. 106. Thus, we hold that though only a prima facie case is to be established from the evidence led before the court, not necessarily tested on the anvil of cross-examination, it requires much stronger evidence than mere probability of this complicity. The test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction. The test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction. In the absence of such satisfaction, the court should refrain from exercising power under Section 319 of the Code of Criminal Procedure. In Section 319 of the Code of Criminal Procedure the purpose of providing if 'it appears from the evidence that any person not being the accused has committed any offence' is clear from the words 'for which such person could be tried together with the accused'. The words used are not "for which such person could be tried together with the accused. The words used are not "for which such person could be convicted.' There is, therefore, no scope for the court acting under section 319 of the Code of Criminal Procedure to form any opinion as to the guilt of the accused." 10. Observing that for exercising jurisdiction and its discretion in terms of Section 319 of the Code of Criminal Procedure the courts are required to apply stringent tests, in Sarabjit Singh vs. State of Punjab (2009) 16 SCC 46 it was held as under- 21. An order under Section 319 of the Code, therefore, should not be passed only because the first informant or one of the witnesses seeks to implicate other persons(s). 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. For the aforementioned purpose, the courts are required to apply stringent tests; one of the tests being whether evidence on record is such which would reasonably lead to conviction of the person sought to be summoned. 22. ......Whereas the test of prima facie case may be sufficient for taking cognizance of an offence at the stage of framing of charge, the court must be satisfied that there exists a strong suspicion. While framing charge in terms of Section 227 of the Code, the court must consider the entire materials on record to form an opinion that the evidence if unrebutted would lead to a judgment of conviction. 23. While framing charge in terms of Section 227 of the Code, the court must consider the entire materials on record to form an opinion that the evidence if unrebutted would lead to a judgment of conviction. 23. 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 these 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 (sic sparing) exercise of jurisdiction, would not be satisfied." 16. In respectful consideration of Hardip Singh vs. State of Punjab & Ors. reported in (2014) 13 SCC 92 as has been relied on, I am of the opinion that the decision is magna carta in so far as the application of Section 319 of the Code of Criminal Procedure is concerned. It would be apt to take note of the facts that in the Constitution Bench decision above cited the reference was made to the Hon'ble Supreme Court initially to decide as to when the power under Sub-section (1) of Section 319 of the Code of Criminal Procedure of addition of accused can be exercised by Court? Whether application under Section 319 of the Code of Criminal Procedure is not maintainable unless the cross-examination of the witness is complete? and as to what is the test and what are the guidelines of exercising power under Sub-Section (1) of Section 319 of the Code? Whether such power can be exercised only if the court is satisfied that the accused in all likelihood would be convicted? 17. In the said Constitution Bench decision three Judges Bench of the Hon'ble Court concurred with the findings in Dharam Pal & Ors. vs. State of Haryana & Anr. Whether such power can be exercised only if the court is satisfied that the accused in all likelihood would be convicted? 17. In the said Constitution Bench decision three Judges Bench of the Hon'ble Court concurred with the findings in Dharam Pal & Ors. vs. State of Haryana & Anr. reported in AIR 2013 SC 3018 holding that Sessions Court with the aid of Section 193 of the Code of Criminal Procedure can proceed to array another person and summon him for being tried even if the provision of Section 319 of Code of Criminal Procedure could not be pressed in service at the stage of committal of the case to the court of Sessions and at the stage when cognizance under Section 193 of the Code of Criminal Procedure is required to be taken by the learned Sessions Judge on the basis of the Case Diary and Charge Sheet. 18. The constitution bench in the said reference answered the following questions- (i) What is the stage at which power under Section 319 Cr.P.C. can be exercised? (ii) Whether the word "evidence" used in Section 319(1) Cr.P.C. could only mean evidence tested by cross-examination or the court can exercise the power under the said provision even on the basis of the statement made in the examination-in-chief of the witness concerned? (iii) Whether the word "evidence" used in Section 319(1) Cr.P.C. has been used in a comprehensive sense and includes the evidence collected during investigation or the word "evidence" is limited to the evidence recorded during trial? (iv) What is the nature of the satisfaction required to invoke the power under Section 319 Cr.P.C. to arraign an accused? Whether the power under Section 319(1) Cr.P.C. can be exercised only if the court is satisfied that the accused summoned will in all likelihood be convicted? (v) Does the power under Section 319 Cr.P.C. extend to persons not named in the FIR or named in the FIR but not charged or who have been discharged? 19. The Hon'ble Apex Court observed in paragraphs 25, 39 and 49 as under while answering the above noted questions- "25. The stage of inquiry commences, insofar as the court is concerned, with the filing of the charge-sheet and the consideration of the material collected by the prosecution, that is mentioned in the charge-sheet for the purpose of trying the accused. The Hon'ble Apex Court observed in paragraphs 25, 39 and 49 as under while answering the above noted questions- "25. The stage of inquiry commences, insofar as the court is concerned, with the filing of the charge-sheet and the consideration of the material collected by the prosecution, that is mentioned in the charge-sheet for the purpose of trying the accused. This has to be understood in terms of Section 2(g)Cr.P.C., which defines an inquiry as follows: "2(g) "inquiry" means every inquiry, other than a trial, conducted under this Code by a Magistrate or Court. 39. To say that powers under Section 319 Cr.P.C. can be exercised only during trial would be reducing the impact of the word 'inquiry' by the court. It is a settled principle of law that an interpretation which leads to the conclusion that a word used by the legislature is redundant, should be avoided as the presumption is that the legislature has deliberately and consciously used the words for carrying out the purpose of the Act. The legal maxim "A Verbis Legis Non Est Recedendum" which means, "from the words of law, there must be no departure" has to be kept in mind. 49. It is thus aptly clear that until and unless the case reaches the stage of inquiry or trial by the court, the power under Section 319 Cr.P.C. cannot be exercised. In fact, this proposition does not seem to have been disturbed by the Constitution Bench in Dharam Pal (CB). The dispute therein was resolved visualizing a situation wherein the court was concerned with procedural delay and was of the opinion that the Sessions Court should not necessarily wait till the stage of Section 319 Cr.P.C. is reached to direct a person, not facing trial, to appear and face trial as an accused. We are in full agreement with the interpretation given by the Constitution Bench that Section 193 Cr.P.C. confers power of original jurisdiction upon the Sessions Court to add an accused once the case has been committed to it." 20. Thus it was held that the Court can exercise the power under Section 319 of the Code of Criminal Procedure only after trial proceeds and commence with the recording of the evidence and in the unexceptional circumstances. Thus it was held that the Court can exercise the power under Section 319 of the Code of Criminal Procedure only after trial proceeds and commence with the recording of the evidence and in the unexceptional circumstances. Therefore, there is no difficulty in invoking provision of Section 319 of the Code of Criminal Procedure at the stage of trial even in a complaint case when the evidence of complainant as well as the witness is being recorded. There is no such dispute as raised by any of the parties before this Court either from the side of the petitioner or the State or even the de facto complainant/opposite party no. 2. The questions which were referred to the Constitution Bench decision were decided by the Hon'ble Supreme Court that the evidence has to be understood in its wider sense both at the stage of trial and as the word used in Section 319 of the Code of Criminal Procedure and the court should understand to have the power to proceed against any person after summoning him on the basis of any such material have been brought forth before it and the duty and obligation of the court becomes more onerous to invoke such powers cautiously on such material after evidence has been laid during trial and the questions were answered as observed in paragraph 110 of the cited decisions which reads thus- "Question Nos. 1 & III Q.I What is the stage at which power under Section 319 Cr.P.C. can be exercised? AND Q.III Whether the word "evidence" used in Section 319(1) Cr.P.C. has been used in a comprehensive sense and includes the evidence collected during investigation or the word "evidence" is limited to the evidence recorded during trial? A. In Dharam Pal's case, the Constitution Bench has already held that after committal, cognizance of an offence can be taken against a person not named as an accused but against whom materials are available from the papers filed by the police after completion of investigation. Such cognizance can be taken under Section 193 Cr.P.C. and the Sessions Judge need not wait till 'evidence' under Section 319 Cr.P.C. becomes available for summoning an additional accused. Section 319 Cr.P.C., significantly, uses two expressions that have to be taken note of i.e. (1) Inquiry (2) Trial. Such cognizance can be taken under Section 193 Cr.P.C. and the Sessions Judge need not wait till 'evidence' under Section 319 Cr.P.C. becomes available for summoning an additional accused. Section 319 Cr.P.C., significantly, uses two expressions that have to be taken note of i.e. (1) Inquiry (2) Trial. As a trial commences after framing of charge, an inquiry can only be understood to be a pre-trial inquiry. Inquiries under Sections 200, 201, 202 Cr.P.C.; and under Section 398 Cr.P.C. are species of the inquiry contemplated by Section 319 Cr.P.C. Materials coming before the Court in course of such enquiries can be used for corroboration of the evidence recorded in the court after the trial commences, for the exercise of power under Section 319 Cr.P.C., and also to add an accused whose name has been shown in Column 2 of the charge-sheet. In view of the above position the word 'evidence' in Section 319 Cr.P.C. has to be broadly understood and not literally i.e. as evidence brought during a trial. Question No. II Whether the word "evidence" used in Section 319(1) Cr.P.C. could only mean evidence tested by cross-examination or the court can exercise the power under the said provision even on the basis of the statement made in the examination-in-chief of the witness concerned? A. Considering the fact that under Section 319 Cr.P.C. a person against whom material is disclosed is only summoned to face the trial and in such an event under Section 319(4) Cr.P.C. the proceeding against such person is to commence from the stage of taking of cognizance, the Court need not wait for the evidence against the accused proposed to be summoned to be tested by cross-examination. Question No. IV What is the nature of the satisfaction required to invoke the power under Section 319 Cr.P.C. to arraign an accused? Whether the power under Section 319 (1) Cr.P.C. can be exercised only if the court is satisfied that the accused summoned will in all likelihood be convicted? A. Though under Section 319(4)(b) Cr.P.C. the accused subsequently impleaded is to be treated as if he had been an accused when the Court initially took cognizance of the offence, the degree of satisfaction that will be required for summoning a person under Section 319 Cr.P.C. would be the same as for framing a charge. A. Though under Section 319(4)(b) Cr.P.C. the accused subsequently impleaded is to be treated as if he had been an accused when the Court initially took cognizance of the offence, the degree of satisfaction that will be required for summoning a person under Section 319 Cr.P.C. would be the same as for framing a charge. The difference in the degree of satisfaction for summoning the original accused and a subsequent accused is on account of the fact that the trial may have already commenced against the original accused and it is in the course of such trial that materials are disclosed against the newly summoned accused. Fresh summoning of an accused will result in delay of the trial - therefore the degree of satisfaction for summoning the accused (original and subsequent) has to be different. Question No. V Does the power under Section 319 Cr.P.C. extend to persons not named in the FIR or named in the FIR but not charge sheeted or who have been discharged? A. A person not named in the FIR or a person though named in the FIR but has not been charge sheeted or a person who has been discharged can be summoned under Section 319 Cr.P.C. provided from the evidence it appears that such person can be tried along with the accused already facing trial. However, in so far as an accused who has been discharged is concerned the requirement of? Sections 300 and 398 Cr.P.C. has to be complied with before he can be summoned afresh." 21. In respectful consideration of the decision cited above it would be apt to yet refer to a decision in the case of Labhuji Amratji Thakor & Ors. Vs. State of Gujarat & Ors. in Criminal Appeal No. 1349 of 2018 arising out of SLP (Crl.) No. 6392 of 2018 wherein Hardeep Singh (Supra) decision was relied on by the Hon'ble Supreme Court, that is to say, Power under Section 319 of the Code of Criminal Procedure is a discretionary and an extraordinary power. It is to be exercised sparingly and only in those cases where the circumstances of the case so warrant. It is not to be exercised because the Magistrate or the Sessions Judge is of the opinion that some other person may also be guilty of committing that offence. It is to be exercised sparingly and only in those cases where the circumstances of the case so warrant. It is not to be exercised because the Magistrate or the Sessions Judge is of the opinion that some other person may also be guilty of committing that offence. Only where strong and cogent evidence occurs against a person from the evidence led before the Court that such power should be exercised and not in a casual and cavalier manner. 22. Thus, it has been held that though only a prima facie case is to be established from the evidence led before the court, not necessarily tested on the anvil of cross-examination, it requires much stronger evidence than mere probability of his complicity. The test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction. In the absence of such satisfaction, the court should refrain from exercising power under Section 319 of the Code of Criminal Procedure. In Section 319 of the Code of Criminal Procedure the purpose of providing if "it appears from the evidence that any person not being the accused has committed any offence" is clear from the words "for which such person could be tried together with the accused". The words used are not "for which such person could be convicted". There is, therefore, no scope for the court acting under Section 319 of the Code of Criminal Procedure to form any opinion as to the guilt of the accused. 23. It has also been held that the Constitution Bench decision of the Hon'ble Supreme Court has given a caution that power under Section 319 of the Code of Criminal Procedure is a discretionary and extraordinary power, which should be exercised sparingly and only in those cases where the circumstances of the case so warrant. The crucial test, which has been laid down as noted above is the test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction. 24. The crucial test, which has been laid down as noted above is the test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction. 24. Learned counsel for the petitioner adverts my attention to oral testimony of the petitioner Subhasish Ghosh @ Subha, PW 3 to argue that there is no cogent evidence against the petitioner before the Trial Court to exercise extraordinary power under Section 319 Cr.P.C. so as to rope the petitioner for trial along with the accused persons. It would reflect from evidence that PW 3 has deposed in clear crystal term that the incident took place on 28.8.09 in the evening. He was discussing certain business matters with two of his friends at the ground floor of his sister's house. It was about 8.00 P.M. His own house was under repair work for which he had been to his sister's house for holding the discussion. After entering into his sister's house on the ground floor, one has to go through inner door to reach a room, where they were holding discussion. According to him, Susmita with her child was on the 1st floor. His sister's husband was ill. His sister Manidipa was also in the house. At about 9.45 P.M. he went out with his two friends and told Susmita to shut the door and she closed the grill door at the mouth of the staircase on the 1st floor. After seeing his friends off at Dum Dum Station he was coming back to Didi's house at about 10.30 P.M. when he heard a hue and cry of many people, shouting Chor Chor and he found three young persons of middle built running away from the sides towards the main road taking a right turn. As he was entering the said passage from the main road all paused for a moment and then ran away. He saw a knife like thing in the hand of one of them who was in the middle. PW 3 further deposed that those three persons were unknown to him and he knew almost all the people of that locality. Street lights were glowing in that area, the mouth of the passage was fully visible. He saw a knife like thing in the hand of one of them who was in the middle. PW 3 further deposed that those three persons were unknown to him and he knew almost all the people of that locality. Street lights were glowing in that area, the mouth of the passage was fully visible. He found his sister just outside the main gate of the house standing with the child and Susmita's body was lying on the passage/lane in a pool of blood and he also saw in-laws of Susmita present there. PW 3 and one Jagdish took the injured Sustima immediately to RG Kar Medical College and Hospital, Emergency Department. There the on-duty doctor examined Susmita and declared her 'brought dead'. Then PW 3 broke down into tears. PW 3 enquired from his sister as to what had happened and she had replied that three young persons came in search of Krishnendu Dutta as Krishnendu owed some money to them. Said Krishnendu used to reside at the ground floor of the house. But he did not live there yet three young persons kept on insisting for Krishnendu's address. Then Susmita asked them to leave the house. While going down the steps they snatched one golden necklace with diamond from her and also assaulted her with knife. During trial two accused persons facing trial were identified by him (PW 3) who had seen them at the place of occurrence and also identified them at the T.I. Parade in Jail. PW 3 specifically identified the accused in red T-shirt as the man who was holding knife in his hand and his name was identified in Court as Bablu Ghosh. Therefore, identity of the accused persons was not in question. It would appear from the evidence of PW 3 that he has fully corroborated the ocular testimony of his sister Manidipa in proof of the prosecution case. It would not be out of the context that inquest over dead body of the deceased Susmita was conducted in presence of PW 3 and the inquest report has duly proved as Exhibit- 7 and seizure list in respect of the wearing apparel i.e. violet colour saree with blood stain seized and prepared in his presence. 25. It would not be out of the context that inquest over dead body of the deceased Susmita was conducted in presence of PW 3 and the inquest report has duly proved as Exhibit- 7 and seizure list in respect of the wearing apparel i.e. violet colour saree with blood stain seized and prepared in his presence. 25. It would appear from the order impugned passed by the learned Trial Judge that he has mainly opined on the scrutiny of evidence taken during cross examination of PW 3 that he was only person who came out of the house of the de facto complainant to go to Dumdum Railway Station for reaching the two unknown persons who were well acquainted with the business affairs of said Subhasish Ghosh @ Subho Ghosh. 26. It is reflected from cross-examination of PW 3 Subhasish Ghosh @ Subho Ghosh that two persons with whom he had discussion concerning his business affairs were his friends, therefore, there was no reason for the learned Judge to hold that those two persons were unknown to PW 3 inasmuch as PW 3 had identified the accused persons fleeing away from the place of occurrence. So, PW 3 is quite a natural witness to identify those persons in T.I. Parade for the brutal and ghoulish incident. It may so happen that PW 3 was not in the knowledge of the actual address of those two persons whom he had been to reach them to Dum Dum railway station. The evidence of PW 1 Manidipa Dutta in unequivocal term corroborates the prosecution case identifying the accused persons facing trial who had committed raid in her house by criminal trespass on that fateful night in search of Krishnendu Dutta, the son of her brother-in-law Pijush Kanti Dutta who after having sold the ground floor of the house to the husband of PW 1 had left the premises and were staying somewhere else but she was not in the know of the address of said Krishnendu for whose whereabouts the said miscreants/accused persons entered into her house in search of him. The miscreants were asked to leave the house by her daughter Susmita and they descended the staircase, she was also going down to close the door when the accused persons snatched her diamond ornaments and stabbed her with a knife causing fatal injury to Susmita to which she succumbed to death on the way to R.G. Kar Hospital being taken by PW 3 and PW 2 Jagdish Chandra Biswas who had also identified the accused persons as the persons fleeing away from the place of occurrence. PW 2 also identified the accused Bablu Ghosh in Presidency Jail and accused Pradip Orang in the Central Jail at the time of T.I. Parade on the next day of the incident. 27. Taking into consideration the totality of the evidence on record placed before this Court and giving an anxious consideration to the facts and circumstances of the case, nowhere from the four corners of the case it can be held that entire scenario of the case has been centralized in the way that the main culprit behind the curtain has been left out by the investigating agency or the Investigation Officer has failed to excavate the real culprit involved in the alleged incident or the person having direct nexus with the commission of the crime was left out for no reason whatsoever by giving a clean chit to the petitioner Subhasish Ghosh @ Subho Ghosh. Observation by the Trial Court that the accused persons were hired by the petitioner appears to be wishful thinking on the part of the learned Trial Court because the accused persons facing trial never disclosed anything before the I.O. or at the time of their T.I. Parade with the fact that they were engaged to commit the crime by the petitioner. There is no iota of evidence on record to find even prima facie that the petitioner had any inimical relationship with his own cousin sister (Bhagni). There is no evidence of ire even expressed by PW 1 Manidipa Dutta who happened to be the elder sister of the petitioner in whose house the petitioner was putting up for two months prior to the incident. 28. There is no evidence of ire even expressed by PW 1 Manidipa Dutta who happened to be the elder sister of the petitioner in whose house the petitioner was putting up for two months prior to the incident. 28. No doubt the Constitution of India mandate under Article 20 and Article 21 provide for a protective embargo for smooth administration of justice making adequate provision to ensure fair and efficacious trial so that the accused does not get prejudice after the law has been put into motion to try him for the offence at the same time also gives equal direction to victim and the society at large to ensure that guilty does not get away from the clutches of the law and for that the court has been empowered to ensure that the criminal administration of justice works properly and the law is properly applied. 29. I find on perusal of the order impugned and the evidence of the prosecution witnesses who have adduced before the trial court including the ocular testimony of Manidipa, mother of the deceased and sister of the petitioner PW 3 who have never uttered a single word against the petitioner and there is no whisper even by the accused persons that it was the petitioner who employed them to commit the crime, so much so that PW 1 de facto complainant and PW 3 the petitioner herein have identified the accused persons having entered into the house in search of whereabouts of Krishnendu who happens to be the cousin brother of the deceased. In clear crystal term PW 1, the mother of the deceased identified the accused persons at the time of trial and so also during investigation in Test Identification parade proceeding as the persons who had entered into her house in search of Krishnendu to which they had replied that he does not stay in that house. It emerged from the evidence that the said Krishnendu used to take loan and had taken loan from the assailants and his whereabouts was not known to them and he had avoided payment of loan. 30. Thus, PW 1 and PW 3 the petitioner had identified the accused persons during T.I. parade and so also at the time of trial and the evidence taken in totality will go to show that the accused persons have committed the crime. 30. Thus, PW 1 and PW 3 the petitioner had identified the accused persons during T.I. parade and so also at the time of trial and the evidence taken in totality will go to show that the accused persons have committed the crime. I do not find even in the cross-examination of PW 3 or any of the prosecution witnesses an iota of evidence to indicate a finger on the petitioner PW 3 who is one of the prime witnesses to the prosecution case proving it to the hilt. 31. I am of the considered opinion that the learned Trial Judge for no reasons whatsoever and without any basis of incriminating materials on record and without proper appreciation of the totality of the evidence has issued the coercive process of warrant of arrest against the prosecution witness that is the petitioner PW 3 based on surmises and on mere suspicion in most cavalier manner. I, therefore, hold that the order impugned cannot be allowed to be sustained and is accordingly set aside. 32. Thus, the revisional application being CRR No. 2862 of 2017 is allowed with direction to the learned Session Judge to conclude trial by examination of the accused persons under Section 313 Cr.P.C. and to take coercive measure for processing action against the third accused Tapan Das who was absconding since the time of investigation and to conclude the trial and decide the case on its merit in accordance with law. 33. Urgent photostat certified copies of this order, if applied for, be made available to the parties upon compliance of the requisite formalities.