The discretionary nature of Section 319 Cr.P.C., the requirement of stronger evidence than mere probability of complicity, and the court's active role in eliciting necessary materials and finding the truth in a criminal case.

JUDGMENT :

SANJAY KUMAR DWIVEDI, J.

1. Heard Mr. A.K. Sahani, learned counsel for the petitioner, Mr. Ashok Kumar, learned counsel for the State and Mr. Yashvardhan, learned counsel for opposite party no. 2.

2. This petition has been filed for quashing the order dated 19.08.2016 passed by the learned Additional Sessions Judge-II, Fast Track Court, Bokaro in Sessions Trial No. 290 of 2014 by which the petition filed by the prosecution under Section 319 of Cr.P.C. has been allowed, which is now pending in the court of the learned Sessions Judge-II, Fast Track Court, Bokaro.

3. On the written report of opposite party no. 2, B.S. City P.S. Case No. 214 of 2014 dated 06.07.2014 was registered under Sections 498A, 307/34 of the Indian Penal Code and subsequently on 16.07.2014 Section 302 of the Indian Penal Code was added.

4. Mr. A.K. Sahani, learned counsel for the petitioner submits that the investigation has been carried out and the charge-sheet has been submitted whereby the petitioner was not sent up for trial. He further submits that further investigation is pending. He also submits that in course of trial, certain witnesses were examined and by the impugned order the learned court has called upon the petitioner to face the trial under Section 319 Cr.P.C. He further submits that supplementary counter affidavit has been filed by the State, wherein, it has been disclosed in paragraph 5 that the charge-sheet has not been submitted against the petitioner as there was insufficient evidence. He also submits that prematurely the trial court has passed the impugned order. He relied upon the judgment rendered by the Hon'ble Supreme Court in the case of Brindaban Das and Others vs. State of West Bengal, (2009) 3 SCC 329.

5. Paragraphs 25, 26 and 29 of the said judgment are quoted herein-below:

“25. The common thread in most matters where the use of discretion is in issue is that in the exercise of such discretion each case has to be considered on its own set of facts and circumstances. In matters relating to invocation of powers under Section 319, the court is not merely required to take note of the fact that the name of a person who has not been named as an accused in the FIR has surfaced during the trial, but the court is also required to consider whether such evidence would be sufficient to convict the person being summoned. Since issuance of summons under Section 319 Cr.P.C. entails a de novo trial and a large number of witnesses may have been examined and their re-examination could prejudice the prosecution and delay the trial, the trial court has to exercise such discretion with great care and perspicacity.

26. Although a somewhat discordant note was struck in Rajendra Singh case the views expressed in the majority of decisions of this Court on the point subscribe to the view that the power under Section 319 Cr.P.C. is to be invoked, not as a matter of course, but in circumstances where the invocation of such power is imperative to meet the ends of justice.

xxx xxx xxx

29. Section 319 Cr.P.C. contemplates a situation where the evidence adduced by the prosecution not only implicates a person other than the named accused but is sufficient for the purpose of convicting the person to whom summons is issued. The law in this regard was explained in Ram Kishan Rohtagi case and as pointed out by Mr. Ghosh, consistently followed thereafter, except for the note of discord struck in Rajendra Singh case. It is only logical that there must be substantive evidence against a person in order to summon him for trial, although, he is not named in the charge-sheet or he has been discharged from the case, which would warrant his prosecution thereafter with a good chance of his conviction.”

6. Mr. A.K. Sahani, learned counsel for the petitioner referred to the evidence which has been contained in Annexure-2 Series and submits that the witnesses have not specifically named the petitioner and in spite of that the learned court has allowed the petition under Sectio