Patna High Court - Orders
Sita Devi & Ors. vs The State Of Bihar & Anr. on 18 July, 2012
Author: Shivaji Pandey
Bench: Shivaji Pandey
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.4828 of 2011
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1. Sita Devi W/O Sambhoo Narain Mahaseth Resident Of Village- Belahi,
P.S.- Pandaul, District- Madhubani
2. Chandrama Devi W/O Hari Narain Mahaseth Resident Of Village-
Belahi, P.S.- Pandaul, District- Madhubani
3. Pramila Devi W/O Surendra Mahasheth Resident Of Village- Belahi,
P.S.- Pandaul, District- Madhubani
4. Bharatlal Chaudhary @ Bharat Chaudhary S/O Ruplal Chaudhary
Resident Of Village- Belahi, P.S.- Pandaul, District- Madhubani
5. Gafoor Nadaf S/O Late Manir Nadaf Resident Of Village- Belahi, P.S.-
Pandaul, District- Madhubani
.... .... Petitioner/s
Versus
1. The State Of Bihar & Anr. (Details Not Given)
.... .... Opposite Party/s
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Appearance :
For the Petitioner/s : Mr. Md. Sufian, Adv.
Mr. F.A.Khan, Adv.
For the Opposite Party/s : Mr. Jharkhandi Upadhyay, APP.
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CORAM: HONOURABLE MR. JUSTICE SHIVAJI PANDEY
ORAL ORDER
5 18-07-2012Heard learned counsel for the petitioners and the State.
It appears from the FIR that on 14th January 1993 at 8:00 A.M. while the informant was taking break-fast, in the mean time, accused persons came to his place having different type of weapons, entered into his house and on order given by Shambhu Mahaseth, all the accused persons assaulted him with iron rod, Lathi, fists and slaps. When he raised alarm, his mother came to his rescue and then Surendra Mahaseth assaulted with Bhala on his left cheek. Hari Narayan Mahaseth gave Bhala blow on his 2 Patna High Court Cr.Misc. No.4828 of 2011 (5) dt.18-07-2012 2/5 eyebrow. Thereafter villagers came and the accused persons fled away and while fleeing, Shayam Narayan Mahaseth snatched away gold chain from the neck of informant's mother and Shambhu Narayan Mahaseth took away 5 Sadis. It appears from the record that Police filed charge sheet against some of accused persons but Police filed Final Form in favour of petitioners. The court took cognizance vide order dated 12th December 1999 and the charge have been framed on 20th July 1995 for the offences u/s 147, 323, 448 and 324 IPC against those facing trial.
It also appears from the record that all the eight witnesses have been examined during the period 12th June 1996 to 20th September 2000. It also appears that an application u/s 319 Cr.P.C. was filed on 9th December 1999 but the same was not moved. Prosecution closed its case on 11 th January 2001 and thereafter on 8th February 2001 accused persons were examined u/s 313 Cr.P.C., thereafter petition filed u/s 319 Cr.P.C. was moved in the year 2003. Accordingly, the court below has passed the order dated 26th July 2003 summoned petitioners to stand the trial.
The present application has been filed on 3 rd February 2011. On the question being asked by this Court about delaying in filing this petition, counsel for the petitioners replied 3 Patna High Court Cr.Misc. No.4828 of 2011 (5) dt.18-07-2012 3/5 that on 26th July 2003, petitioners filed Cr. Revn. No.576 of 2004 and that too, was dismissed on 25th February 2010, only thereafter the present petition has been filed. Counsel for the petitioner submitted that there is much delay in moving the application u/s 319 Cr.P.C. and that too after examination of accused persons u/s 313 and the application filed u/s 319 Cr..C. is hit by delay and latches. Other point that has been raised the allegations are vague omnibus, not specific against any of the petitioners and those facts even if are taken on its face value, there is no likelihood of their conviction and, as such, the court below has wrongly exercised the power u/s 319 Cr.P.C., that too, against lady accused person.
Counsel for the State has submitted that so far the point of stale application is concerned, it is clear that the application was filed in the year 1999 itself but it was pressed in 2003. It was not laches on the part of O.P.No.2 rather it was the duty of the lawyer concerned to press the petition and the petitioners have taken steps in the year 1999 itself and, as such, the contention of the petitioners that the application filed u/s 319 of Cr. P.C. is stale does not survive. So far other points are concerned, counsel for the State has pointed out that in the examination in-chief, it has been specifically stated that all the persons who have been summoned were having different 4 Patna High Court Cr.Misc. No.4828 of 2011 (5) dt.18-07-2012 4/5 weapons in their hands. Accordingly, the court below has rightly exercised its jurisdiction u/s 319 Cr.P.C.
Having considered the rival contention of the parties, they are of the same family, living in the same courtyard and the alleged occurrence had taken place in the inner courtyard. The test for exercising power u/s 319 Cr.P.C. has been dealt with elaborately by the Hon'ble Supreme Court in a case reported in 2000 (3) SCC 262 Michael Machado Vs. C.B.I. and it has been held that if there is reasonable prospect of the case as against the newly arrayed person for that it requires sufficient material against them, then in that circumstance, the court can exercise the power u/s 319 Cr.P.C. and that exercise of power cannot be said to be illegal or arbitrary exercise of power.
Counsel for the petitioners has filed supplementary affidavit annexing the copy of evidence of all Prosecution witnesses. It appears that lady accused have been shown allegedly holding iron rods and Lathi but it does not appear that they actively participated in the alleged incident. Ladies are living in the same inner courtyard in surcharged situation they might have been holding out iron rod and Lathi and rushed at that place. Some times, it also happen that when an incident takes place in the inner courtyard, the ladies rush there in inquisitiveness. So mere 5 Patna High Court Cr.Misc. No.4828 of 2011 (5) dt.18-07-2012 5/5 presence of ladies at the spot which is a common place cannot be said that they were any way actively involved in the occurrence and as such materials which came during evidence does not attract provisions of section 319 Cr. P.C. to call upon them to stand trial. So far other two persons are concerned, it appear that they were there on the spot and were not mute spectator and petitioner no.5 who is not a member of the family was also present there which itself shows his intention to participate in the occurrence rather they came within the parameter fixed by the Hon'ble Supreme Court.
Accordingly, the order dated 25th October 2010 passed in Cr. Revn. No. 576 of 2004 and the order dated 26th July 2003 passed in G.R.No. 1038 of 1993 are hereby quashed in connection with petitioner Nos. (1) Sita Devi, (2) Chandrama Devi and (3) Pramila Devi are concerned. So far other two petitioners, namely Petitioner Nos.(4) Bharatlal Chaudhary @ Bharat Chaudhary and (5) Gafoor Nadaf are concerned this petition is dismissed.
Accordingly, this petition is partly allowed.
Jay/- (Shivaji Pandey, J)