Samir Kumar Sinha vs State of Jharkhand and Others

Hari Shankar Prasad, J.—This writ application under Article 227 of the Constitution of India has been filed for issuing a direction upon the respondent No. 3 u/s 319 of Cr PC to face the trial along with all other accused persons and also to summon the Secretary of Belabagan Puja Samiti, respondent No. 4 u/s 311, Cr PC which is necessary for the ends of justice.

Facts leading to the filing of this writ application are that the petitioner gave a fardbeyan before the police, on the basis of which Deoghar PS Case No. 239/97 under Sections 302/34, IPC was registered and the IO, after investigation, submitted charge-sheet against the accused persons. After registration of the case, police took up investigation by submitting charge-sheet against the persons, on the basis of which cognizance was taken and later on order of commitment was passed and the case was transferred to the Court of Sessions from where the case was registered and then case was transferred to the Court of 3rd Additional District and Sessions Judge, Deoghar. There were 11 witnesses named in the charge-sheet and out of them 9 witnesses were examined in the case. It is also submitted that during the trial, witnesses particularly PWs 1, 8 and 9 made out a clear cut case of criminal conspiracy hatched by Chandra Bhanu Sao to commit the crime of taking away the life of a youth. The witnesses clearly stated the conspiracy hatched up by this respondent No. 3 and also threats were extended by this respondent No. 3 on previous occasions and on that basis a petition was filed for summoning respondent No. 3 u/s 319, Cr PC to face trial but the learned trial Court transferred his jurisdiction by passing order dated 24.1.2000 whereby the prayer of the petitioner was rejected. Further prayer of the petitioner was u/s 311, Cr PC to summon Pradeep Kumar Singh, Secretary of Belagablan Puja Samiti, Deoghar as a witness on the ground that witnesses have deposed that there was some dispute between the family members of Chandra Bhanu Sao and members of Puja Samiti but that prayer was also refused.

Learned counsel appearing for the petitioner submitted that there is ample material against the respondent No. 3 and 4 for summoning them as PWs 1,8 and 9 have clearly stated about their involvement this way or that way and, therefore, the order dated 24.1.2000 should be quashed and a direction be given to the trial Court to summon them to face trial. It was further submitted that trial Court has got immense power u/s 319, Cr PC to summon any person and in this connection reliance was placed upon Birendra Singh and Others Vs. State and Another, , wherein it has been held that trial Court is not precluded from exercising its power u/s 319, Cr PC, when some material on record is available against them although, magistrate has got no such power but sessions Court has got power in course of trial to summon a person u/s 319, Cr PC. It was further pointed out that though the revision filed by the State and one of the accused has been dismissed but in spite of that writ application is maintainable in view of the fact that the alternative remedy is available but not availed an in this connection reliance was placed upon 1998 (1) ECC 63 . It was also pointed out that even an accused is entitled to file a writ application for summoning other persons against whom evidence in course of trial has come and there are allegations against them in the case.

On the other hand, learned counsel appearing for the respondents, has submitted that earlier a revision application was preferred by the State of Bihar now Jharkhand and also by accused Munna Singh and also a revision was preferred by the State of Jharkhand through the Deputy Commissioner, Deogarh and all those revision applications have been dismissed after an elaborate order was passed by a Bench of this Court and, therefore, a writ application on the same point is not maintainable.

It was pointed out on behalf of the learned counsel for the petitioner that revisional Court has got limited jurisdiction, and under that limited jurisdiction, evidence of witnesses is not examined in a writ application or in an appeal evidence of witnesses recorded at trial, is discussed at every aspect and after examination of evidence of witnesses, order is passed and, therefore, order which is passed, is based on much more material than the order passed under limited revisional jurisdiction and in this case, PW 1, PW 8 and PW 9 have clearly stated about involvement of respondent No. 3.

Learned counsel for the respondents further submitted that the learned trial Court has found that there is no material prima facie to summon the respondent Nos. 3 and 4 for their statements u/s 319, Cr PC. It was further submitted that general tendency of the accused cannot be proved and it is difficult to prove that respondent No. 3 hatched up conspiracy and instigated the accused person to commit occurrence. In this connection, reliance was placed upon Lakshmandas Chaganlal Bhatia and Others Vs. The State,

Another plea that was taken is that since revision filed by the State as well as one of the accused and Deputy Commissioner against the order for setting aside the impugned order dated 24.1.2000 and for summoning the respondents, have been rejected, therefore, on the same set of facts and for same purpose, this writ application will not lie. In this connection, reliance was placed upon Masud Khan Vs. State of Uttar Pradesh, In this connection, reliance was also placed upon Bhanu Kumar Jain Vs. Archana Kumar and Another,

On perusal of materials on record and after hearing submissions of the parties, it transpires that altogether nine witnesses have been examined and at this stage, summoning of respondent No. 3 will again put the trial to the stage from where it has started and practically it will be de novo trial and there will be delay in the disposal of the case. Further, the evidence hatching up conspiracy is a weak type of evidence. It is true that accused is also entitled to file such writ application and stage is very material because another co-accused has filed a revision application with two other revision applications filed on behalf of other persons which was, after good deal of argument, dismissed by detailed order. Now, the stage is such that one party had already made argument in the case and the case is at the fag end of disposal and such petition cannot be allowed at this stage because it will cause de novo trial of the case meaning thereby that there will be a lot of delay and, therefore, this petition should not be allowed in the interest of justice and it is accordingly dismissed.