Patna High Court - Orders
Gitanjali Kumar @ Ginni Kumari And Anrs. vs The State Of Bihar & Anr on 27 January, 2012
Author: Aditya Kumar Trivedi
Bench: Aditya Kumar Trivedi
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.7645 of 2011
1. Gitanjali Kumari @ Ginni Kumari D/O Abdhesh Kunwar
2. Ranju Devi wife of Umesh Kunwar, both R/O village
Ranjitpur Got, P.S. and District-Sitamarhi........... Petitioner
Versus
1. The State Of Bihar
2. Kundan Kamal son of Shatyanarayan Kunwar, R/O Village-
Ranjitpur Got, P.S. and District- Sitamarhi....... Opp. Parties
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For Petitioners:- Mr. Mahendra Thakur, Adv.
For O.Ps:- Dr. Mayanand Jha, APP
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O R D E R
3/ 27thJanuary 2012 Petitioners Gitanjali Kumari @ Ginni Kumari and Ranju Devi, who have been summoned to face trial vide order dated 10.2.2011 passed by Additional Sessions Judge, FTC-VII, Sitamarhi in Sessions Trial No. 45/08 invoking Section 319 of the Cr.P.C., have challenged the order impugned as well as prayed for quashing thereof.
2. Succinctly, the case as it appears originates on the basis of written report filed by Kundan Kunal alleging inter alia that his sister, Kumud Komal @ Baby Kumari aged about 13 to 14 years has been kidnapped by Ram Parvesh Kunwar, Bigan Kunwar, Ramnath Kunwar @ Bhikhari, Gitanjanli Kumari over motorcycle which led registration of 2 Sitamarhi P.S. Case No. 115/2007 wherein after concluding investigation charge-sheet was submitted against others while Gitanjali Kumari was not sent up for trial. After cognizance, as the offence being exclusively triable by the court of sessions was committed to the Court of Session and accordingly trial commenced during course of which after framing of charge, altogether four material witnesses including the informant and victim have been examined and then on a prayer made by prosecution, by the order impugned petitioners have been summoned. Hence, necessitates for filing instant petition.
3. Contention on behalf of the petitioners is that though petitioner no.1 happens to be named in the written report but petitioner no.2 is not named. Then submitted that no case of kidnapping is made out because of the fact that the alleged victim P.W-4, during course of investigation in her statement under Section 164 of the Cr.P.C. had ruled out the same. She had herself disclosed that she on her own had gone to the house of her Mausi, Milan Devi. None had kidnapped her. Her brother had filed the instant case 3 out of confusion.
4. It has further been submitted that the investigating authority in spite of aforesaid statement and material available on the record and collected during course of investigation, over-looked the same and submitted charge-sheet which he ought not.
5. Also submitted that there happens to be exaggeration and inconsistency in the statement of the witnesses and in the aforesaid background, the evidence of the four material witnesses including victim did not inspire confidence and are not at all fit to be accepted. Therefore, application of Section 319 Cr.P.C. on the basis of aforesaid evidence is not at all permissible.
6. On the other hand, learned APP refuted the submission and submitted that Section 319 is the special proviso available in the Cr.P.C. whereunder the Court on its own should see and summon the accused who are allegedly found actively involved during commission of crime. The presence of petitioners happens to be fully detailed by consistent evidence of the PWs and after going through deposition of PW-4, the victim, the part 4 played by the petitioners during course of commission of crime has elaborately been narrated. Therefore, learned lower court was perfect in its approach while summoning petitioners. So far application of Section 319 Cr.P.C is concerned, for better appreciation the same is incorporated herewith which is as follows:-
"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, and 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 proceeding 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."
7. On bare perusal of Section itself, the power of Court to summon those whose involvement in crime, not on record till then appears to be embossed. 5 However, the ambit and scope of the power of the Court while exercising the same under Section 319 of the Cr.P.C. has come up for consideration before the Hon'ble Apex Court times without number and in a decision reported in 2011 (4) Bihar Law Judgment 72 SC, after giving a minute observation to so many decisions incorporated therein, at paragraph-16, it has been concluded as:-
16. The legal position that can be culled out from the material provisions of Section 319 of the Code and the decided cases of this Court is this:-
(i) The Court can exercise the power conferred on it under Section 319 of the Code suo motu or on an application by someone.
(ii) The power conferred under Section 319(1) applies to all courts including the Sessions Court.
(iii) The phrase "any person not being the accused" occurring in Section 319 does not exclude from its operation an accused who has been released by the police under Section 169 of the Code and has been shown in Column 2 of the charge-sheet. In other words, the said expression covers any person who is not being tried already by the court and would include person or persons who have been dropped by the police during investigation but against whom evidence showing their involvement in the offence comes before the court.
(iv) The power to proceed against any person, not being the accused before the court, must be exercised only where there appears during inquiry or trial sufficient evidence indicating his involvement in the offence as an accused and not otherwise. The word „evidence‟ in Section 319 contemplates the evidence of witnesses given in court in the inquiry or trial. The court cannot add persons as accused on the basis of 6 materials available in the chargesheet or the case diary but must be based on the evidence adduced before it. In other words, the court must be satisfied that a case for addition of persons as accused., not being the accused before it, has been made out on the additional evidence let in before it.
(v) The power conferred upon the court is although discretionary but is not to be exercised in a routine manner. In a sense, it is an extraordinary power which should be used very sparingly and only if evidence has come on record which sufficiently establishes that the other person has committed an offence. A mere doubt about involvement of the other person on the basis of the evidence let in before the court is not enough. The Court must also be satisfied that circumstances justify and warrant that other person be tried with the already arraigned accused.
(vi) The court while exercising its power under Section 319 of the Code must keep in view full conspectus of the case including the stage at which the trial has proceeded already and the quantum of evidence collected till then.
(vii) Regard must also be had by the court to the constraints imposed in Section 319(4) that proceedings in respect of newly- added persons shall be commenced afresh from the beginning of the trial.
(viii) The court must, therefore, appropriately consider the above aspects and then exercise its judicial discretion.
8. Now the evidence whatever been adduced during the course of trial by the prosecution has to be seen whether it satisfies the ingredients so prescribed as discussed above. Right from written report presence of the petitioner, Gitanjali Kumari @ Ginni Kumari happens to be who had lured the victim, 7 Kumud Komal and she persuaded her to come to the house of Bali Kumar to participate in a marriage ceremony and from there, she along with her aunt taken her near a bridge on the pretext of meeting with nature's call from-where she was kidnapped by remaining accused who were present since before. Presence of petitioner, Gitanjali Kumari @ Ginni Kumari is further supported by PWs-1 and 3. PW-2 has turned hostile. Admittedly, presence of another petitioner, Ranju Devi visualized subsequently, therefore, she was not named by other PWs but the victim had divulged her presence also who along with Gitanjanli Kumari took her near bridge from-where she was kidnapped.
9. Whatever inconsistency, exaggeration contradiction happens to be more particularly in the evidence of PW--4 in consonance with her earlier statement recorded under Section 164 Cr.P.C. is a matter of trial which would be considered by the trial court at appropriate stage because there happens to be an explanation at her end but so far present stage is concerned, the same is going to change the scenario. 8
10. Consequent thereupon, I do not see any illegality, infirmity in the order impugned. The instant petition, accordingly, is found to be devoid of merit, thus, is dismissed.
( Aditya Kumar Trivedi, J.) perwez