Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2009 Supreme(SC) 15

2009(1) Supreme 189
SUPREME COURT OF INDIA
Altamas Kabir and Markandey Katju, JJ.
Brindaban Das and others — Appellants
versus
State of West Bengal — Respondent
Criminal Appeal No. 9 of 2009
Decided on : 07-01-2009

Advocates appeared:
For the Appellants :Pradip Ghosh, P.S. NArasimha, Sr. Advs., Pijush K. Roy, Amit De and G. Ramakrishna Prasad, Advocates
For the Respondent:Avijit Bhattachrjee, Saumya Kundu, H.K. Puri, V.M. Chauhan, S.K. Puri and Mrs. Priya Puri, Advocates.

IMPORTANT POINT
Section 319 Crpc. contemplates a situation where the evidence adduced by prosecution not only implicates a person other than the named accused but is sufficient for purpose of convicting the person to whom summons is issued.

Headnote:Criminal Procedure Code, 1973 – Section 319 – Application u/s 319 by complainant – Order passed by Sessions judge directing appellants to appear before Court in connection with offence u/s 302 – Issuance of warrant of arrest against appellants for their alleged refusal to receive summons issued against them u/s 319 of CrPC – Revisional Application thereagainst – Disposed of by High Court with a direction to appellants to surrender before Court – Appeal – The fulcrum on which the invocation of Section 319 Crpc rests in whether the summoning of persons other than the named accused would make such a difference to prosecution as would enable it not only to prove its case but to also secure the conviction of the persons summoned – Instantly on the quality of evidence adduced by prosecution as far as appellants were concerned, it was difficult to hold with any amount of certainty that same would in all probability secure a conviction against appellants – Since in present case, except for a statement in FIR, that complainant strongly believed that murder of her father was pre-planned and there were many conspirators involve there was no direct evidence of complicity of appellants in incident, held not proper to subject appellant to trial by invoking provisions of Section 319 of Crpc. – Appeal allowed setting aside order passed by Sessions Judge summoning appellants u/s 319 Crpc. and impugned order of High Court directing appellants to surrender before Trial Court. (Paras 19 to 23)
       Facts of the case :
       Present appeal has been preferred challenging order passed by Sessions Judge summoning appellants u/s 319 Crpc in a case u/s 302 IPC and order passed by High Court directing appellants to surrender before Trial Court.
       Findings of the Court :
       Since in the instant case, except for a statement in FIR, that complainant strongly believed that murder of her father was preplanned and there were many conspirators involved, there was no direct evidence of complicity of appellant in incident, held not proper to subject appellants to trial by invoking provisions of Section 319 Crpc.
       Result : Appeal allowed.

JUDGMENT

Altamas Kabir, J. —

1.Leave granted.

2.On an application filed by the defacto complainant under Section 319 of the Code of Criminal Procedure, the Additional District and Sessions Judge, Fast Track Court, Jhargram, by his order dated 14.6.2006 directed the appellants to appear before the Court on 22.6.2006 in connection with S.T. Case No.XXIX/February, 2006 under Section 302 of the Indian Penal Code (G.R. case No.450 of 2002).

3.The complainant, Ashok Kumar Pattanayak, lodged the First Information Report at Gopiballabhpur PS on 29.11.2002 at about 8.25 a.m. alleging that on the same date at about 7.30/8.00 a.m. while his father, Ramesh Chandra Pattanayak, was supervising the work in his brick field known as Hena Brick, he was assaulted on the head from behind with a spade (kodal), as a result whereof he died instantly. The driver of the truck to whom the deceased was speaking at the time of assault and the khalasi of the truck, as well as other labourers, raised a alarm. The police also arrived at the spot and apprehended the assailant, Laxman Murmu. In the FIR it was alleged that besides Laxman Murmu, several other persons could also have been behind the incident. The said FIR was written by Ila Pattanayak, the sister of the de-facto complainant, and on the basis of the said complaint, Gopiballabhpur PS Case No.48 of 2002 dated 29.11.2002, was started against the said Laxman Murmu under Section 302 IPC.

4.During the investigation of the above case, the appellants herein filed an application under Section 438 of the Code of Criminal Procedure before the Sessions Judge and such prayer for anticipatory bail was allowed on 14.8.2003. The appellants were directed to appear before the Sub-Judicial Divisional Magistrate, Jhargram, and on their appearance before the learned Magistrate on 16.8.2003, the appellants were released on temporary bail with a direction to them to bring appropriate orders from the higher Court. Subsequently, on an application under Section 439 Cr.P.C. the Sessions Judge, Paschim Midnapur, granted bail to the appellants on 23.9.2003. The de-facto complainant thereupon filed an application under Section 439(2) Cr. P.C. before the Sessions Judge praying for cancellation of the bail granted to the appellants but the same was rejected on 16.12.2003. After completion of investigation the police submitted charge-sheet against the accused Laxman Murmu. As there was no material against the appellants herein they were neither shown in the charge-sheet nor were they sent up for trial and on the prayer made by the Investigating Officer the appellants were discharged from the case by order dated 30.6.2004.

5.Two years later on 22.6.2006 the trial Court issued warrants of arrest against the appellants for their alleged refusal to receive summons which had been issued to them earlier under Section 319 Cr.P.C. The said order was challenged in the High Court in its revisional jurisdiction and it was submitted that once the appellants had been discharged on the prayer made on behalf of the Investigating Officer, the trial Court erred in issuing the summons under Section 319 of the Code on the same materials.

6.The High Court came to the conclusion that there had not been any wilful defiance of the summons which necessitated the issuance of warrant of arrest and disposed of the revision application with a direction to the appellants herein to surrender before the Court within 3 weeks from the date of the order and thereafter to apply for bail. The execution of the warrant of arrest was stayed for a period of four weeks for the said purpose.

7.It is against the said order of the High Court that the present appeal has been filed.

8.Mr. Pradip Ghosh, learned senior advocate, appearing for the appellants, submitted that in the instant case there was no direct evidence against the appellants which could have formed the basis for issuance of summons under Section 319 Cr.P.C. Not a single eye-witness had been cited in the instant case

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2009 Supreme(SC) 15

2009(1) Supreme 189SUPREME COURT OF INDIAAltamas Kabir and Markandey Katju, JJ.Brindaban Das and others — AppellantsversusState of West Bengal — RespondentCriminal Appeal No. 9 of 2009Decided on : 07-01-2009

IMPORTANT POINTSection 319 Crpc. contemplates a situation where the evidence adduced by prosecution not only implicates a person other than the named accused but is sufficient for purpose of convicting the person to whom summons is issued.

Cases Referred (5)

2009(1) Supreme 189
SUPREME COURT OF INDIA
Altamas Kabir and Markandey Katju, JJ.
Brindaban Das and others — Appellants
versus
State of West Bengal — Respondent
Criminal Appeal No. 9 of 2009
Decided on : 07-01-2009

IMPORTANT POINT
Section 319 Crpc. contemplates a situation where the evidence adduced by prosecution not only implicates a person other than the named accused but is sufficient for purpose of convicting the person to whom summons is issued.