Ganpat Mauar @ Ganpati Mauar vs The State of Bihar

Heard learned Senior Counsel for the petitioners

and learned Additional Public Prosecutor representing the

State.

An order, dated 26.07.2014, passed by learned

Ad hoc Additional Sessions Judge II, Bhojpur, at Ara, in

Sessions Trial No. 427 of 2011, arising out of Tarari Police

Station Case No. 70 of 2003, whereby the learned Court

below has issued processes against the petitioners under

Section 319 of the Code of Criminal Procedure, 1973 (for

brevity, "the Code") to face trial, is under challenge in the

present criminal revision application filed under Section 397

read with Section 401 of the Code.

The accused of the said trial are charged of the

offences punishable under Sections 307 / 149, 147, 148 and

504 of the Indian Penal Code.

It appears that Tarari Police Station Case No.

70 of 2003 was registered on 13.12.2003, on the basis of

fardbayan of Opposite Party No. 2, alleging that (i) Aditya

Mauar (ii) Bindhyachal Mauar (iii) Dinanath Mauar (iv) Kedar

Mauar (v) Bhim Mauar (petitioner no. 2 herein) (vi) Ganpati

Mauar (petitioner no. 1 herein) had assaulted the informant

and his family members variously, there being dispute over

passage between the two families. On the same day, Tarari

Police Station Case No. 69 of 2003 was registered on the

basis of fardbayan of one Kedar Mauar, alleging commission

of offences punishable under Sections 147, 148, 149, 324,

307 of the Indian Penal Code and Section 27 of the Arms Act,

1959. In Tarari Police Station Case No. 70 of 2003, the Police

submitted charge sheet against four persons, showing these

petitioners, who were also accused, as not sent up. The

persons against whom the charge sheet was submitted were

thereafter put on trial. At the trial, the witnesses, in their

evidence, stated about the active role played by not arraigned

accused persons, i.e. these petitioners. PWs 1, 2 and 3, in

their examinations-in-chief and cross-examination, asserted

the presence of petitioner no. 1 at the place of occurrence

with a country-made pistol and petitioner no. 2 with a gun.

Considering such evidence adduced at the trial,

learned Trial Court, coming to a conclusion of strong suspicion

of the participation of these petitioners in the commission of

the offence, has summoned them, in exercise of power under

Section 319 of the Code.

Mr. Akhileshwar Prasad Singh, learned Senior

Counsel, appearing on behalf of the petitioners, has

submitted that the Police, upon completion of investigation,

finding no material against these petitioners in their Police

report, had shown these petitioners as not sent up. The said

police report was accepted by the learned Court below and

accordingly trial commenced against only such persons

against whom the charge sheet was submitted. He has

contended that effect of acceptance of the final report

submitted by the police is of discharge of these petitioners

and, therefore, they could not have been put on trial

subsequently. He has also submitted that evidence of

prosecution witnesses adduced at the trial are insufficient to

constitute a case of strong suspicion against these petitioners

of their participation in commission of offence and on that

ground also, the impugned order requires interference.

The first contention raised by Mr. Singh, learned

Senior Counsel, is not at all tenable. Section 319 of the Code

confers upon the Trial Court a jurisdiction to summon such

persons who are not accused. A person, who has been made

accused in the First Information Report and against whom no

charge sheet has been submitted by the Police and against

whom cognizance has not been taken, can still be summoned

in exercise of power under Section 319 of the Code.

The Supreme Court''s decision, in the case of

Hardeep Singh v. State of Punjab, reported in (2014) 3

SCC 92, is direct answer to this, paragraphs 116 and 117.6

of which read thus:-

"116. Thus, it is evident that power under Section 319 Code of Criminal Procedure can be exercised against a person not subjected to investigation, or a person placed in Column 2 of the charge-sheet and against whom cognizance had not been taken, or a person who has been discharge. However, concerning a person who has been discharged, no proceedings can be commenced against him directly under Section 319 Code of Criminal Procedure without taking recourse to provisions of Section 300(5) read with Section 398 CrPC.

117.6 A person not named in the FIR or a person though named in the

Fir but has not been charge-sheeted or a person who has been discharged can be summoned under Section 319 Code of Criminal Procedure provided from the evidence it appears that such person can be tried along with the accused already facing trial. However, insofar as an accused who has been discharged is concerned the requirement of Sections 300 and 398 CrPC has to be complied with before he can be summoned afresh."

As regards the question as to whether the

evidence of prosecution witnesses adduced at the trial, the

Trial Court ought to have summoned the petitioners under

Section 319 of the Code, I am of the view that the test that

has to be applied in such cases is that if the allegations went

unrebutted, whether they would lead to conviction of such

person or not. The power under Section 319 of the Code is

discretionary and extra-ordinary power vested in the Trial

Court. It is true that only where strong and cogent evidence

occurred against a person from the evidence led before the

Court, such power should be exercised and not in a casual

manner.

The prosecution witnesses, in their evidence

adduced at the trial, have alleged active participation of these

petitioners in the commission of the offence. Summoning of

these petitioners, in such circumstance, cannot be said to be

wholly unjustified.

I do not find any illegality in the impugned

order. This application is accordingly dismissed.