PRADEEP KUMAR @ PINTOO SHARMA Vs. STATE OF BIHAR

JUDGEMENT

(1.) Heard learned counsel for the petitioner and learned A.P.P. for the State. The present revision application is directed against the order dated 20.8.2011 passed in S.Tr. No. 44 of 2005/27 of 2010 arising out of Paras-bigha P.S. Case No. 158 of 1996 by the Additional Sessions Judge, F.T.C.-V, Jehanabad by which the petition of the prosecution under Section 319 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the 'Code') has been allowed.

(2.) Learned counsel for the petitioner submits that the said order is erroneous both on facts as well as in law. The petitioner alongwith another was accused in the said case and upon enquiry the police has submitted charge-sheet only against one accused person. As no protest petition was filed, the Court concerned took cognizance only against the other co-accused whereas the petitioner was not proceeded against. Thereafter, charges were framed and trial also started. On 22.7.2011, after six witnesses had been examined on behalf of prosecution, the petition came to be filed by the prosecution under Section 319 of the Code for issuing summons against the petitioner to face trial in the present case. The Court below by the impugned order has allowed the said petition.

(3.) Learned counsel for the petitioner submits that the petitioner, who was the named accused in the initial F.I.R., could not have been summoned under Section 319 of the Code since the same does not deal with a person who was already an accused in a case. For this proposition he has relied upon the decision of the Hon'ble Apex Court in the case of Sohan Lal & Ors. vs. State of Rajasthan, 1990 AIR(SC) 2158, the relevant being at paragraphs no. 14, 15, 30 and 33. Learned counsel further submits that the case having commenced long time back, that is, in the year 1996 and order passed under Section 319 only in the year 2011, that is, after more than 15 years, was not proper as has been held by a Bench of this Court in the case do Gopal Krishna vs. State of Bihar, 1987 CrLJ 1487, the relevant being at paragraphs no. 9 to 12. Learned counsel also submits that the Court below while allowing the petition on 20.8.2011 has also relied upon the statement made by the witnesses during investigation and this according to him is impermissible in law and cannot be relied upon. For the said proposition he relied upon a decision rendered in the case of Hukamaram & Ors. vs. State of Rajasthan, 1982 CrLJ 2341.