RAMA DEVI Vs. STATE OF BIHAR

JUDGEMENT

(1.) WHETHER or not, a person who has been arrayed as an accused in a petition of complaint but not summoned to face trial under section 204 of the Code of Criminal Procedure can later on be tried along with other accused persons in exercise of the power under section 319 of the Code of Criminal Procedure (hereinafter referred to as the Code) is the question which falls for determination in the present case.

(2.) FACTS lie in a narrow compass. Opposite party no.2 Shambhu Prasad gave a report to the police alleging commission of offence under sections 498 -A, 304 -B and 201/34 the Indian Penal Code (for short IPC). On that basis Nokha P.S.Case No. 129 of 1998 dated 24.9.1998 was registered against six persons including the petitioners Rama Devi and Rena Kumari. Police after investigation submitted report as contemplated under section 173 of the Code dated 14.12.1998 and found the allegation to be mistake of fact and did not forward any of the accused persons for trial. The report was laid before the Judicial Magistrate, 1st Class, Sasaram, who by his order dated 17.5.1999 accepted the same. In the meanwhile opposite party no.2 filed a protest petition on 15.12.1998, which was treated as a petition of complaint and in that, besides the petitioners, four other persons were also arrayed as accused. The learned Magistrate held an enquiry as contemplated under section 202 of the Code and ultimately by order dated 19.8.1999 took cognizance of the offence under sections 498 -A, 304 -B and 201 of the IPC and 3/4 of the Dowry Prohibition Act and directed for issuance of summons against four accused persons excluding the two petitioners. Case was ultimately committed to the Court of Session. In the trial so held, witnesses were examined and thereafter an application was filed before the trial Court to summon the two petitioners to be put on trial along with four other accused persons and for that purpose the trial Judge was requested to exercise its power under section 319 of the Code. The learned Judge finding that the three prosecution witnesses examined on behalf of the prosecution have categorically stated about the involvement of the two petitioners herein directed for issuance of summons against them.

(3.) YET another decision on which learned counsel has placed reliance is the judgment of this Court in the case of Uma Shanker Sahay vrs. State of Bihar (1998 Criminal Law Journal 2807) and my attention has been drawn to paragraph 17 of the judgment, which reads thus: - "17.I have already analysed above the provisions of Section 319 of the Code. A perusal of this section clearly shows that a person can be proceeded against under its provision if he figures as "any person not being an accused". If, however, the person concerned had figured as an accused from the very beginning of the case on account of the fact that he was named as an accused in the complaint petition itself, can it be said that he fits in the description given in section 319 of the Code namely "any person not being the accused"? Obviously he was an accused from the very beginning of the institution of the case and as pointed out above the procedure for holding enquiry under Section 202 of the Code clearly describes the persons being proceeded against as an accused since the cognizance against him had already been taken. An such under the facts and circumstances of this case it cannot be said that the present petitioner can be described as "any person not being an accused" so as to warrant to application of Section 319 of the Code."