NILAM PANDEY Vs. STATE OF BIHAR

JUDGEMENT

(1.) On the basis of a report given by opposite party No. 2, Pirbahere P.S. Case No. 191 of 1993 was registered under Sections 341, 323 and 379/34 of the Indian Penal Code against the other accused persons. Police after investigation submitted charge-sheet against other accused persons but did not forward the petitioner for trial. Ultimately, charge- sheeted accused persons were put on trial. During the trial PWs 2 and 3, namely Ashok Kumar Pandey, the informant, and his wife Sunita Devi were examined on 19.5.1994 and 30.5.1994. Doctor PW 4 was examined on 19.8.1994. The statement of the accused persons under Sections 313 of the Code of Criminal Procedure was recorded on 26.3.1996. Thereafter an application was filed before the learned Magistrate to summon the petitioner to face trial along with other accused persons under Section 319 of the Code of Criminal Procedure. The learned Magistrate by order dated 22.4.1996 rejected the said application. Informant aggrieved by the same preferred revision against the said order and the revisional Court by order dated 31.4.1998 set aside the order of the learned Magistrate and remitted the case to him for reconsideration. Thereafter by the impugned order dated 9.12.1998 passed by the Sub-Divisional Judicial Magistrate in G.R. Case No. 2998 of 1993/Tr. No. 113/1201 of 1998, he directed for issuance of summons against the present petitioner to face trial along with other accused persons. Aggrieved by the same petitioner preferred criminal revision No. 160 of 1999 and the Ist Additional Sessions Judge, Patna by order dated 12th of October, 2001 dismissed the revision application. Aggrieved by the order of the learned Magistrate summoning the petitioner under Section 319 of the Code of Criminal Procedure and the order of the revisional Court dismissing the revision petitioner has preferred this application. Mr. Chittranjan Sinha, Senior advocate appearing on behalf of the petitioner submits that exercise of power by the learned Magistrate under Section 319 of the Code of Criminal Procedure at such a belated stage was illegal and on this ground alone the orders impugned are fit to be quashed. Mr. Sanjiv Ranjan Gupta appearing on behalf of opposite parties No. 2 and 3 submits that, on the basis of the evidence collected during the course of trial, the learned Magistrate was satisfied that the petitioner was one of the accused who had committed the offence and, as such, rightly exercised his power under Section 319 of the Code of Criminal Procedure.

(2.) Having appreciated the rival submissions, I find substance in the submission of Sri Sinha. Evidence of PWs 2 and 3 which has formed the basis for summoning the petitioner was recorded on 19.5.1994 and 30th of May, 1994 respectively. In fact, the evidence of other witnesses were recorded on 26.3.1996 and, in fact, the statement of the accused facing trial was recorded on 26.3.1996. Only thereafter the application to summon the petitioner under Section 319 of the code of Criminal Procedure was filed on 29.3.1996. There is nothing on the record to suggest as to why there was delay in filing the application under Section 319 of the Code of Criminal Procedure. In my opinion, exercise of power at such a belated stage was absolutely uncalled for. The view which, I have taken finds support from the judgment of the Supreme Court in the case of Michael Machado and others V/s. CBI, 2000 3 SCC 262.

(3.) In the result, the application is allowed. The impugned orders are quashed.