Patna High Court - Orders
Anju Kuwar @ Anju Devi vs State Of Bihar & Ors on 9 April, 2012
Author: Rakesh Kumar
Bench: Rakesh Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.42302 of 2009
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Anju Kuwar @ Anju Devi, W/O late Ashok Parsad, R/O/V- Khem
Matihaniya, P.S. Bishambherpur, District Gopalganj.
.... .... Petitioner/s
Versus
1. The State of Bihar
2. Low Narayan Prasad
3. Kush Narayan Prasad
4. Brij Kishore Prasad, all the three are sons of Sanraj Prasad
5. Ashok Prasad, S/O-Indra Mohan Parsad
6. Munna Prasad
All are resident of village Khem Matihania, P.S. Bishambherpur,
District Gopalganj.
.... .... Opposite Party/s
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CORAM: HONOURABLE MR. JUSTICE RAKESH KUMAR
ORAL ORDER
4 09-04-2012Heard Shri Arun, learned counsel for the petitioner, Shri Shailendra Kumar, learned Additional Public Prosecutor as well as learned counsel, who has appeared on behalf of opposite party nos.2 to 6.
The petitioner, who was informant in Sessions Trial No.522 of 2007 arising out of Bishambherpur P.S. Case No.12 of 2007 registered for the offence under Sections 302/120B/34 of the Indian Penal Code, has approached this Court while invoking its inherent jurisdiction under Section 482 of 2 Patna High Court Cr.Misc. No.42302 of 2009 (4) dt.09-04-2012 2/9 the Code of Criminal Procedure with a prayer to quash an order dated 4.11.2009 passed by learned Sessions Judge, Gopalganj in Sessions Trial No.522 of 2007, whereby the learned Sessions Judge has been pleased to reject the petition filed on behalf of the prosecution under Section 319 of the Code of Criminal Procedure for summoning opposite party nos.2 to 6 to face trial along with accused Parsuram Prasad.
Learned counsel for the petitioner submits that in the F.I.R. itself, there was specific allegation against all the accused persons in committing crime. However, police with a view to favour the accused persons, submitted charge sheet against only one accused, who was the main accused, namely, Parsuram Prasad and other accused persons, who are opposite party nos.2 to 6 were exonerated by the Investigating Officer. The petitioner, after filing of the final report against opposite party nos.2 to 6, had also 3 Patna High Court Cr.Misc. No.42302 of 2009 (4) dt.09-04-2012 3/9 filed objection petition and subsequently, the petitioner had filed a petition under Section 319 of the Code of Criminal Procedure for summoning all the six accused persons i.e. opposite party nos.2 to 6. However, the said petition was earlier dismissed on 27.1.2009 granting liberty to file such petition at appropriate stage. Learned counsel for the petitioner submits that when the main accused i.e. Parsuram Prasad was put on trial, all the witnesses categorically disclosed the fact showing involvement of opposite party nos.2 to 6. After being fully satisfied that evidence brought during the trial was sufficient for coming to the conclusion of probability of conviction of opposite party nos.2 to 6, again a petition under Section 319 of the Code of Criminal Procedure was filed. However, the learned trial Judge, in a mechanical manner only on the basis of evidence of Investigating Officer, who was none else than the person 4 Patna High Court Cr.Misc. No.42302 of 2009 (4) dt.09-04-2012 4/9 who had earlier favoured the accused persons, the learned Sessions Judge has rejected the petition. It was submitted that the evidences, which have been brought during the trial, are sufficient to form a reasonable opinion for probability of conviction of the accused persons, but in a mechanical manner, the learned trial Judge has rejected the same. Accordingly, it has been prayed to set aside the order and direct the learned court below to summon all the accused persons i.e. opposite party nos.2 to 6.
Learned counsel appearing on behalf of opposite party nos.2 to 6 has vehemently opposed the prayer of the petitioner. It was submitted that right from the very beginning, the informant was un-necessarily raising the plea of involvement of opposite party nos.2 to 6. It was submitted that in the case, evidence of only five witnesses may not be looked into isolation but it was necessary to examine evidence in its totality. The 5 Patna High Court Cr.Misc. No.42302 of 2009 (4) dt.09-04-2012 5/9 Investigating Officer has categorically stated that there was land dispute in between the parties. Learned counsel for opposite party nos.2 to 6 further submits that evidences brought on record are not sufficient for conviction of opposite party nos.2 to 6. It was further submitted that evidences brought on record are general and omnibus and those evidences are not sufficient for forming an opinion for convicting the opposite party nos.2 to 6.
In support of argument, learned counsel has referred to a judgment of apex court reported in 2009(1) PLJR 167 (Lal Suraj @ Suraj Singh & Anr. Vs. State of Jharkhand). Specifically paragraph-15 of the aforesaid judgment has been referred. For just decision in the matter, it would be appropriate to quote the same, which is as follows :
"15. The approach of the learned Sessions Judge was wholly incorrect. The principle of 6 Patna High Court Cr.Misc. No.42302 of 2009 (4) dt.09-04-2012 6/9 strong suspicion may be a criterion at the stage of framing of charge as all the materials brought during investigation were required to be taken into consideration, but, for the purpose of summoning a person, who did not figure as accused, a different legal principle is required to be applied. A court framing a charge would have before it all the materials on record which were required to be proved by the prosecution. In a case where, however, the court exercises its jurisdiction under Section 319 of the Code, the power has to be exercised on the basis of the fresh evidence brought before the court. There lies a fine but clear 7 Patna High Court Cr.Misc. No.42302 of 2009 (4) dt.09-04-2012 7/9 distinction."
Besides hearing learned counsel for the parties, I have also perused the impugned order as well as materials available on record. It is not in dispute that power under Section 319 of the Code of Criminal Procedure may not be exercised as a matter of course, but such power is to be exercised only in a case, if there is reasonable material and probability of conviction of a person only then one can be summoned under Section 319 of the Code of Criminal Procedure for being tried with other accused persons. However, on perusal of the impugned order, it is evident that right from P.Ws.1 to 5 the witnesses, who have been examined during the trial, had supported the prosecution case and said about the involvement of opposite party nos.2 to 6. The learned Sessions Judge, instead of relying on evidence of P.Ws.1 to 5, has erroneously preferred and relied on the evidence of Investigating Officer. Of course, 8 Patna High Court Cr.Misc. No.42302 of 2009 (4) dt.09-04-2012 8/9 he has discussed some material, but in superficial manner.
The court is of the opinion that once a petition was filed under Section 319 of the Code of Criminal Procedure on the basis of evidence brought during the trial showing involvement the accused persons then in that event the learned trial court was not required to brush aside all such evidences and rely on the evidence of the Investigating Officer. Prima facie, I am of the opinion that the learned Sessions Judge has committed serious error in overlooking such evidences and as such the order impugned is set aside and the matter is remitted back to the court below with a direction to pass a fresh order on the basis of evidences brought on record during the trial discussing the evidence in detail and pass order in accordance with law preferably within a period of one month from the date of receipt/production of a copy of this order.
9 Patna High Court Cr.Misc. No.42302 of 2009 (4) dt.09-04-20129/9
With above observation and direction, the petition stands allowed.
(Rakesh Kumar, J) N.H./-