Judgment:
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Revision No. 162 of 2008 1 Jai Shankar Dubey, Son of Rajdeo Dubey 2 Baby Devi, wife of Jai Shankar Dubey All residents of village Karamdi, PO & PS Chainpur, District- Palamau …. … Petitioner(s) -V e r s u s- 1. State of Jharkhand 2. Lila Devi, wife of Late Vijay Dubey, resident of village- Purabdiha, Tola- Karamdih, P.S.- Chainpur, District- Palamau …. ... Opposite Parties CORAM: - HON’BLE MR. JUSTICE RAVI NATH VERMA For the Petitioner(s) : - M/s. Mahesh Tiwari & Pankaj Kumar Dubey, Advocates For the Opp. Parties : - Md. Farook, Manoj Kumar No. 2, Advocates CORAM: HON’BLE MR. JUSTICE RAVI NATH VERMA ----------- C.A.V. ON:
30. 06/2015 PRONOUNCED ON:
10. 09/2015 The petitioners have questioned the legality of the order dated 18.12.2007 passed by Additional Sessions Judge, F.T.C.-II, Palamau in S.T. No. 358 of 2006 whereby on an application filed by the prosecution under Section 319 of the Code of Criminal Procedure (in short “the Code”), summons have been issued to the petitioners to face trial along with other accused persons.
2. Shorn of unnecessary details, the facts giving rise to the present case are that at the instance of the present opposite no. 2 Lila Devi, whose statement was recorded in Sadar Hospital, Daltonganj, Chainpur P.S. Case no. 74 of 2006 was instituted under Sections 147, 148, 149, 323, 324, 325, 326 and 307 I.P.C. and subsequently Section 302 I.P.C. was also added on the allegation that her husband Bijay Dubey, the deceased was going to call a Mistri from village Katua on 29.05.2006 at about 7:30 a.m. and when he reached near the house of Shambhu Nath Dubey, all the accused persons including Shambhu Nath Dubey, Nawal Dubey, Jai Shankar Dubey, Dinanath Dubey, Rajdeo Dubey, Lal Babu Dubey, Dulari Devi and Baby Devi armed with various weapons surrounded her husband and they all assaulted her husband with Tangi, Sabal and Lathi as a result, her husband fell down and became unconscious and due to said assault, there was fractures in the hands of her husband. Her husband also 2 sustained other injuries. The occurrence was witnesses by several villagers. When the informant and her family members came to save the injured, the accused persons fled away. It appears from the record that the injured was shifted to hospital where he succumbed to the injuries.
3. After investigation, the police submitted the charge sheet against Sambhu Nath Dubey, Dulari Devi, Rajdeo Dubey, Nawal Dubey, Malti Devi and Dina Nath Dubey. However, final form was submitted against the two petitioners and one another accused Lal Babu Dubey. Thereafter, charges were framed and the trial proceeded. After examination of eight witnesses including the informant Lila Devi when five formal witnesses were yet to be examined, a petition was filed by the prosecution on 26.09.2007 under Section 319 of the Code to summon the petitioners and another accused also to face trial. After hearing the parties and examining the oral evidences available on record, the court below by order dated 18.12.2007 directed to issue summons to the two petitioners and another accused Lal Babu Dubey.
4. Mr. Mahesh Tiwari, learned counsel appearing for the petitioners submitted that since the police after investigation had not sent up the petitioners to face trial, the direction of the trial court to summon the petitioners to face trial along with other accused is perverse and bad in law. It was also submitted that it is no doubt a settled view that in course of trial of an offence, when it appears from the evidence that any person, not being accused, has committed any offence for which such person could be tried together with the accused facing trail, the court may proceed against such person for the offence which he appears to have committed but in the instant case, the evidences available on record after examination of 8 witnesses are not even prima facie sufficient to show the complicity or grave suspicion to form any ground for issuance of summons under Section 319 of the Code. The learned counsel relying upon the case Brindavan Das Vs. State of West Bengal; 2009(2) East Cr.C. 183 (S.C.) 3 submitted that the Hon’ble Supreme Court in that case held that the power vested in the Court under Section 319 of the Code should be used sparingly and the evidence, on which the same has to be invoked, should indicate a reasonable prospect of conviction of persons to be summoned. In the instant case as there is no sufficient evidence on record, the issuance of summons is not sustainable and bad in law. It was also submitted that summoning of additional accused persons at the fag end of the trial amounts to recommencing the entire proceeding from the very beginning.
5. Refuting the above submissions, learned counsels appearing for the opposite party and for the State seriously contended that a person may not have been charge-sheeted by the Investigating Officer but it was well within the jurisdiction of the trial court to summon such person to face trial if it appeared to the court after examining the oral evidences brought on record during trial that an offence had been committed by such person. It was also submitted that almost all the witnesses examined by the prosecution in court below have specifically testified that the petitioners had also assaulted the deceased and that the decision to proceed or not to proceed against such person under Section 319 of the Code was completely within the discretion of the trial court. As such, there is no illegality in the order impugned and no case is made out for interference by this Court sitting in revision.
6. I have given a thoughtful consideration to the rival submissions and after perusing the photo copies of depositions of the witnesses examined in court below enclosed with this revision application, I find that almost all the witnesses including the informant examined as P.W. 8 have clearly testified that the petitioners, who were armed with Lathi, had also assaulted her husband- the deceased. It is not that the statements of witnesses are dependent on any hearsay evidence rather in clear words they have said about the role played by the petitioners as eye-witnesses. It is true that before taking recourse to the provisions of Section 319 of 4 the Code, the trial court would have to be satisfied that the requisite conditions for taking such action actually existed. Commission of an offence by the persons not facing trial must appear to the Court concerned to be a certainty. In the instant case, the complicity of the petitioners has been shown from the evidences adduced during trial. It would not be proper for this Court to deal with the evidences of the witnesses at this stage as the same would cause prejudice to the petitioners. Merely because after issuance of summons, the petitioners have to face trial along with other accused persons, which would amount to recommencing the whole proceedings or de-novo trial by re-examining the witnesses already examined, it cannot be said that there could be no justification for proceeding against the petitioners. At the stage of Section 319 of the Code, all that is required for invoking its extra-ordinary powers, is to get satisfied from evidence adduced before it that a person or persons against whom no charge had been framed, but whose complicity appears to be clear, should also be tried together with accused persons already facing trial. Undoubtedly, the discretion should be left to the Court to take a decision on the matter but judiciously.
7. In the present case, since the name of the petitioners appeared in the F.I.R. as well as in the evidence of the witnesses examined during trial, in my opinion, is sufficient to summon the accused persons i.e. the petitioners to face trial. The court below has judiciously and rightly invoked the provision of Section 319 of the Code.
8. In the result, the revision application, being devoid of any merit, is, hereby dismissed. (R.N. Verma, J.) Jharkhand High Court, Ranchi Dated, 10th September, 2015 Ritesh/N.A.F.R.