1. Heard learned counsel for the petitioners, learned counsel for the informant and learned Additional Public Prosecutor for the State.
2. The two petitioners have preferred this application under Section 482 of the Criminal Procedure Code seeking quashing of the order dated 04.02.2005 passed by Additional District & Sessions Judge, F.T.C. No. III, Vaishali at Hajipur in Sessions Trial No. 510 of 1996 arising out of Sarai P.S. Case No. 72 of 1995 summoning them in exercise of powers conferred under section 319 of the Criminal Procedure Code for an offence under section 366A of the Indian Penal Code.
3. It was first contended by learned counsel for the petitioners placing reliance upon the decision of Apex Court in a Case Sohan Lal v. State of Rajasthan reported in A.I.R. 1990 SC 2158 and decision of this court in a case of Uma Shankar Sahay v. State of Bihar and another reported in 1998(2) BLJ 783; that since the two petitioners were made accused at the instance of informant in his complaint petition which formed basis of institution of Sarai P.S. Case No. 72/1995 along with another Chandrika Singh, but, police after investigation submitted charge sheet against non-petitioner and after accepting exoneration of the petitioners the learned Chief Judicial Magistrate accepting the outcome of the investigation took cognizance and committed the case only with respect to said Chandrika Singh during whose trial on prayer of informant under section 319 of the Criminal Procedure Code, the petitioners have been summoned, but in view of the above two decisions, there is no application of the provision as provided under section 319 of the Criminal Procedure Code once these two petitioners were exonerated at the very initial stage while accepting the final form submitted by police in exonerating them. But learned Additional Public Prosecutor as well as learned counsel representing the informant by placing reliance upon decision of Apex Court in a Case Suman v. State of Rajasthan reported in 2010(1) BBCJ IV 373; rightly submitted that the earlier decisions referred to above are no longer applicable in the instant case.
4. In para 15 of the Judgment (supra) the Apex Court has clearly held as such:
"15. In view of the settled legal position as above, we hold that a person who is named in the first information report or complaint with the allegation that he/she has committed any particular crime or offence, but against whom the police does not launch prosecution or files charge-sheet or drops the case, can be proceeded against under Section 319 Cr.P.C. if from the evidence collected/produced in the course of any inquiry into or trial of an offence, the Court is prima facie satisfied that such person has committed any offence for which he can be tried with other accused. As a corollary, we hold that the process issued against the appellant under Section 319 Cr.P.C. cannot be quashed only on the ground that even though she was named in the complaint, the police did not file chargesheet against her."
Further in the aforesaid case in para 16 after referring other different decisions such as: Michael Machado v. Central Bureau of Investigation (supra), Anil Singh and another v. State o Bihar and another, (2006)13 SCC 421 and Mohd. Shafi v. Mohd. Rafiq and another (2007) 14 SCC 544; towards end it has also been held by the Apex Court; "The basic requirements for invoking the above section is that it should appear to the court from the evidence collected during trial or in the inquiry that some other person, who is not 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 entertained some doubt, from the evidence, about the involvement of another person in the offence. 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. Second is that for such offence that other person could as well be tried along with the already arraigned accused. But even then, what is conferred on the court is only discretion as could be discerned from the words "the court may proceed against such person". The discretionary power so conferred should be exercised only to achieve criminal justice. It is not that the court should turn against another person whenever it comes across evidence connecting that other person also with the offence. A judicial exercise is called for, keeping a conspectus of the case, including the stage at which the trial has proceeded already and the quantum of evidence collected till then, and also the amount of time which the court had spent for collecting such evidence. It must be remembered that there is no compelling duty on the court to proceed against other persons."
5. Now it is crystal clear that jurisdiction of trial court in the instant case was not ousted for summoning the petitioners in exercise of powers conferred under section 319 of the Criminal Procedure Code which reads as such:
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 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 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.
6. Now it is to be seen whether in the instant case on the materials available the trial court exercised jurisdiction while summoning the petitioners as conferred under section 319 of the Criminal Procedure Code properly.
7. The relevant facts for this case is that the informant and petitioners are close agnates having one common house for residence wherein apart from the two petitioners who are issueless, informant's father and sister (victim) were also residing since mother of the informant was no more and father as said very simple person, none else was there in the family. The only girl in the family i.e. the victim who in fact as living under the guardianship of the petitioners who were also taking care of entire properties of the family. It is also said that accused facing trial Chandrika Singh a married person was visiting at the house in connection with some business relating to orchard of mango and in the night of 01.11.1994, he could be able to take away sister of the informant (victim). In the next very morning police was informed by him at the instance of the petitioners. At the relevant time, age of the victim erroneously be stated as 19 years, whereas she was aged about 17 years but police took no action, ultimately after 7 to 8 months when it could be confirmed that the victim was residing with accused facing trial the complaint was lodged stating therein occurrence took place inconnivance with and in collusion of the petitioners also was the accused no.1 mentioned in the complaint petition, which was sent for institution and investigation before police under section 156(3) of the Criminal Procedure Code. police after investigation as stated submitted chargesheet only against accused no.1 Chandrika Singh, who was facing trial during which as many as six witnesses including the informant were examined thereafter prayer was made to summon the petitioner also which was allowed giving rise to the instant case.
8. From the impugned order it appears that the court below though have considered evidence of the witnesses including one formal but mainly relied upon statements of P.Ws. 5 and 6 and learned counsel for the informant also led much stress on the statements of these two witnesses out of which along with intervener petitioner. Only copy of statement of P.W.5 Surendra Thakur is lying on record annexed with such petition.
9. Now let us first see what this witness P.W.5 says in para 3, he has stated that victim was taken away by Chandrika Singh, in collusion with the petitioners. There is nothing more in his statement in examination in chief relating to these two petitioners except that the admitted position that victim was residing in the common house. During cross-examination this witness in very para 8 states that he was not examined before I.O. though made his statement before Dy.S.P. and lastly in para 15 to 18, what he has said is that he has not an eye witness to the occurrence rather he could know about the same after 7 to 8 months of its being taken place through the informant himself who undisputedly was also not an eye witness and admittedly the informant being a school teacher resides at Muzaffarpur not at the P.O. village. Further it appears from the impugned order that there was one P.W. 2 Bhajan Singh who simply stated that accused facing trial Chandrika Singh used to visit the house belonging to the petitioners and P.W.4 Ram Singar Thakur states that victim was also residing therein from where she was kidnapped.
10. No doubt as specifically pointed out by learned counsel representing the informant that the witnesses appear to have stating age of the victim at the relevant time 16 to 17 years, though the age of the victim so far summoning the petitioner under section 319 of the Criminal Procedure Code is concerned, has got no special bearing but at the same time, it can be said that the informant who is said to be Headmaster of a school in the complaint petition itself was not very much sure about the age of his own sister, the victim. He admits informing the police for the first time on the very next day of the occurrence that victim was aged about 19 years but more than 8 months thereafter while filing complaint, he made out a case that it was his confused statement, in fact age of the victim was 17 years but what was the actual date of birth and age of the victim, it is best known to her guardians including the informant as admitted by learned counsel, the victim is an literate girl perhaps passed her matriculation examination, if it is so, I fail to appreciate what prevented the informant stating her actual date of birth and producing school certificate supporting the same. None production of available best piece of evidence also speaks a lot.
11. As stated above undisputedly the petitioners were the guardians of the victim duly authorized by the natural guardians i.e. her father. In fact as stated in the complaint, the natural guardian of the victim was also under the guardianship of the petitioners and all reside in one common house.
12. In view of the above factual aspects the evidence brought during trial as referred to above, cannot legally be said by any stretch of imagination sufficient for exercise of jurisdiction of the court under section 319 of the Criminal Procedure Code which is to be exercised only in the rare and suitable case not as a matter of routine.
13. Thus, it appears that impugned order is not at all sustainable, accordingly quashed and this application is hereby allowed.