JUDGMENT
Chandramauli Kr. Prasad, J.
1. This application has been filed for quashing the order dated 26.2.2004, passed by the 1st Additional Sessions Judge, Patna in Sessions Trial No. 127 of 2002, whereby the prayer made by the prosecution to arraign opposite party Nos. 3 to 10 to face trial alongwith other accused persons, has been rejected.
2. Short facts giving rise to the present application are that an unidentified dead body of a lady was found within the jurisdiction of Punpun Police Station. It gave rise to registration of Punpun P.S. case no. 45 of 2001 under Section 302/201 of the Indian Penal Code. Later on the dead body was found to be that of the daughter of the petitioner and the petitioner alleged torture and harassment to her on account of demand of dowry and her death, other than in the normal circumstance. The police investigated the case and submitted charge sheet against the husband of the deceased, who was ultimately committed to the Court of Sessions. By order dated 23.9.2002 passed in Sessions Trial No. 127 of 2002, charges were framed against the husband of the deceased under Sections 302/304-EJ and 498-A of the Indian Penal Code and 27 of the Arms Act. During his trial two witnesses were examined, who happen to be the brother and father of the deceased. According to the prosecution, their evidence show the involvement of opposite party Nos. 3 to 10 in the commission of the offence under Section 304B of the Indian Penal Code. Accordingly, prosecution filed an application to summon those accused in exercise of the power under Section 319 of the Code of Criminal Procedure. The learned Judge by the impugned order rejected the prayer of the prosecution.
3. Mr. Kundan Bahadur Singh, appearing on behalf of the petitioner, submits that while exercising the power under Section 319 of the Code of Criminal Procedure, the learned Judge exceeded in its jurisdiction by appraising the evidence, as if, he was finally deciding the case. He points out that at this stage, the learned Judge was only obliged to consider whether from the evidence it appears that any person not being the accused has committed any offence and he was not obliged to go into the great details, as has been done by him, while passing the impugned order and this itself vitiates his order.
4. In support of his submission, he has placed reliance on a judgment of the Supreme Court in the case of Ranjit Singh v. State of Punjab , and my attention has been drawn to paragraph 19 of the judgment which reads as follows :–
Thus, once the Sessions Court takes cognizance of the offence pursuant to the committal order the only other stage when the Court is empowered to add any other person to the arraign of the accused is after reaching evidence collection when powers under Section 319 of the Code can be invoked. We are unable to find any other power for the Sessions Court to permit addition of new person or persons to the arraign of the accused. Of Course it is not necessary for the Court to wait until the entire evidence is collected for exercising the said power.
5. Dr. Maya Nand Jha, Additional Public Prosecutor, appearing on behalf of the State for a moment did not challenge the jurisdiction of the trial Court to summon such accused persons who are not facing trial, in case during the trial evidence show their complicity but he enters a caveat and emphasizes that the power under Section 319 of the Code of Criminal Procedure cannot be exercised mechanically. He points out that the learned Judge taking into account the entire conspectus of the case has rejected the prayer of the prosecution which does not call for interference by this Court in the present application. Reliance has been placed on a decision of the Supreme Court in the case of Krishnappa v. State of Karnataka 2005 (1) PUR 50 (SC) and my attention has been drawn to the following passage from paragraph 9 of the judgment, which reads as follows :–
The Court, while examining an application under Section 319, Cr PC has also to bear in mind that there is no compelling duty on the Court to proceed against other persons. In nutshell, it means that for exercise of discretion under Section 319, Cr PC all relevant factors, including the one noticed above, have to be kept in view and an order is not required to be made mechanically merely on the ground that some evidence had come on record implicating the person sought to be added as an accused.
6. Having appreciated the rival submission, I do not find any substance in the submission of Mr. Singh. It is well settled that power to summon an accused is an extraordinary power conferred on the Court and requires to be used sparingly only if compelling reason exists. To summon other accused persons, not facing trial judicial exercise is called for keeping in mind the entire conspectus of the case, including the stage at which the trial has reached. Further power under Section 319 of the Code of Criminal Procedure cannot be exercised merely on the ground that some evidence has come on record implicating the person sought to be arraigned as an accused but the entire conspectus of the case has to be seen. Bearing in mind the aforesaid, when I proceed to examine the case in hand, I find that the observation made by the learned Judge while passing the impugned order is based on consideration of the entire conspectus of the case. The learned Judge has found that the witnesses examined are hear-say witnesses and have not claimed to be eye-witnesses of the torture and cruelty but claim knowledge torn the deceased herself. It also took into consideration the fact that the deceased was living in the house of the parents and the husband of the deceased who is facing trial was living separately from opposite party Nos. 3 to 10. The learned Judge were within his rights to consider the entire conspectus of the case and on doing so it came to the conclusion that the accused persons sought to be arraigned are not fit to be arraigned in exercise of the power under Section 319 of the Code of Criminal Procedure. I do not find any error in the same.
7. In the result, I do not find any merit in the application and it is dismissed accordingly.