PARMANAND JAYASWAL Vs. STATE OF BIHAR

JUDGEMENT

(1.) 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 CR. 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 alongwith other accused persons under Section 319 of the Cr.P.C. Heard counsel for the parties.

(2.) 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 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 alongwith one Awadhesh Lal Kam 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 Kam are dead now.

(3.) 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 were accused in the case and not coming in the expression "not being the accused". Section 319 Cr.P.C. runs as follows:-