Section 319 Cr.P.C. requires stronger evidence than prima facie for summoning additional accused; mere suspicion is insufficient.

1. Heard Mr. Sachin Kumar, the learned counsel appearing on behalf of the petitioner.

2. Heard Ms. Nitu Sinha, the learned counsel appearing on behalf of the Opposite Parties.

3. The petitioner has filed this criminal revision application with a prayer to quash and cancel the order dated 23.03.2019 passed by Diwakar Pandey, Learned Additional Judicial Commissioner-XVIII-cum-Special Judge, Ranchi, in Misc. Criminal Application No. 391/18 arising out of R.C. 15A/2009 (R) whereby and whereunder the petition filed by the present petitioner under Section 319 of the Criminal Procedure Code with a prayer to summon Laxman Ram (opposite party no. 2), the then Executive Engineer has been rejected .

4. It is submitted that pursuant to the order dated 30.06.2009 passed by this Hon’ble Court in Writ Petition (PIL) No.803/2009, a preliminary enquiry being PE 03(A)/09(R) was conducted and thereafter, the CBI / ACB / Ranchi registered an F.I.R. being R.C. 15A/2009(R) under Sections 120B, 420, 467, 468, 471 of IPC and Sections 13(2) r/w 13(1)(d) of P.C. Act, 1988 against the Opposite Party No.2 who was the then Executive Engineer, and the contractor and unknown others alleging inter-alia that the Opposite Party No.2, during the period 2005- 06, entered into criminal conspiracy and the contractor submitted false / bogus invoices showing procurement of Bitumen for execution of the contractual work awarded in its favour, which caused wrongful gain to the Contractor and corresponding wrongful loss to the Government of Jharkhand. The Contractor submitted total 08 invoices showing procurement of Bitumen against the work and 04 invoices were false and fabricated, but the Opposite Party No.2 in abuse of his official position dishonestly and fraudulently certified the bills of the Contractor for payment and the Contractor received payment. After completion of investigation, the C.B.I. submitted Charge-sheet No.09/2010 dated 30-11-2010 and the executive engineer was not charge-sheeted.

5.On 09-04-2018, the petitioner had filed a petition before the learned trial court under Section 319 of Code of Criminal Procedure with a prayer to make the present Opposite Party No.2 namely, Laxman Ram, who was the then Executive Engineer to be made an accused in the case. The petition was dismissed by the learned trial court vide impugned order date 23-03-2019.

Arguments of the petitioner

6. The learned counsel for the petitioner submits that the involvement of the Opposite Party No.2 in the case transpired during trial in the evidences of the witnesses and accordingly sufficient materials have come in their evidence showing the role of the Opposite Party No.2 in the commission of the alleged offences and hence the learned court below ought to have summoned him under section 319 of Cr.P.C to face trial in the case.

7. The learned counsel for the petitioner referred to the evidences of PW-05, PW-8, PW-10, PW-11 and PW-12 and submitted that the Opposite Party No.2 (the then Executive Engineer) was involved in the case right from the date of execution of the agreement for work with the contractor and was the signatory to the agreement with the contractor and was responsible for making payment of the bills to the contractor . He submits that the entire allegation in the case is in relation to payment of bills against forged bitumen invoices alleging that the bitumen was not issued from the concerned Government Oil Companies against such four bitumen invoices.

8. The learned counsel also referred to the deposition of defence witness D.W.-3 and Exhibit-E to submit that in his evidence the role of the Executive Engineer in the matter of payment was fully described which was much more than