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Judgment
The lawyers have no objection with regard to the proceeding, which has been held through video conferencing today at 11.00 A.M. They have no
complaint in respect to the audio and video clarity and quality.
Heard learned counsel for the petitioner, learned A.P.P. for the State and learned counsel for O.P. No. 2.
This case has been listed today under the heading for Orders on an interlocutory application being I.A. No. 7544 of 2019, praying therein to extend the
period of stay, which was granted by this Court.
It is the case of the petitioner that since more than six months have elapsed after grant of stay, the court below is proceeding in the matter in terms of
the judgment passed by the Hon'ble Supreme Court in the case of ""Asian Resurfacing of Road Agency Pvt. Ltd. and Another-versus- Central Bureau
of investigation, reported in (2018) 16 SCC 299"". Thus, the aforesaid interlocutory application has been filed.
Considering the fact that both the parties have appeared and also materials on record, it is not necessary to pass any order on the interlocutory
application, rather than to dispose of the main petition. Thus, with the consent of the parties, this application is being disposed of at this stage itself.
The petitioners, in this application, have challenged the order dated 20.01.2016, by which a petition under Section 319 of the Code of Criminal
Procedure has been allowed by the Additional Sessions Judge-II, Jamtara in connection with S.T. No. 82 of 2013.
Learned counsel appearing for the petitioners submits that the order is absolutely cryptic and does not even confer with the requirement which is
necessary while passing an order under Section 319 Cr.P.C. He submits that in a most mechanical and casual manner Section 319 Cr.P.C. has been
invoked in this case. Thus, the same needs to be quashed.
Mr. N.P.Choudhary, learned counsel for O.P. No. 2 submits that there are eyewitnesses, who had seen the occurrence and involvement of these
petitioners. He submits that in the FIR 10 persons have been named as accused, but only 5 were charge sheeted, thus the court felt it necessary to
summon these petitioners to face trial by invoking the jurisdiction under Section 319 Cr.P.C.
After hearing the counsel for the parties and on going through the impugned orders, I find that in a most mechanical manner the provision of Section
319 Cr.P.C. has been invoked by the Court. It is necessary to quote the part of the order dated 20.01.2006, by which the court has concluded that it is
necessary to issue process by invoking Section 319 Cr. P.C., which is quoted herein below:-
20.01.2006 ......
Heard both sides and perused the record. After perusal of the record it appears that in FIR 10 accused persons are named while in charge-sheet 05
accused persons have been alleged in this case. From the evidence of witnesses it appears that some witnesses have named 10 accused persons. The
prosecution has also submitted for summoning five accused U/s 319 Cr.P.C. Learned Addl. P.P. has not objected the petition of the informant. In this
way there is evidence in this stage for summoning the accused persons namely Kuddus Mian, Alam Mian, Imtiaz Ansari, Hafeez Ansari and Mahfuj
Ansari and so the petition of the informant dated 26.11.2015 is allowed. Office clerk is directed to issue summon against aforesaid five accused
persons namely Kuddus Mian, Alam Mian, Imtiaz Ansari, Hafeez Ansari and Mahfuj Ansari.
In the impugned order nothing has been mentioned as to what are the overt act and what are the materials to implicate these petitioners as accused
under Section 319 Cr.P.C. Provision of Section 319 Cr. P.C. has to be resorted to in a very cautious manner and when there are sufficient materials
on record. The power though discretionary, but is extra ordinary in nature. It has to be exercised very sparingly and only in those cases where
circumstances so warrant. What are the circumstances warranting summoning the persons under Section 319 Cr.P.C., must also be reflected in the
order. This can be derived from the judgment of Hon'ble Supreme Court, passed in the case of ""Hardeep Singh- versus - State of Punjab & Others,
reported in (2014) 3 SCC 92"".
Section 319 Cr.P.C. cannot be resorted to by the Magistrate or the Sessions Judge merely that some persons may also be guilty of committing an
offence. There has to be strong and cogent evidence against the persons from the evidence, which has been led before the court then only the power
has to be exercised. Same cannot be exercised in casual manner. Strong evidence is required for summoning a person by invoking Section 319
Cr.P.C. The test that has to be applied is one which is more than a prima-facie case as is exercised at the time of framing of charge. In absence of
such satisfaction, the court should refrain from exercising power under Section 319 Cr.P.C. Merely mentioning that it appears from the evidence that
some person not being made accused, has also committed offence, is not the correct approach and cannot be a ground for summoning a person under
Section 319 Cr.P.C.
From the impugned order, I find that the court solely on the ground that in the FIR 10 accused persons have been named, whereas in the charge sheet
only 05 persons have been made accused and some witnesses have stated the names of 10 persons, have summoned these petitioners. This is not the
mandate of law. The court below has completely misdirected himself while passing the impugned order. The court had to deal with the strong and
cogent evidence which is on record to summon the persons under Section 319 Cr.P.C.
Considering the aforesaid provision of law, since the impugned order is absolutely not in consonance with the law and is non-speaking and cryptic, I
am inclined to allow this application.
Thus, this criminal miscellaneous petition is allowed. The Impugned order dated 20.01.2006 is hereby set aside. The matter is remitted to the court
below to pass a fresh order in accordance with law considering the material, which has surfaced against each of the petitioners for summoning them
under Section 319 Cr. P.C.
I.A. No. 7544 of 2019 also stands disposed of.