Raghunath Yadav @ Raghunath Ahir and Another vs The State of Bihar

I.P. Singh, J.—This application has been filed for quashing the order dated 23.12.2005 passed by the learned A.D.J. (F.T.C.) 1st, Bhojpur (Ara) arising out of Session Trial No. 55/ 2003 by which the learned Court below has issued summons/warrant of arrest against the petitioners u/s 319 of the Code of Criminal procedure (in short ''the Code'') during the pendency of police investigation against the petitioners. It has been submitted that the Investigating Officer has neither submitted final report nor chargesheet in this case and the case is under Police investigation. As such, the learned Court below has no jurisdiction to proceed u/s 319 of the Code during the pendency of investigation against the named accused persons.

It has also been submitted that the chargesheet has been submitted by the I.O. vide charge sheet No. 4/95 against one accused Deo Nath Bind and cognizance has been taken against him.

It has also been submitted that the entire proceeding of the Court below has been stayed awaiting the final form against the petitioners.

In this connection, the learned counsel for the petitioners has relied on a decision reported in Sambhu Singh Vs. The State of Bihar and Braj Kishore Sah, . But the facts of this case is different from the facts of the aforesaid decision, as such the aforesaid decision is not helpful to the petitioners.

On the other hand, learned counsel for the State has submitted that a person can be summoned u/s 319 of the Code to face the trial if during course of trial his name has also figured as an accused but there is a condition for application of this Section that he is not as an accused in the case from before. In the present case the petitioners were named in the F.I.R. and since no charge sheet has been submitted against him, as such, cannot be termed as an accused.

In support of his contention he has drawn my attention towards a decision reported in Pu Myllai Hlychho and Others Vs. State of Mizoram and Others, in which it was held that if chargesheet has not been submitted against a person he shall not be termed as an accused. It was further held that if the investigation against a person is still pending and police has not sent him up for trial it would hardly make any difference and he shall not be termed as an accused and he is very much in the ambit of Section 319 of the Code.

In the present case, since the investigation is still pending and no chargesheet has been submitted against the petitioner, he has rightly been summoned u/s 319 of the Code as not being the accused. I see no reason to interfere with the order impugned. Accordingly, this petition is dismissed.