Jharkhand High Court
Kartic Mahto And Anr vs The State Of Jharkhand And Anr on 28 March, 2016
Author: Rongon Mukhopadhyay
Bench: Rongon Mukhopadhyay
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No.1588 of 2015
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1. Kartic Mahto, Son of late Ritlal Mahto, Resident of Village-
Nawada, P.O. P.S. Ahilayapur, District-Giridih.
2. Govind Prasad Verma @ Govind Mahto, Son of Budhan Mahto,
Resident of village-Choura, P.O. P.S. Ahilayapur, District-Giridih.
.....Petitioners
Versus
1. The State of Jharkhand.
2. Govind Prasad Verma, Son of late Yadu Mahto, Resident of
Village-Veranmanda, P.O. P.S. Gandey, District-Giridih.
....Opposite Parties
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Coram: HON'BLE MR JUSTICE RONGON MUKHOPADHYAY
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For the Petitioners : Mr. Ram Lakhan Yadav, Advocate
For the State : Mr. Rajneesh Vardhan, APP
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04/28.03.2016In this application, the petitioners have challenged the order dated 27.05.2013, passed by the learned Sessions Judge-II, Giridih, by which the process has been issued against the petitioners under section 319 of the Code of Criminal Procedure.
2. A complaint case was instituted being Complaint Case No. 1321 of 2006, in which it was alleged that the complainant had solemnized his daughter's marriage with Girdhari Mahto in the year 2004. After a few months, demand for Rs.20,000/- as well as for purchasing a piece of land was made by the accused persons. On the attempts made by the complainant, assurances were given that his daughter will be kept with full honor and dignity but subsequently in the month of February, 2006, she was brutally assaulted and she was forced to leave her matrimonial house. A meeting was convened to settle the matter in presence of the petitioners, wherein they had once again given assurance to keep the daughter of the complainant with them. Even after such assurance, torture was being meted out and attempt was also made to burn her but she was somehow saved by her neighbour.
3. On the complaint being filed with the allegations as aforesaid, the same was referred to the police under section 156(3) of the Code of Criminal Procedure, pursuant to which, Ahilayapur P.S. Case No. 46 of 2006 was instituted. After investigation, chargesheet was submitted against Girdhari Mahto, Uma Shankar Mahto and Mrs. Indu Devi. Since there was lack of evidence to array the petitioners as 2 accused, final form was submitted. Trial proceeded against the accused persons after committal of the case and after framing of charge and thereafter vide judgment dated 27.05.2013, the accused persons were found guilty for having committed an offence under Section 498A/34 and Section 304B of the Indian Penal Code. In the said order, it was indicated that the petitioners' involvement had also surfaced and therefore under the provision of Section 319 Cr.P.C., summons were issued to the petitioners to face the trial. Subsequently, the accused persons were sentenced to undergo R.I. for seven years vide order dated 30.05.2013.
4. Heard Mr. Ram Lakhan Yadav, learned counsel for the petitioners and Mr. Rajneesh Vardhan, learned counsel for the State.
5. Learned counsel for the petitioners has submitted that the learned trial court has committed grave error of law inasmuch as no summons under section 319 could have been issued against the petitioners for facing the trial once a judgment has been delivered. It has been submitted that the learned trial court after delivering the judgment becomes functus officio and therefore in terms of Section 319 Cr.P.C., no further order for appearance of the petitioners under section 319 Cr.P.C. could have been passed. It has further been submitted that the accused persons were examined under section 313 Cr.P.C. on 27.01.2011 and if at all any evidence was there on record to suggest the involvement of the petitioners in commission of the offence, the learned trial court was within its right to summon the petitioners to face trial but the stage of issuance of summons under section 319 Cr.P.C. had already come to an end and therefore the impugned order dated 27.005.2013 is liable to be quashed. A further submission has been advanced by the learned counsel for the petitioners that the impugned order does not disclose any reason as to what prompted the learned trial court to summon the accused under Section 319 Cr.P.C. to face the trial.
6. Learned A.P.P. while opposing such prayer made by the learned counsel for the petitioners has submitted that since in course of trial some of the witnesses had named the petitioners having taken part in the offence, the learned trial court was perfectly justified in summoning them under section 319 Cr.P.C. It has been submitted that recourse is available to the learned trial court to summon a person who is not an accused but whose name has subsequently 3 figured in course of evidence during the trial and no error on the face of it can be detected in the impugned order dated 27.05.2013. In such circumstances, therefore, prayer has been made to dismiss the present application.
7. Since the validity or otherwise of the order dated 27.05.2013 is under consideration by this Court, in which the learned trial court had suo motu summoned the petitioners to face trial under section 319 Cr.P.C. and since the State is being represented by the learned APP, no notice is required to be issued against the opposite party no. 2. The only point for consideration in this application is whether the learned trial court is conferred with the jurisdiction to proceed against the petitioners even after judgment has been delivered on the same date itself. For better appreciation, Section 319 Cr.P.C. is quoted here in under:-
CRIMINAL PROCEDURE CODE, 1973 S.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 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.
8. In the case of Hardeep Singh Vs. State of Punjab and others, reported in (2014) 3 SCC 92 while considering the objects and purports of Section 319 Cr.P.C., it was held as follows:-
"40. Even the word "course" occurring in Section 319 CrPC, clearly indicates that the power can be exercised only during the period when the inquiry has been commenced and is going on or the trial which has commenced and is going on. It covers the 4 entire wide range of the process of the pre-trial and the trial stage. The word "course" therefore, allows the court to invoke this power to proceed against any person from the initial stage of inquiry up to the stage of the conclusion of the trial. The court does not become functus officio even if cognizance is taken so far as it is looking into the material qua any other person who is not an accused. The word "course" ordinarily conveys a meaning of a continuous progress from one point to the next in time and conveys the idea of a period of time: duration and not a fixed point of time. (See CIT v. East West Import & Export (P) Ltd.27)
55. Accordingly, we hold that the court can exercise the power under Section 319 CrPC only after the trial proceeds and commences with the recording of the evidence and also in exceptional circumstances as explained hereinabove.
105. Power under Section 319 CrPC 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."
9. It was, therefore, held that the powers of the trial court under section 319 Cr.P.C. can be exercised only after charges are framed as framing of charges signals the commencement of the trial and/or recording of the evidence.
10. In the case at hand, as it is clear from the impugned order, the judgement was delivered on 27.05.2013 and thereafter on the same date at a subsequent stage, the trial court has proceeded against the petitioners under section 319 Cr.P.C.
11. The powers under section 319 Cr.P.C. is to be exercised in course of any inquiry or trial. The term conclusion of trial can be traced back to the Code of Criminal Procedure, 1872 ( Act 10 of 1872) wherein trial was defined in Section 4 to mean "the proceedings taken in Court after a charge has been drawn up and includes the punishment of the offender". Subsequently, the definition of the term trial had been dropped in the Code of Criminal Procedure of 1882 and it has never resurfaced either in the Code of Criminal Procedure of 1898 or in the Code of Criminal Procedure of 1973. The conclusion of trial can be gathered from Section 353 of Cr.P.C., which envisages when a judgment has to be delivered. The key words in Section 353 for the purposes of this case would be delivering of judgment "after termination of the trial". It would thus mean that the trial concludes before a judgment is delivered.
512 Taking into consideration the aforesaid background and the construction of the meaning conclusion of trial while considering the impugned order dated 27.05.2013, it would be clear that the learned trial court committed an error of law as after delivering the judgement, he was precluded from exercising his powers under section 319 Cr.P.C. as the same can be exercised only in course of the trial.
13. In view of the aforesaid reasonings, the learned trial court committed an error of law in passing the impugned order dated 27.05.2013 so far as issuance of summons to the petitioner under section 319 Cr.P.C. and accordingly having considered the factual as well as the legal aspect of the case, the impugned order dated 27.05.2013, passed by the learned Sessions Judge--II, Giridih, is quashed and set aside so far as it relates to that part of the order, by which summons had been issued under section 319 Cr.P.C.
14. This application is allowed.
(Rongon Mukhopadhyay,J) Rakesh/