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Judgment
S.N. Pathak, J.—This revision is directed against the order dated 2.8.2001 whereby the revisionist who are females were summoned to face trial in a case instituted on the complaint of Md. Nayeem.
On the complaint instituted by Md. Nayeem there was an enquiry u/s 202 Code of Criminal Procedure and some of the accused named in the complaint petition minus the revisionists were summoned to face trial. However, during the course of trial the witnesses were examined and then the Magistrate exercising his power u/s 319 Code of Criminal Procedure summoned the revisionists to face trial.
It was submitted that when initially the Magistrate did not think it proper to summon the revisionists and there was no evidence of overt acts committed by them, it was wrong on the part of the Magistrate to summon the revisionists. In this connection, the evidence of the complainant, Md. Nayeem, (P.W. 6) was referred to. I find that the complainant in his chief at paragraph 1 said that he had filed the case against Mokhtar, Ramjan, Manjur, Mahtab and the revisionists, Rojni, Sabrun, Sahela and Ashma. This is at paragraph 2. Then at paragraph 5 he said that when he reached Stop mor accused persons surrounded him and assaulted him. He did not refer to abuses showered by the accused much less the revisionists who are all females. So far the assault part is concerned, there is omnibus allegation that all the accused assaulted him. Of course, some of the witnesses examined said that the female revisionists had also surrounded the complainant at Stop more and assaulted him. But now the question is whether the females who were earlier let off by the cognizance Magistrate had participated in the alleged occurrence at Stop more. The case of the complainant was that he had left his house and was going to Aurangabad to attend his mother who was undergoing treatment in the hospital. When he reached near the Bus stand mor he was surrounded by the accused persons and was assaulted and abused. Therefore, cognizance was taken under Sections 323 and 504. The time of occurrence was 6 P.M. The village of the complainant and the accused is Rosool Bagh as per the address of the complainant and the accused given in the complaint petition. The P.O. is at a distance of 400 houses away from the village of the complainant. In such a circumstance, it does not appear to be probable that females of the village along with male members of their house will gather at Bus stop mor at a place intervened by near about 400 houses from their house. Moreover, it is also a bit improbable that the complainant who was going to Aurangabad to attend his ailing mother will be required to be subjected to assault by four male members aided by four females. If the complainant was going to attend his mother alone, four male persons were sufficient to assault him and there was no necessity for their being aided and abetted by four female persons to assault one person. I have already stated above that it is improbable that female members of the village would go to a lonely place at Bus stand or the P.O. at 6 P.M. of a particular day.
The power u/s 319 Code of Criminal Procedure would normally be exercised with great care and circumspection and almost sparingly on the basis of evidence sufficient to put some more persons on trial. The evidence at the stage of 319 Code of Criminal Procedure should almost be similar to the evidence at the stage of cognizance which impels the Magistrate to put some persons on trial. Section 204 Code of Criminal Procedure has used the words "sufficient grounds for proceeding" against some persons to summon them to face trial. So, at the stage of Section 319 Code of Criminal Procedure also there should be sufficient ground for proceeding afforded by evidence adduced during the trial, which would spur the Magistrate or the trial Court to summon additional accused. In the instant case, it has already been stated above that the complainant''s evidence in this case was almost deficient because at paragraph 2 the complainant had said that he was filing case against the persons whom he named including the revisionists and at paragraph 5 he said that all accused assaulted him. So, there was omnibus allegation against the female revisionists. Moreover, part of the occurrence regarding abuses was absent on the statement of the complainant. When the complainant himself was not very much clear about the participation of the female revisionists in the alleged occurrence, I am of the opinion that the evidence in this connection did not afford sufficient ground for proceeding against the revisionists. Probabilities regarding the participation of any of the accused of the case is also part of the evidence which would afford "sufficient ground for proceeding." I have already stated above regarding the probabilities of the accused-revisionists to participate in the alleged occurrence.
The above discussions therefore, show that participation of the revisionists in the alleged occurrence was a remote probability and the evidence of the complainant itself was not affording sufficient ground for proceeding against the revisionists. The Magistrate or the trial Court while exercising jurisdiction u/s 319 Code of Criminal Procedure must not use his power in a routine fashion simply because some witnesses named some persons in a sweeping statement regarding their participation in the particular occurrence. The Court cannot make itself an instrument in the hands of scrupulous persons to subserve their vested interest in feeding fad their grudge on malice by prosecuting even female members of a house just for a sadistic pleasure. The Court must, therefore, be wary using the power u/s 319 Code of Criminal Procedure so that justice may be done to everybody and the power must not be misused.
In the result, I am of the opinion that the order of the trial Court requires interference by this Court. This revision is, accordingly, allowed and the impugned order is set aside.