Patna High Court - Orders
Balley Phalwan & Anr vs The State Of Bihar & Anr on 11 February, 2013
Author: Shivaji Pandey
Bench: Shivaji Pandey
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.6091 of 2011
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1. Balley Pahalwan S/O Ram Dhyan Rai R/O Sakeen - Sultanpur, P.S. -
Danapur, District - Patna
2. Ranjeet Kumar S/O Bally Pahalwan R/O Sakeen - Sultanpur, P.S. -
Danapur, District - Patna
.... .... Petitioner/s
Versus
1. The State Of Bihar
2. Deepak Kumar S/O Ashok Kuamr Rai Sakeen - Near Kali Sthan Gosala,
Sultanpur, P.S. - Danapur, District - Patna
.... .... Opposite Party/s
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Appearance :
For the Petitioner/s : Mr. Birju Prasad, Adv.
For the Opposite Party/s : Mr. Aditya Narayan Singh-I, APP
For the O.P.No.2 : Mr. Ghan Shyam Tiwary, Adv.
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CORAM: HONOURABLE MR. JUSTICE SHIVAJI PANDEY
ORAL ORDER
8 11 -02-2013Heard learned counsel for the petitioners, for the State and for the O.P.No.2.
2. In this case, petitioners are challenging the order dated 22nd September 2010 passed by Additional Sessions Judge- II, Danapur in S.T.No. 1484 of 2005 whereby and whereunder the court below in exercise of power conferred u/s 319 of the Code of Criminal Procedure (hereinafter, in short, referred to as the „Code‟) issued summons to the petitioners to stand the trial.
3. From the records, it appears that an FIR was lodged by the O.P.No.2 as Danapur P.S.Case No.537 of 2004 for the offences u/s 302, 307, 324/34 IPC and Section 27 of the Arms Act.
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4. From the complaint petition it appears that the allegation has been made that on 13th November 2004 in the evening, on the occasion of Govardhan Pooja, the informant was cracking crackers on roof with his friends and his wife Khushboo Sinha after taking „Prasad',in the mean time, Balley Pahalwan (Petitioner No.1) holding gun came at his roof along with Ranjeet Kumar (Petitioner No.2) son of petitioner No.1, whereas Jay Prakash, Mannu Kumar Rai, Ramesh Kumar, Dilip Kumar were sitting in a tempo at the ground level. All these persons were having gun in their hands. Balley Pahalwan, in loud voice, made wrong statement that the cracker had hit his mother and started hurling abuses When the informant forbade to use such language, Balley Pahalwan resorted to firing. The informant came down from the roof. It has been alleged that Balley Pahalwan himself started firing and other persons had also resorted to firing. All the bullets from the gun of Balley Pahalwan, Ranjeet and Jay Prakash hit the informant at different parts of his body due to which he (the informant) had fallen down. It has been alleged that Dilip Yadav and Ramesh Kumar with the country-made pistol caused the fire- arm injury to Dilip Kumar Ram in his chest. Munnu Kumar Rai and Jay Prakash caused fire-arm injury to Pinku Kumar at different parts of the body and due to which he had fallen down. When hue and cry started, all the persons fled away from there. It 3 Patna High Court Cr.Misc. No.6091 of 2011 (7) 3 / 26 has come in the FIR that Jitendra Kumar Rai and Pinku Kumar died during the course of treatment at PMCH, Patna. On 13 th January 2004 the informant was also referred to PMCH, Patna for his treatment.
5. The Police investigated the case and for the first time submitted charge-sheet against Ramesh Kumar on 27th February 2005(Annexure-2) and kept the investigation pending in connection with Balley Pahalwan (Petitioner No.1), Ranjeet Kumar (Petitioner No.2), Jay Prakash, Dilip Kumar and Mantu Kumar and thereafter on 26th May 2005, the Police submitted the 2nd charge-sheet against Jay Prakash and Dilip Kumar and found that no material was available against Balley Pahalwan and Ranjeet Kumar but kept the investigation pending against both the persons, named hereinabove but the Police submitted Final Form dated 30th January 2006 in favour of petitioners and Munna Kumar on the direction of Superintendent of Police(Town) and thereafter vide order dated 29th October 2006, the case was committed to the court of sessions for framing of charge. At the same time, the court accepted the final form on 27th August 2007, charges were framed against Ramesh Kumar, Dilip Kumar and Jay Prakash, as aforesaid. During the trial prosecution examined witnesses, namely, Sagar Kumar as PW 1, Bindeshwar Prasad as P.W.2 and Dilip Kumar as P.W.3 and after evidence, APP filed 4 Patna High Court Cr.Misc. No.6091 of 2011 (7) 4 / 26 application u/s 319 of the Code on 21st October 2009. Vide Annexure-5, wherein averment has been made that the prosecution witnesses supported the case of the informant, P.W.3. The informant in Para-4 of his evidence has specifically mentioned the name of Balley Pahalwan of resorting to firing which caused injuries on his waist and from the firing of Ranjeet Kumar, he sustained injuries on right arm. It has been alleged that Balley Pahalwan was not an order-giver but was a shooter and Rajeet Kumar having common intention and motive also fired from his gun, caused injury to the deceased and, as such, both persons who are petitioners in this case be issued notices to stand trial. The court below by the impugned order considered the evidence of witnesses and arrived at a finding that they have categorically stated in his evidence before the court that Balley Pahalwan came on the roof, raised protest against the informant and also started abusing him. On protest by the informant not to abuse, he came down and ordered other accused persons to catch the informant and later on Balley Pahalwan, Ranjeet and others who were armed with gun opened fire due to which two persons, named hereinabove, died.
6. Learned counsel for the petitioners submits that the court below has wrongly exercised the power u/s 319 of the Code on the ground though they were made accused but the 5 Patna High Court Cr.Misc. No.6091 of 2011 (7) 5 / 26 Police on investigation did not find any material against them and the Magistrate accepted the final form and, as such, there is no occasion for the court below to exercise the power u/s 319 of the Code to call upon him to stand the trial. He has further submitted that as per the FIR and the statement made during trial that bullet fired by Balley Pahalwan hit the informant but there is no evidence or material available on the record to show that the informant was injured or he was treated in the PMCH as during the trial the injury report was not brought on the record. Learned counsel further submits that as per the provisions of Section 319 of the Code all the accused should be tried together, as the trial has already been concluded in connection with other accused persons, so the question of joint trial of the petitioners with co-accused does not arise. He has further submitted that three witnesses were examined out of them two are hearsay witnesses whereas the informant who has been examined as P.W.3 is said to have received the injury but the Police during investigation did not find any injury on his person. In support of his argument, he has relied on the judgments reported in (2008)9 SCC 140 (Bholu Ram v. State of Punjab), (2009)2 SCC 696 (Lal Suraj v. State of Jharkhand), 2006(4) PLJR 201 (Bhagwant Prasad v. State of Bihar).
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6 / 26 2006(1) PLJR 502 (Mrigendra Prasad Singh v. State of Bihar) and 2005(1) PLJR SC 50 (Krishnappa v. State of Karnataka).
7. Whereas, counsel for the O.P.No.2 submitted that right from the beginning, name of Balley Pahalwan is coming, even in the FIR there is specific allegation that it was Balley Pahalwan who, resorted to firing which caused injury to the informant and later on, his son resorted to firing first which caused death of two persons. He has submitted that though it appears that the Police has submitted final form not on the basis of materials on the record but on the direction of the Superintendent of Police. He further submitted that as per Section 319 of the Code the court has ample power to call any person who is not an accused in the event of evidence being sufficient for the probable conviction of the person whose name has come during the trial.
8. Learned counsel for the State has submitted that from Para-18 of Annexure-7 judgment of Sessions Court attached to the supplementary affidavit, the court below has dealt with as to how the informant as well as the two deceased were referred for treatment in PMCH, the court below has pointed out that first they were brought to Danapur Hospital and later on they were referred to PMCH for better treatment. He further submitted that for the 7 Patna High Court Cr.Misc. No.6091 of 2011 (7) 7 / 26 laches of the investigating agency, benefit cannot be given to petitioners. It has further been submitted that materials brought during the trial are sufficient which gives an inference of reasonable probability of conviction against the persons called upon to stand trial. He has further submitted that it is not the situation the court has exercised the power u/s 319 of the Code only on the basis of some doubt but the evidences are sufficient to show, the person called was involved in the crime and there was every likelihood of conviction in the trial, as the other accused persons who had participated in the crime have already been convicted in the trial. It has been submitted that the crime was initiated by Balley Pahalwan and others were the persons who followed him. The court has not committed any error in exercising power u/s 319 of the Code.
9. In reply, counsel for the petitioners has relied on Para-14 of the judgment to show that the informant was not there in the PMCH as such, no treatment was given to him. He has further relied on Para-20 of the judgment to show no case under Section 307 IPC is made out.
10. For coming to the right conclusion it will be essential to examine the provision of section 319 of the Code to arrive at right conclusion as to whether the trial court has applied the right principle while exercising the power under Section 319 8 Patna High Court Cr.Misc. No.6091 of 2011 (7) 8 / 26 of the Code and to summon the petitioner to stand the trial. It is relevant to quote Section 319 of the Code which is as follows:
Section 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 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 the 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. On bare reading of Section 319 of the Code it appears that the court may exercise the power under section 319 of the Code where in course of enquiry or trial it appears from the evidence that any person not being an accused had committed the said offence for which such person could be tried together with the accused who is already facing criminal trial. The Hon'ble Supreme Court in the case of Michael Machado and another Vs. Central 9 Patna High Court Cr.Misc. No.6091 of 2011 (7) 9 / 26 Bureau of Investigation and another, reported in (2000) 3 SCC 362 has held that the basic requirements for invoking the aforesaid section is that it should appear to the court from the evidence collected during the trial or in the inquiry that some person who was not arraigned as an accused in that case has also committed an offence and for which that person could be tried along with other accused persons already arraigned. The court should not exercise the power in a case of some doubt but should also appear to the court about the involvement of that person in the said crime. In other words the court must have reasonable satisfaction from the evidence already collected regarding two aspects. First is that the other person has committed an offence and second is that in such offence that person could be tried along with person already arraigned as an accused. The discretionary power should be exercised only to achieve criminal justice system and the court should not turn against another person whenever it comes across evidence connecting that other accused also with the offence. The court has given guideline, the trial has proceeded and the quantum of evidence collected till then and also the amount of time which the court had spent for collecting the evidence. It has been further held that extraordinary power has been conferred on the court under section 319 of the Code should be exercised very sparingly and in compelling situation, reasons exist for taking cognizance 10 Patna High Court Cr.Misc. No.6091 of 2011 (7) 10 / 26 against the other person. This power should not be exercised only on mere suspicion but the court must be hopeful that there is a reasonable prospect of the case as against the newly added accused ending in being convicted of the offence concerned.
12. This principle has been approved in the case of Guriya (supra). In that case the Hon‟ble Supreme Court has approved the earlier judgments decided in the cases of Michael Machado (supra) and Joginder Singh Vs. State of Punjab, reported in (1979)1 SCC 345. On the principle that at any stage of the proceeding on the evidence adduced evidence which satisfied the court that the accused persons or those who have not been arrayed as an accused against whom proceeding has been quashed have also committed the offence the court can take cognizance against him and try them along with the accused persons. But the court has given rider that it is an extraordinary power which has been conferred on the court and should be used very sparingly only if compelling reasons exist for taking action against a person against whom action had not been taken. The Hon'ble Supreme Court in paragraph 10 has held as follows:
"10. On a careful reading of Section 31`9 of the Code as well as the aforesaid two decisions, it becomes clear that the trial court 11 Patna High Court Cr.Misc. No.6091 of 2011 (7) 11 / 26 has undoubted jurisdiction to add any person not being the accused before it to face the trial along with the other accused persons, if the court is satisfied at any stage of the proceeding on the evidence adduced that the persons who have not been arrayed as an accused should face the trial. It is further evident that such person, even though had initially been named in the FIR as an accused, but not charge- sheeted, can also be added to face the trial. The trial court can take such a step to add such persons as accused only on the basis of evidence adduced before it and not on the basis of materials available in the charge-sheet or the case diary, because such materials contained in the charge-sheet or the case diary in Sohan Lal V. State of Rajasthan, the position of an accused who has been discharged stands on a different footing."
13. In the case of Mohd. Shafi (supra) the Hon‟ble Supreme court has provided guidelines for summoning the person as an accused who has not been arrayed as an accused in the trial. 12 Patna High Court Cr.Misc. No.6091 of 2011 (7)
12 / 26 The court must be satisfied that the person who has been summoned to stand the trial has a satisfaction that there exists a possibility that the accused so summoned is in all likelihood "would be convicted". Such satisfaction can be arrived at inter alia upon completion of the cross-examination of the said witness. For the said purpose, the court concerned may also like to consider other evidence. In this case also the court has given a caution that the power that has been conferred under section 319 of the Code is an extraordinary power which has been conferred on the court and should be used very sparingly only if compelling reasons exist for taking action against a person against whom action had not been taken. It will be apt to quote paragraph 12 of the said judgment:
"12. From the decisions of this Court, as noticed above, it is evident that before a court exercises its discretionary jurisdiction in terms of Section 319 of the Code of Criminal Procedure, it must arrive at the satisfaction that there exists a possibility that the accused so summoned is in all likelihood would be convicted. Such satisfaction can be arrived at inter alia upon completion of the cross- examination of the said witness. For the said purpose, the court concerned may also like to consider other evidence. We, therefore, of the view that the High 13 Patna High Court Cr.Misc. No.6091 of 2011 (7) 13 / 26 Court has committed an error in passing the impugned judgment. It is accordingly set aside. The appeal is allowed."
14. In the case of Lal Suraj (supra) in paragraph 16 of the judgment the Hon‟ble Supreme Court has held that the principle of strong suspicion is the criteria for framing of charge as all the materials brought during investigation are required to be taken into consideration but the power under section 319 of the Code has to be exercised on the basis of evidence brought before the court. The court has held that from the evidence it should appear that the person who has been summoned there should a possibility of the accused of being convicted on the basis of the evidence brought on record even if the same is taken to be correct in its entirety. The court has given a rider on consideration of the provision of section 319 of the Code that the key words in this section are "it appears from the evidence" ...."any person"....."has committed any offence". The court should not exercise the power merely because some witnesses have mentioned the name of such person or that there is some material against that person. But it should be exercised only after due consideration that there are strong case against the person who have been summoned to face the trial there is likelihood of ending the trial in conviction against 14 Patna High Court Cr.Misc. No.6091 of 2011 (7) 14 / 26 the person so summoned. It will be appropriate to quote relevant portion of the said Judgment:
"9. .... A glance at these provisions 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. The key words in this section are "it appears from the evidence" ....."any person" ....."has committed any offence". It is not, therefore, that merely because some witnesses have mentioned the name of such person or that there is some material against that person, the discretion under Section 319 Cr.P.C would be used by the court. This is apart form the fact that such person against whom such discretion is used, should be a person who could be tried together with the accused against whom the trial is already going on. This Court has, time and again, declared that the discretion under Section 319 CrPC has to be exercised very sparingly and with caution and only when the concerned is satisfied that some offence has been committed by such person. This power has to be essentially exercised only on the 15 Patna High Court Cr.Misc. No.6091 of 2011 (7)
15 / 26 basis of the evidence. It could, therefore, be used only after the legal evidence comes on record and from that evidence it appears that the person concerned has committed an offence. The words "it appears" are not be read lightly, on that the court would have to be circumspect while exercising this power and would have to apply the caution which the language of the section demands."
The Curt refused to exercise the power as Hon‟ble Supreme Court found witnesses were hearsay witnesses which cannot be basis for exercise of power under Section 319 of the Code.
15. In the case of Kailash (supra) the Hon'ble Supreme Court has approved the earlier view as explained hereinabove and has held in affirmance that the power under section 319 of the Code is an extraordinary power conferred on the court to exercise very sparingly, only in compelling reason and it should be exercised in a situation where there exists a possibility that the accused so summoned is in all likelihood would be convicted, such situation can be arrived at upon completion of the cross-examination of the said witness. The court has also approved the view that a judicial exercise is called for keeping a conspectus of the case including the stage at which the trial has already 16 Patna High Court Cr.Misc. No.6091 of 2011 (7) 16 / 26 proceeded and the quantum of evidence collected till then, and also the amount of time which the court had spent for collecting such evidence. The court while examining an application under section 319 of the Code has to bear in mind that there is no compelling duty on the court to proceed against other persons. In a nutshell, the power under section 319 of the Code can be exercised keeping in mind all relevant facts and power should not be exercised mechanically on the ground that some evidence had come on record implicating the person sought to be added as an accused.
16. In the case of Brindaban Das (supra) the Hon‟ble Supreme Court has held that court can exercise the discretionary power under section 319 of the Code where there was substantive evidence against the accused persons where there would be all probability to secure conviction. The power under section 319 of the Code is a discretionary power should be exercised very sparingly and with caution. That power can be exercised either on the application made to the court or by the court suo motu. But the test is that there should be overwhelming evidence that has come during the trial which may likelihood of conviction of the person so summoned.
17. Let us examine the judgments which have 17 Patna High Court Cr.Misc. No.6091 of 2011 (7) 17 / 26 been relied on by the counsel for the petitioners making a submission that the judgments that have been relied upon support his contention that it is not a fit case where the court below ought to have issued notice to stand trial.
18. In Mrigendra Nath Prasad Singh‟s case (supra) this Court found that the lower court has exercised power under Section 319 of the Code on the basis of evidence of witnesses who were hearsay witnesses and had not claimed to be eye witnesses to the torture and cruelty but claimed knowledge from the deceased herself. On that score, this Court has held that the court below had rightly rejected the application filed by the prosecution u/s 319 of the Code. It will be relevant to quote Para-6 of the judgment which is as follows:
Para-6: Having appreciated the rival submission, I do not find any substance in the submission of Mr. Singh. It is well settled that power to summon an accused is an extraordinary power conferred on the Court and requires to be used sparingly only if compelling reason exists. To summon other accused persons, not facing trial judicial exercise is called for keeping in mind the entire conspectus of the case, including the stage at which the trial has reached. Further power under 18 Patna High Court Cr.Misc. No.6091 of 2011 (7) 18 / 26 Section 319 of the Code of Criminal Procedure cannot be exercised merely on the ground that some evidence has come on record implicating the person sought to be arraigned as an accused but the entire conspectus of the case has to be seen. Bearing in mind the aforesaid, when I proceed to examine the case in hand, I find that the observation made by the learned Judge while passing the impugned order is based on consideration of the entire conspectus of the case. The learned Judge has found that the witnesses examined are hearsay witnesses and have not claimed to be eye-witnesses of the torture and cruelty but claim knowledge from the deceased herself. It also took into consideration the fact that the deceased was living in the house of the parents and the husband of the deceased who is facing trial was living separately from opposite party nos. 3 to 10. The learned Judge has within his rights to consider the entire conspectus of the case and on doing so it came to the conclusion that the accused persons sought to be arraigned are not fit to be arraigned in exercise of the power under Section 319 of the Code of Criminal Procedure. I do not find any error in the same."
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19. In Bholu Ram‟s case (supra) the Hon‟ble Supreme Court has considered the applicability of Section 319 in connection with any other person not being an accused. In this case, allegation was made against Bholu Ram that he had withdrawn money forging the signature of Sher Singh, respondent no.2. The signature of Sher Singh was also sent to the handwriting expert but the report was not produced but during the trial evidence came against the respondent no.2. Accordingly, application under Section 319 of the Code was filed and the Magistrate found that the materials are sufficient prima facie, asked Sher Singh to stand the trial which was challenged by the State and the same was rejected. After eight months, Sher Singh filed an application for recall of the order which was rejected and the same was challenged before the Additional Sessions Judge which was allowed and the order calling him under Section 319 of the Code to stand trial was withdrawn.
20. The Hon‟ble Supreme Court has thread barely considered the power under Section 319 of the Code in Para-21 of the judgment where it has been held that primary object of Section 319 of the Code is that the whole case against all the accused should be tried and disposed of not only expeditiously but also simultaneously. Justice and convenience both require that cognizance against the newly added accused should be taken in 20 Patna High Court Cr.Misc. No.6091 of 2011 (7) 20 / 26 the same case and in the same manner as against the original accused. The power must be regarded and conceded as incidental and ancillary to the main power to take cognizance as part of normal process in the administration of criminal justice.
21. In Para-28, the Hon‟ble Supreme Court has held that it applies to all the courts including a Sessions Court and as such a Sessions Court will have the power to add any person, not being the accused before it, but against whom there appears during trial sufficient evidence indicating his involvement in the offence, as an accused and direct him to be tried along with other accused.
22. In Para-29 again the Hon‟ble Supreme Court has approved the earlier judgment quoted with approval the following:
" .. The said expression clearly covers any person who is not being tried already by the court and the very purpose of enacting such a provision like 319(1) clearly shows that even persons who have been dropped by the Police during investigation but against whom evidence showing their involvement in the offence comes before the criminal court are included in the said expression".
In Para-30 the Hon‟ble Supreme Court further held:
".....We would however, make it plain that mere fact that the proceedings have been quashed against respondents 2 to 21 Patna High Court Cr.Misc. No.6091 of 2011 (7) 21 / 26 5 will not prevent the court in exercising its discretion, if it is fully satisfied that a case for taking cognizance against them has been made out on the additional evidence led before it".
In Para-32 the Hon‟ble Supreme Court derived from other judgments and quote d in approval as follows:
23. It is further evident that such person, even though had initially been named in the FIR as an accused, but not charge- sheeted, can also be added to face the trial. The trial court can take such a step to add such persons as accused only on the basis of evidence adduced before it and not on the basis of materials available in the charge-sheet or the case diary, because such material contained in the charge-sheet or the case diary do not constitute evidence"
Further in Para-33 it has been held as under :
"Power under Section 319 of the Code can be exercised by the court suo motu or on an application by some one including the accused already before it." The court has also considered the scope of the trial together with other accused persons where the court has held:
"... But by the time he could be brought before the court, the trial against the accused was over. The question was whether such a person could be summoned and tried for the offence for which he was summoned. This Court held that the 22 Patna High Court Cr.Misc. No.6091 of 2011 (7) 22 / 26 words „should be tried together with the accused‟ were merely directory and such a person could be tried even after conclusion of the trial of the main accused."
In the same Para, at a subsequently the Court was considering the procedure for examination of witnesses under Section 319 of the Code where the Court has held :
" .. It would not be sufficient to only tender the witnesses for the cross-examination of such a person. They have to be examined afresh. Fresh examination in-chief and not only their presentation for the purpose of the cross-examination of the newly added accused is the mandate of Section 319(4). The words „could be tried together with the accused‟ in Section 319(1), appear to be only directory. „Could be‟ cannot under these circumstances be held to be „must be‟ ".
24. The provision cannot be interpreted to mean that since the trial in respect of person who was before the court was concluded with the result that the newly added person cannot be tried together with the accused who was before the court under Section 319 of the Code was passed the order would be ineffective and inoperative nullifying the opinion of the court....that the newly added person appears to have committed the offence resulting to an order for his being brought before the Magistrate".
25. In this case, the Hon‟ble Supreme Court has 23 Patna High Court Cr.Misc. No.6091 of 2011 (7) 23 / 26 affirmed the view of the Magistrate and found the order of the Magistrate to be proper in exercising the power under Section 319 of the Code calling the person to stand trial.
26. In Bhagwant Prasad‟s case (supra) on the basis of evidence, the court below allowed the application under Section 319 of the Code but this Court set aside the order holding that the court below had acted illegally to summon the person to stand the trial on the basis of material which has come in the evidence is merely suspicion and presumption. There is no dispute that the court cannot exercise the power under Section 319 of the Code either on the hearsay evidence or on suspicion and presumption.
27. In Krishnappa‟s case (supra), the Hon‟ble Supreme Court has approved the view that was taken in Michael Machado case, reported in (1979)1 SCC 345 and applying that judgment found that the allegation made against the accused was of instigation and the Hon‟ble Supreme Court set aside the order calling upon the person to face trial.
28. From the aforesaid judgments the following test emerges for summoning the person to stand the trial. The persons was not charge-sheeted by the police nor the cognizance was taken against the person concerned but during the trial evidences have come against the persons so summoned and quality and quantity of the evidences which gives an inference of probability or 24 Patna High Court Cr.Misc. No.6091 of 2011 (7) 24 / 26 likelihood of conviction, the suspicion even the strong suspicion, cannot be a ground to exercise the discretionary power of the court.
29. Now the case should be considered in the litmus test as having been provided, culled out above from the judgments of the Hon'ble Supreme Court.
Let us examine the facts of the case. From the record it appears that the informant in the FIR has specifically taken the name of the petitioners where he has specifically stated that the petitioners first abused and later on both the petitioners resorted to firing, caused injury to the informant and the other persons which led to death of two persons.
30. In this case, altogether three witnesses were examined. P.W.1 Sagar Kumar in his cross-examination has specifically stated that he along with other persons started cracking the crackers whereupon the accused persons had forbidden to crack and thereafter he picked up some discussion. He exhorted his son for resorting to firing whereupon Balley Pahalwan, petitioner no.1 fired from his gun and later on it was followed by Ranjeet Kumar, petitioner no.2 and others. This witness has stated in detail about the incident in Para-1 to 10 and he has stated in his cross-examination that at the time of 25 Patna High Court Cr.Misc. No.6091 of 2011 (7) 25 / 26 occurrence, he was at the P.O. In his cross-examination, he further stated that his brother had received bullet injury from gun of Balley Pahalwan which led to his fall on the earth. P.W.2 Bindeshwar Prasad, though he has narrated the story but from his cross-examination it appears that he was hearsay witness. P.W.3, the informant who received bullet injury, has narrated details of the incident which had taken place at the P.O. at the relevant time. In his evidence, he has stated that Balley Pahalwan started hurling abuses, when he was forbidden to use the slang language, whereupon Balley Pahalwan and Ranjeet Kumar resorted to firing which hit the informant and thereafter other persons also resorted to firing, caused injury to different persons and ultimately in that incident, two persons had lost their lives.
31. It is also important to be noted that other accused persons, namely, Ramesh Kumar @ Ramesh Kumar Gupta, Dilip Kumar @ Dilip Rai and Jay Prakash Yadav @ J.P.Rai @ JaiPrakash who had undergone sessions trial in S.T.No. 1484 of 2008 were found to have committed the crime and sentenced to undergo life imprisonment.
32. In this case also, it appears that materials are sufficient against these two persons also which completely gives an inference of probability of their conviction and the test that has been framed by the Hon‟ble Supreme Court as well as by this 26 Patna High Court Cr.Misc. No.6091 of 2011 (7) 26 / 26 Court fulfills the criteria for these petitioners to stand the trial.
33. Next point that was raised by the counsel for the petitioners that as the trial of other accused persons had already been concluded and they have been convicted, so the condition which has been laid under Section 319 of the Code, the person who is called upon to stand trial along with other accused persons is not satisfied. The judgment in Bholu Ram‟s case (supra) is the complete answer to the argument of the petitioners that the joint trial is merely directory and in the event of completion of trial of other accused persons that cannot be a ground for interfering with the order passed under Section 319 of the Code.
34. As discussed above, this Court finds that the materials are quite sufficient which prima facie makes the court empowered to exercise the power under Section 319 of the Code and the court has rightly called upon the petitioners to stand the trial. This Court does not find any merit in the present case.
Accordingly, this petition is dismissed
Jay/- (Shivaji Pandey, J)