Any person with complicity in the crime will face trial under Section 319 of the Cr.P.C.

JUDGMENT :

SANJAY KUMAR DWIVEDI, J.

1. Heard Mr. Mahesh Tewari, learned counsel appearing for the petitioner and Mr. Azeemuddin, learned A.P.P. for the State.

2. By order dated 06.10.2021, notice was issued to the O.P. No. 2 in the matter. In the order dated 06.12.2021, it has been recorded that the office has pointed out that the notice has been effected upon O.P. No. 2 and with a view to give one opportunity to the O.P. No. 2, the matter was fixed for today. Today, on repeated calls, nobody has responded on behalf of the O.P. No. 2 and this matter is heard ex-parte against O.P. No. 2.

3. This petition has been heard through Video Conferencing in view of the guidelines of the High Court taking into account the situation arising due to COVID-19 pandemic. None of the parties have complained about any technical snag of audio-video and with their consent this matter has been heard.

4. This criminal miscellaneous petition has been filed for quashing of the order dated 02.08.2019, passed in S.T. No. 62(A) of 2017, arising out of Barwadda P.S. Case No. 167 of 2016, corresponding to G.R. No. 4748 of 2016, passed by the learned Additional Sessions Judge-VIII, Dhanbad, by which, the petitioner has been called under Section 319 of the Cr.P.C. to face the trial.

5. The prosecution case was filed stating therein that on 27.11.2016 while the informant Sachindra Nath Thakur was in his residence, in the meantime Santosh Ram, Bihari Ram and his brother entered in the house of the informant. All the three brothers were armed with lathi, danda and iron rod and assaulted the informant and his father Rabindra Nath Tahkur, causing injury on their body. It is further alleged that the dispute has arisen due to parking auto and motorcycle of the informant and the accused persons. As per the FIR, Rajiv Parasar (petitioner), son of Ram Pujan Singh is an order giver to assault the informant and his father. On the basis of the aforesaid allegation, the FIR has been lodged being Barwadda P.S. Case No. 167 of 2016 dated 27.11.2016 under Sections 341, 323, 307, 448, 504 and 506/34 of the Indian Penal Code.

6. Mr. Mahesh Tewari, learned counsel appearing for the petitioner submits that after investigation, the charge-sheet has been submitted, wherein this petitioner has not been sent up for trial. He submits that there is no material against the petitioner in spite of that he has been called to face the trial.

7. The Court has perused the impugned order. By the impugned order dated 02.08.2019, it has been recorded that PWs. 7 and 8, who are the doctors and six other witnesses including the informant and victim have categorically stated in their deposition that the accused Rajiv Parasar is the main culprit, who along with others have assaulted the informant party and as per instructions and instigation, chargesheeted persons did the act. The learned Court, on the statements of the witnesses, wherein they have disclosed that this petitioner was the order giver, and in view thereof, he has been called under Section 319 Cr.P.C. to face the trial. It transpires that the learned Court has passed the aforesaid order after going through the statements of the witnesses.

8. It is well settled principle of law that it is well within the jurisdiction of the learned Court that any person has got complicity in the crime, he will face the trial under Section 319 Cr.P.C. Reference may be made to the case of Sunil Bharti Mittal vs. Central Bureau of Investigation, (2015) 4 SCC 609, wherein the Hon’ble Supreme Court in Para-50, held as follows:

“50. Person who has not joined as accused in the charge-sheet can be summoned at the stage of taking cognizance under Section 190 of the Code. There is no question of applicability of Section 319 of the Code at this stage (See: SWIL Ltd. vs. State of Delhi). It is also trite that even if a person is not named as an accused by the police in the final report submitted, the Court would be justified in taking cognizance of the offence and to summon