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2008(1) Crimes 691 (Jhar.)
JHARKHAND HIGH COURT
R.R. Prasad, J.
Lal Suraj and Anr. —Petitioners
versus
State of Jharkhand —Opp. Party
Cr. M.P. No. 1188 of 2005
Decided on 19-12-2007
Counsel for the Parties:
For the Petitioners:Mr. Anil Kumar Sinha, Sr. Advocate.
For the State: A.P.P.
IMPORTANT POINTS
(1) Section 319 Cr.P.C. covers any person who is not being tried already by Court i.e. even person named in FIR but not sent up for trial or even accused who had been discharged from the case.
(2) Section 193 Cr.P.C. cannot be an embargo to exercise of power under Section 319 Cr.P.C. by Sessions Court in Sessions Trial Case.
Headnote:Criminal Procedure Code, 1973—Section 319—Power to proceed against other persons appearing guilty—Petitioners though named in FIR in murder case were not charge-sheeted as investigation was going on when charge-sheet was filed against other four accused—Petitioners were summoned by Sessions Court on basis of evidence of PW6 and PW7 recorded during trial—Revision—Expression “not appearing as an accused” whether would prevent Court from summoning person as accused who had been named in FIR? No.
Held: So logical conclusion would be that the expression “any person not being the accused” occurring in Section 319 of Cr.P.C. clearly covers any person who is not being tried already by the Court. In other words, even the persons named in the FIR who were not sent up for trial or even the accused who have been discharged from the case can be summoned under Section 319 of Cr.P.C. I am supported, in my view, with a decision rendered in a case of Joginder Singh and Anr. v. State of Punjab and Anr., reported in 1979 AIR (SC) 339.
Learned counsel while submitting that the person named in the FIR against whom investigation is still going on, cannot be summoned under Section 319 of Cr.P.C. must have in his mind that the Sessions Court may not have jurisdiction to take cognizance against the person against whom charge-sheet has not been submitted and thereby his case has not been committed to the Court of Sessions. But this submission is not acceptable in view of the legal position that when a case is committed to the Court of Sessions in respect of an offence, the Court of Sessions takes cognizance of the offence and not of the accused and once the Session Court is in seisin of the case, as a result of the committal order against some accused, the power under Section 319(1) can come into play and such Court can add any person not an accused before it and in that situation, one cannot put the provision as contained in Section 193 of Cr.P.C. as an embargo to the provision of Section 319 of Cr.P.C. and, therefore, there would be no question of reading Section 319 (1) of Cr.P.C. subject or subordinate to Section 193. (Paras 8 and 9)
Result: Petition dismissed.
JUDGMENT
R.R. Prasad, J.—Heard learned counsel appearing for the petitioners and learned APP appearing for the State.
2. This application had been filed under Section 482 Cr.P.C. for quashing the order dated 17.8.2005 passed by learned 4th Additional Sessions Judge, Palamau at Daltonganj in ST No. 209 of 2004 arising out of Sadar (Town) Daltonganj PS Case No. 381 of 2000 instituted under Section 302 and allied Section of Indian Penal Code and also under Section 27 of Arms Act as well as under Sections 3, 4, 5 of Explosive Substance Act, whereby and whereunder, summons have been issued against these petitioners under Section 319 of the Code of Criminal Procedure to face trial.
3. It appears that an FIR was lodged on the basis of the fardbeyan, given by one Bihari Singh, alleging therein, that while he along with Ajay Singh was sitting outside his shop, the accused persons, boarding on a Marshal Jeep, came over there and started resorting to firing indiscriminately and hurling bombs, as a result of which, the informant as well as said Ajay Singh received several injuries and they were removed to hospital where said Ajay Singh succumbed to his injuries and a case was registered against several persons, including the petitioner No.1, and also against one person, who was described as the nephew of Madhu Singh. The case having been instituted was taken up for investigation and during that period, said Bihari Singh also succumbed to his injuries. In course of time, the police submitted charge-sheet against four persons but so far as these petitioners are concerned, the charge-sheet at that time was not submitted as the investigation against them was going on. Thereafter, cognizance of the offence was taken and the case was committed to the Court of Sessions and the trial with respect to other accused persons commenced and in that course, PW6 and PW7 were examined, who in their evidences disclosed about the complicity of these petitioners and hence these petitioners were summoned under Section 319 of Cr.P.C. for facing trial.
4. Being aggrieved with that, these petitioners have preferred this application whereby the impugned order, summoning these petitioners to face trial, has been sought to be quashed.
5. The only submission advanced by Mr. Anil Kumar Sinha, Sr. Advocate, appearing for the petitioners, is that though these petitioners have been summoned under Section 319 of Cr.P.C., the investigation against them is still going on and, as such, these petitioners, being an accused in a case cannot be summoned under Section 319 of Cr.P.C. to be put on trial as the provision, contained in Section 319 of Cr.P.C., does prescribe that only the person who being not an accused in a case can be summoned under Section 319 of Cr.P.C. and, therefore, the order impugned is fit to be set aside. Learned counsel in support of his submission has referred to a decision rendered in the case of Guriya @ Tabassum Tauquir & Ors. v. State of Bihar & Anr.,1 holding therein, that if the court is satisfied at any stage of the proceeding on the evidence adduced, that the persons who have not been arrayed as accused should face trial, the trial Court can take such a step to add such persons as accused. Learned counsel, putting much emphasis on the clause “not appearing as an accused”, submits that only those persons, who were not the accused, can be summoned under. Section 319 of Cr.P.C., but the Court below by summoning these petitioners, who are the named, accused in the FIR, has committed grave illegality and hence the impugned order is fit to be set aside.
6. The submission made on behalf of the petitioners virtually raises question relating to scope and parameters of the expression “not appearing as an accused” as has been engrafted under Section 319 of Cr.P.C., and hence provision as contained in Section 319 of Cr.P.C. needs to be taken note of which reads as follows:
“Power to proceed against other persons appearing to be guilty of offence—(1) Where,
