The power under section 319 Cr.P.C should be exercised sparingly and with caution, and only when there is evidence indicating possible conviction.

JUDGMENT :

1. Heard Mr. Shekhar Prasad Sinha, the learned counsel for the petitioner, Mr. Bishambhar Shastri, the learned counsel for the respondent State and Mr. Pandey Neeraj Rai, the learned counsel appearing on behalf of the O.P.no.3.

2. This petition has been filed for quashing of the order dated 13.09.2011 passed in C-II Official Complaint Case No.109 of 2000 by learned Judicial Magistrate, Ranchi whereby he has been pleased to reject the petition dated 28.07.2011 filed under section 319 Cr.P.C.

3. Mr. Shekhar Prasad Sinha, the learned counsel appearing on behalf of the petitioner submits that on 30.11.1978 the petitioner and the O.P.No.2 and 3 entered into an agreement for sale of 8 katha of land of 17 Katha 3 chhataks comprising of sub-plot 595-I and 595-II of Hinoo, Ranchi-2. He further submits that on 27.01.1981 the O.P.No.2 and 3 filed Title Suit No.125 of 1981 for specific performance of contract in terms of the agreement dated 30.11.1978 but no sketch map of the suit land was filed along with the plaint as required under Order VII Rule 3 of the C.P.C. He further submits that learned Additional Sub Judge, Ranchi has been pleased to decree the suit in favour of O.P.No.2 and 3 by judgment dated 18.10.1982. On 24.01.1983 the O.P.Nos.2 and 3 who are decree holders in Execution Case No.1/83(A) filed the case for execution of the judgment and decree dated 18.10.1982, wherein the delivery of possession was passed. Aggrieved with that, the petitioner-judgment debtor preferred an appeal being F.A.No.27 of 1983(R) before the High Court which was dismissed by order dated 4.4.1990. The order dated 4.4.1990 passed in F.A. No. 27 of 1993(R) was challenged in L.P.A. No.27 of 1990(R) which was dismissed by the order dated 17.10.1990. On 23.11.1995 the petitioner judgment-debtor filed S.L.P. No.5061 of 1991 and after grant of leave the same was registered as Civil Appeal No.315 of 1992 and by order dated 23.11.1995 the same was dismissed. A review petition was filed which was rejected on 7.2.1996. He further submits that the petitioner has filed a petition under section 319 of the Cr.P.C. on the aforesaid background on 28.7.2011 for summoning Binita Minj, Bench Clerk to face trial by the accused person which was dismissed by order dated 15.11.2009. He submits that the learned trial court has rejected the petition under section 319 of the Cr.P.C in a routine manner and there is no consideration on the spirit of section 319 Cr.P.C. He submits that during the evidence of witnesses her name has come. On this ground, he submits that the interim order may kindly be quashed and the petition of the petitioner under section 319 Cr.P.C may kindly be allowed.

4. On the other hand, Mr. Pandey Neeraj Rai, the learned counsel for the O.P.No.3 submits that criteria of section 319 of Cr.P.C has not been satisfied and the learned court has rightly rejected the petition. He further submits that the order was passed twelve years back. He further submits that only for delaying tactics the present petition was filed which was rightly rejected. This is not a case of calling any person under section 319 Cr.PC.

5. In view of the above submission of the learned counsel for the parties, it appears that in earlier litigation the case has been travelled up to the Hon’ble Supreme Court, however, the complaint case was filed on the basis that there was some forgery in the concerned file of the trial court and for the same the trial is going on. During pendency of the trial, this petition has been filed. The learned trial court by a reasoned order dismissed the said petition considering that the case is an old case of 2000 which required to be expeditiously disposed of. Both the accused are also senior citizens aged about 70 years and one has already died during pendency of the present Cr. M.P. The learned court has further considered that if the petition is allowed the trial will start afresh once again in a denovo manner which unnecessarily delay the case. The le