IMPORTANT POINT
The judgment emphasizes that invoking Section 319 Cr.P.C. requires evidence that, if unrebutted, would lead to conviction, and the court should refrain from exercising this power without such satisfaction.

JUDGMENT :

Heard Mr. S.J. Sarmah, learned counsel for the petitioner. Also heard Ms. B. Bhuyan, learned Additional Public Prosecutor, Assam, appearing for the State respondent No.1 and Mr. A.A. Dewan, learned counsel appearing for the respondent No.2.

2. Correctness or otherwise of the order dated 28.01.2019, passed by the learned Sub-Divisional Judicial Magistrate, Kaliabor, Nagaon, in PRC Case No.232/2017, registered under Section 420/468/409 of the IPC is challenged in this petition under Section 482 read with Section 397 and 401 of the Code of Criminal Procedure, 1973. It is to be noted here that vide impugned order dated 17.03.2021 the learned Court below has invoked the jurisdiction under Section 319 Cr.P.C. and impleaded the petitioner as one of the accused in the aforementioned case.

3. The background facts leading to filing of the present petition is briefly stated as under:-

“On 08.09.2016 one Lalit Borgohain of Hatbor, Borigaon, Jakhalabandha, lodged one FIR with the Officer-in-Charge, Jakhalabandha P.S. to the effect that his mother Smt. Bimala Gohain availed Government pension in her account which was maintained in the United Bank of India (UBI) located at Jakhalabandha and since 18.06.2016 some culprits have withdrawn a sum of Rs.10,00,000/- from the account of his mother through ATM, but no ATM card was issued by the UBI, Jakhalabandha Branch in the name of his mother and his mother never applied for the same. Upon the said FIR, the Officer-in-Charge, Jakhalabandha P.S. registered Jakhalabandha P.S. Case No.129/2016 under Section 420/468/409 IPC and thereafter, investigation was carried out, which culminated in submission of charge-sheet, being Charge-Sheet No.31, dated 31.03.2017 against three persons, namely, Mantu Hussain, Bipul Saikia and Smt. Ruby Kotoky. Upon the said charge-sheet the learned Court below has taken cognizance and issued process to the accused persons and on appearance of the accused persons, the learned Court below has framed charge against the accused persons under Section 420/468/409 IPC. Thereafter, the learned Court below has examined two witnesses, namely, Shri Lalit Borgohain and Smt. Bimala Gohain and after recording of the examination-in-chief of the aforesaid two witnesses, the learned Additional P.P. of the learned Court below had filed one petition under Section 319 Cr.P.C. for impleading the Branch Manager and the Cashier of the UBI, Jakhalabandha Branch, where the victim has maintained her bank account. Thereafter, hearing the learned Additional P.P., the learned Court below has allowed the petition and issued summon to the Branch Manager, UBI, Jakhalabandha Branch and Cashier of the said bank to appear before the Court below and to face trial. Thereafter, the petitioner, who was the Branch Manager of Jakhalabandha Branch of UBI, has approached this Court by filing the present petition challenging the correctness or otherwise of the impugned order dated 28.01.2019.”

4. Mr. Sarmah, learned counsel for the petitioner submits that the impugned order dated 28.01.2019 suffers from manifest illegalities and that the learned Court below has invoked the jurisdiction under Section 319 Cr.P.C. without there being any materials against the present petitioner. Referring to a decision of Hon'ble Supreme Court in the case of Hardeep Singh & Ors. vs. State of Punjab & Ors., (2014) 3 SCC 92. Mr. Sarmah submits that in the aforementioned case, Hon'ble Supreme Court has held that the test that has to be applied while invoking the jurisdiction under Section 319 Cr.P.C. is that more than a prima facie case as exercised at the time of framing of charge is required to be made out and sort of said satisfaction the jurisdiction of Section 319 Cr.P.C. cannot be invoked. Mr. Sarmah, referring to judgment of the learned Court below dated 14.11.2023 submits that the learned Court below has acquitted all the accused persons including the present petitioner from the charge under Section 420/468/409 IPC, though