IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.41500 of 2008
1. Parmanand Jayaswal
2. Sudhir Prasad Singh
----------------- Petitioners
Versus
1. State Of Bihar
2. Ratan Purvey
--------------- Opposite Parties
----------
3. 11-11-2011 This is an application for quashing the
order dated 14.7.2006 passed by Sri R.K.Singh,
Judicial Magistrate, 1st Class, Rosera,
Samastipur in C.R. 235 of 2004, T.R. 109 of
2008 by which he arrayed the petitioners as
accused persons in this case and they have been
put on trial along with other accused persons
under section 319 of the Cr.P.C.
Heard counsel for the parties.
Brief fact of the Complaint Case is
that complainant and accused persons are sons
of late Ramotar Purbey who had five sons. For
accused no.1 it is said that he fraudulently
succeeded to get a gift deed executed by late
Ramotar Purbey in favour of his wife (accused
no.2) in conspiracy with petitioners and one
Awadhesh Lal Karn (accused no.5). After
examination of complainant on solemn
affirmation and his witnesses in enquiry
cognizance was taken in the case against
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accused nos. 1 and 2 only against whom summons
were issued, trial commenced, witnesses
examined in the case before charge. In that
course a petition was filed on behalf of
complainant-opposite party no.2 on 27.4.2005
under section 319 Cr.P.C. before the trial
court. Same was opposed on behalf of defence
but petition filed on behalf of complainant-
opposite party no.2 is allowed by order dated
27.4.2005 arraying petitioners along with one
Awadhesh Lal Karn as accused in the case and
summons are issued. It is made clear that
accused no.1 Shambhunath Purbey and accused
no.5 Awadhesh Lal Karn are dead now.
Submission advanced by counsel appearing on behalf of petitioners is that
under section 319 persons “not being accused in
the case” can only be summoned while in instant
case petitioners were named in the complaint
petition, in full-fledged inquiry no liability
could be fixed upon them after considering the
statement of complainant-opposite party no.2
and his witnesses examined in course of
enquiry. His further submission is that once
they (petitioners) are made accused in
complaint petition it would amount that they
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were accused in the case and not coming in the
expression „not being the accused‟. Section 319
Cr.P.C. runs as follows:
“319. Power to proceed against
other persons appearing to be guilty
of offence.-(1) Where, in the course
of any inquiry into, or trial of, an
offence, it appears from the evidence
that any person not being the accused
has committed any offence for which
such person could be tried together
with the accused, the Court may
proceed against such person for the
offence which he appears to have
committed.”
It is admitted to the parties that the
only persons “not being the accused” can be
summoned under section 319 Cr.P.C. Further
admission is that till submission of charge
sheet no person can be said accused in Police
case, controversy is in cases filed on
complainant petition.
In Complaint Case as appeared in instant case, case was made over to the
concerned Magistrate for inquiry under section
192 Cr.P.C. arraying petitioners also accused
but no summons or warrant was issued against
these petitioners and section 319 Cr.P.C. is
clear enough that person or persons against
whom relief is sought for proceeding their
trial with accused facing trial, in inquiry or
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trial should not be accused, so there appears
difference in between the cases filed as
Police Case and cases on complaint. In
complaint cases if some one is made accused in
complaint petition and on inquiry as in the
instant case no summons is issued “not being
the accused” comes to an end. This view finds
support from the cases reported in AIR 1990
Supreme Court 2158 (Sohan Lal & Ors. Vs State
of Rajasthan) and 2004(1) PCCR 21 (Rama Devi
and anr. vs. The State of Bihar and anr.). In
clear words it comes that petitioners were
made accused against whom inquiry was
conducted and no summons was issued amounts
equivalent to their discharge, so they cannot
be summoned under section 319 Cr.P.C.
Thus, the application for quashing is
allowed and the impugned order dated 14.7.2006
passed in C.R.235 of 2004, T.R.109 of 2008 is
hereby quashed.
( Mandhata Singh, J.)
AI/ AFR