MD TAZUDDIN & ORS Vs. STATE OF BIHAR

JUDGEMENT

(1.) This is an application under Section 482 of the Code of Criminal Procedure for quashing the order dated 3.8.2004 passed by the learned Additional Sessions Judge (F.T.C. to V), Purnea in ST No. 440/2002, (State v/s. Reyaz) under which he has summoned the four petitioners, namely, Md. Tazuddin, Md. Sajjad, Md. Sayed, Nand Lal Sah @ Jhubra and others as additional accused under the provisions of Section 319 of the Code of Criminal Procedure (hereinafter referred to as the 'Code').

(2.) One Sheikh Hanif lodged a report at Amour PS district Purnea against 17 persons named therein for taking action under Sections 302/34, 120-B of the Indian Penal Code. The case was registered as Amour PS Case No. 39/2001. The police after investigation submitted charge-sheet against only one person, namely, accused Reyaz keeping the investigation pending as regards Mahboob Alam and Jabul and showing the remaining 14 persons named as accused in the FIR as not sent up for trial, holding them innocent. On the basis of the charge-sheet, by the order dated 7.1.2002, the learned Chief Judicial Magistrate, Purnea took cognizance of the offence against the accused Reyaz and dropped the proceeding against the above 14 persons. The informant preferred revision against the order of the Chief Judicial Magistrate dropping proceeding of the above 14 offenders, but since the trial of the accused Reyaz had already commenced in the Sessions Court the informant did not press the matter in revision as he had opportunity to redress his grievance in the sessions case on the basis of evidence adduced. The revision thus, was dismissed by the order dated 28.8.2002. In the meantime on 30.6.2004 a petidon was filed by the prosecution in the Court of Additional Sessions Judge, where the trial was pending for proceeding against 6 persons named therein including the petitioners on the basis of evidence adduced in Court. The Additional Sessions Judge after considering the evidence of the witnesses examined, found sufficient material showing involvement of the above persons. Accordingly, by the impugned order, he allowed the prayer of the prosecution to add 6 accused persons including the petitioners as accused to face trial alongwith the accused Reyaz but as all the witnesses including the doctor had already been examined and only the IO was to be examined and as the accused Reyaz was in custody, he ordered to open a separate record for the newly added accused persons and issued summons against them.

(3.) Learned counsel for the petitioners submitted that as the petitioners were accused in the case being named in the FIR they go beyond the ambit of Section 319 of the Code. He further submitted that as the petitioners were discharged by the learned Chief Judicial Magistrate, being dropped from further proceeding after submission of final form, and the discharge order had been affirmed in revision and attained finality, they cannot be subsequently summoned under Section 319 of the Code. In support of his contentions he relied on the decision of the Hon'ble Supreme Court in the case of Sohan Lal and Others V/s. State of Rajasthan, 1990 AIR(SC) 2158 and Single Bench decision of this Court in the case of Makhan Paswan and another V/s. State of Bihar, passed in Cr. Misc. No. 11801 of 2004 in which an order under Section 319 of the Code was quashed on the basis of the above decision of the Supreme Court.