Patna High Court - Orders
Lekha Rai vs The State Of Bihar & Ors. on 23 August, 2012
Author: Shivaji Pandey
Bench: Shivaji Pandey
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.8799 of 2011
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1. Lekha Rai S/O Late Amiri Rai Resident Of Village- Susta Dakhinwari
(North) Tok, P.S.- Gaighat, District- Muzaffarpur
.... .... Petitioner/s
Versus
1. The State Of Bihar
2. Bisheshwar Rai S/O Prabhu Rai Resident Of Village- Susta Dakhinwari
(North) Tok, P.S.- Gaighat, District- Muzaffarpur
3. Aseshwar Rai S/O Prabhu Rai Resident Of Village- Susta Dakhinwari
(North) Tok, P.S.- Gaighat, District- Muzaffarpur
4. Chandeshwar Rai S/O Dayali Rai Resident Of Village- Susta Dakhinwari
(North) Tok, P.S.- Gaighat, District- Muzaffarpur
5. Shesh Narayan Rai S/O Ishri @ Ishwari Rai Resident Of Village- Susta
Dakhinwari (North) Tok, P.S.- Gaighat, District- Muzaffarpur
.... .... Opposite Party/s
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Appearance :
For the Petitioner/s : Mr. Md. Anis Akhtar, Adv.
For the O.P.No.2 to 5 : Mr. Arun Kumar Sinha, Adv.
For the State : Manoj Kumar No.1, APP.
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CORAM: HONOURABLE MR. JUSTICE SHIVAJI PANDEY
ORAL ORDER
4 23-08-2012In this case, petitioner is challenging the order dated 10th February 2011 passed in Sessions Trial No. 326 of 1997 arising out of Gaighat P.S.Case no. 5 of 1996 whereby and whereunder the court below has rejected the application dated 22nd November 2010 filed u/s 319 of Code of Criminal Procedure (in short, ‗Code') making a prayer for summoning O.P.Nos. 2 to 5.
From the FIR it appears that the informant's father had gone to purchase fertilizer from the adjacent village and while he was returning back, the informant met his father near Susta 2 Patna High Court Cr.Misc. No.8799 of 2011 (4) dt.23-08-2012 2 / 11 Bazar at 5:00 P.M. when both were returning, they saw 15 persons near the Darwaza of Deo Narayan Rai. When they further proceeded, heard the noise of Pakro-Pakro. Then the informant saw that all the accused persons are beating his father with Chura, Lathi, Danda, Int, Patthar etc. and when the co-villager and sister of the informant came to rescue his father, they were also beaten by the accused. In consequence of this assault, father of the informant had died and the dead body was brought by the accused on Khatia and they kept it on the Darwaza of the informant and thereafter fled away.
Thereafter the present case was registered as Gaight P.S.Case No. 5 of 1996 u/s 147, 148, 149, 341, 323, 324, 325, 337, 302 and 201 IPC and the investigation was taken up. During investigation, large number of persons were examined and charge- sheet was submitted against seven accused u/s 147, 148, 149, 341, 323, 324, 325, 337, 302 and 201 IPC and against rest of the accused, investigation was kept pending and thereafter Police submitted supplementary charge-sheet against four persons under the aforesaid Sections but the O.P.Nos. 2 to 5 were not sent up for trial.
Charges were framed against those sent up accused 3 Patna High Court Cr.Misc. No.8799 of 2011 (4) dt.23-08-2012 3 / 11 for the offences u/s 147, 148, 149, 341, 323, 324, 325, 337, 302 and 201 IPC. After framing of charge, trial proceeded and altogether eight witnesses have been examined. It appears from the record that the informant had filed an application u/s 319 of the Code against O.P.Nos. 2 to 5 and at that time, seven witnesses were examined on behalf of prosecution. In the application, it has been stated that sufficient incriminating materials have come against them, during deposition of witnesses and materials sufficient for calling them to stand trial. It appears from the record that the court below passed the impugned order and rejected the prayer.
Counsel for the petitioner submits that the court below has fallen in error in considering evidences collected by Police during investigation as he was required to confine his consideration to the depositions which were recorded during trial. It was further submitted that P.Ws. 1, 2, 3 &6 have deposed sufficiently which may likely lead to conviction of O.P. Nos. 2 to 5.
Counsel for the O.P has submitted that the court below has not committed any wrong in refusing to summon O.P. Nos. 2 to 5 to stand trial but he has agreed on one point that the 4 Patna High Court Cr.Misc. No.8799 of 2011 (4) dt.23-08-2012 4 / 11 court below while passing the order should not have traveled to examine the statements recorded by Police, while exercising the power u/s 319 of the Code, the court was required to confine its consideration to the statements recorded during the trial and not the statement collected during investigation. He has stated that the occurrence had taken place on 18th January 1996, 1st charge-sheet was filed on 20th July 1996 where seven persons were sent up for trial and thereafter supplementary charge-sheet was filed on 25th October 1996 where four persons were sent for trial. The case was committed to the court of Sessions in the year 1997, charges were framed on 22nd July 2005. P.W.1 was examined in 2009 who is full brother of victim, P.W.2 is the daughter in-law, P.W.5 is the daughter of victim and P.W.6 (informant) is the son of the deceased. It is submitted that they are highly interested witnesses and their statements cannot be a ground for calling the P.Ws. 2 to 5 to stand trial. He has further submitted that the case was lodged in the year 1996 and at this stage, after lapse of such long time, it is not desirable to call upon them to face trial because the Hon'ble Supreme Court opined that the stage of trial and time consumed are important factors for consideration, while deciding the case u/s 319 of the Code.
5 Patna High Court Cr.Misc. No.8799 of 2011 (4) dt.23-08-2012
5 / 11 Having consider the rival contention of the parties, it is desirable to consider tenor and spirit of the provisions of 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 injury 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) An 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---6 Patna High Court Cr.Misc. No.8799 of 2011 (4) dt.23-08-2012
6 / 11
(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.‖ On analysis of provisions the court it is clear, while exercising power under Section 319 of the Code, the court would have to confine his enquiry with regard to material which came during enquiry or trial and the court would refuse to consider the statement recorded by Police during investigation, if it appears from the evidence that the person not arrayed as an accused but in all likelihood be convicted, the person so summoned would be tried together with the accused persons already facing trial.
It is a legislative mandate that the Court would examine the evidences which have come during the enquiry or trial, not the evidence or statement recorded by the Police during investigation and, as such, the court has committed an error of law in taking into consideration the statement of witnesses which 7 Patna High Court Cr.Misc. No.8799 of 2011 (4) dt.23-08-2012 7 / 11 were recorded during the investigation, rather the court was required to confine its consideration to the evidene recorded during trial. The exercise that has been done by the court below in taking consideration of the statements recorded during investigation cannot be accepted but that will not be end of the matter, rather this Court would consider the case on merit and would examine the statement of witnesses examined during trial. The Hon'ble Supreme Court in the case reported in (2000)3 SCC 262 (Michel Machado v. CBI) has taken the view that while exercising power u/s 319 of the Code, the court was required to see that the evidence collected during trial or in the inquiry, some other person, who has not been arraigned as an accused in that case, has committed an offence for which that person could be tried together with the accused already arraigned. It is not enough that the court would entertain some doubt from the evidence, about the involvement of another person in the offence, the court must have reasonable satisfaction from the evidence already collected in regard to two aspects. First is that there are sufficient materials on the record to appear that other person has committed an offence. Second is that for that offence other person would be tried along with the already arraigned accused. The 8 Patna High Court Cr.Misc. No.8799 of 2011 (4) dt.23-08-2012 8 / 11 discretionary power so conferred should be exercised sparingly to achieve criminal justice.
It has further held that it is not that the court should turn against another person whenever, it comes across evidence connecting that other person also with the offence.
While deciding the case, the court has taken note of the judgment reported in (1983)1 SCC 1 (Municipal Corpn. of Delhi v. Ram Kishan Rohtagi) where it has been held:
―But we hasten to add that this is really an extraordinary power which is conferred on the court and should be used very sparingly and only if compelling reasons exist for taking cognizance against the other person against whom action has not been taken.‖ In further paragraph, the Court has said unless the court is hopeful that there is a reasonable prospect of the case as against the newly brought accused ending in being convicted of the offence concerned, then only the court can call upon them to stand trial.
In another judgment reported in (2007)3 PLJR (SC) 55 (Mohd. Shafi v. Mohd. Rafiq) the Hon'ble Supreme Court held 9 Patna High Court Cr.Misc. No.8799 of 2011 (4) dt.23-08-2012
9 / 11 that the power under Section 319 of the Code can be exercised when the court is satisfied that there exist s possibility that the accused so sum moned is in all likelihood would be convicted .
It is apt to quote para-13 of the said judgment which is as follows:
―Para-13 From the decisions of this Court, as noticed above, it is evident that before a court exercises its discretion 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.‖ Now it is clear that the court has to exercise the power u/s 319 of the Code, if it finds that there are sufficient material and there is likelihood of person calling upon to stand trial would be convicted only then the court can exercise power under Section 319 of the Code.
In this backdrop, this Court is required to see the materials that has come during the trial by the P.Ws. 2, 5 and 6. 10 Patna High Court Cr.Misc. No.8799 of 2011 (4) dt.23-08-2012
10 / 11 Ram Narayan Rai (P.W.1) has taken the name of O.P.Nos. 2 to 5 of this petition and has narrated the events that took place.
P.W.2 (Sushila Devi) has taken the name of O.P.Nos. 2, 4 and 3 and the relevant Paragraphs will be 6, 9 and
10. Similarly P.W.5 (Kala Devi) has also named the accused persons and the informant P.W.6 (Lekha Rai) in Para-1 and 6 has also named all the accused persons. This shows that he has narrated the whole incident in which his father had died.
On examination of all these evidences, this Court finds that the court below has committed an error in not considering the case in right perspective and has applied the wrong test while considering the application filed u/s 319 Cr.P.C. and has wrongly considered the statements which were recorded by the Police during investigation.
Accordingly, the order impugned is set aside and the court below is directed to pass order afresh in accordance with law. The court below would examine the evidence that came during trial and would consider as to whether materials are sufficient for coming to the conclusion that there is reasonable prospect of their conviction. The whole exercise is to be 11 Patna High Court Cr.Misc. No.8799 of 2011 (4) dt.23-08-2012 11 / 11 completed within two months from the date of receipt/production of copy of this order.
Accordingly, this petition is allowed.
Jay/- (Shivaji Pandey, J)