SHAMIM AHMAD KHAN Vs. STATE OF BIHAR

JUDGEMENT

(1.) The true amplitude of the power of the Court under Sec. 319 of the Criminal P.C., 1973, to proceed against a person for being tried together with others, for an offence which he appears to have committed from the evidence recorded in the course of the inquiry or trial, is the significant question necessitating this reference to the Division Bench.

(2.) On the basis of a fardbeyan by one Yusuf Khan dt. 15th Apr., 1983, a case under S. 396 of the Penal Code was registered at Awas Police Station, in the district of Gaya. The name of the petitioner, Dr. Shamim Ahmad Khan alias Samman Khan alias Shamim Ahmad, did not find place in the first information report, but the informant and the witnesses named him as the person behind the crime before the Investigating Officer immediately thereafter. The Investigating Officer, on the completion of the investigation, found sufficient evidence against the petitioner and one Niru Pasi (who was even named in the F.I.R.), but under the orders of the superior officer, the names of the petitioner and the said Niru Pasi were not placed in the charge-sheet. After cognizance by the Magistrate, the case was committed to the Court of Session and came up for trial before the 4th Additional Sessions Judge, Gaya. During the course of the said trial, P. W. 1 Ganzaffaer Ali Khan, P.W. 2 Zahid Khan and P.W. 3 Yusuf Khan expressly named the petitioner and Niru Pasi as accused in their evidence. A petition under S. 319 of the Code was preferred on behalf of the prosecution seeking the summoning of the petitioner and Niru Pasi for being tried together with the other accused persons. The learned Additional Sessions Judge vide the impugned order of 6th July, 1985, noticed that whilst Niru Pasi was named in the F.I.R., both he and the petitioner were immediately named thereafter by the informant and other witnesses as being directly implicated in the crime. Further investigation also revealed their complicity. However, without recording any express reason, the Deputy Superintendent of Police directed the Investigating Officer to submit charge-sheet against the other persons, but showed the petitioner and Niru Pasi as merely suspects in the case. Consequently, these two persons were not sent up for the trial. The learned Additional Sessions Judge further noticed that three witnesses in their evidence on oath had squarely implicated the petitioner. For these reasons he directed the summoning of the petitioner and Niru Pasi to face the trial in this case along with the other accused persons being tried already under Sec. 319 of the Code.

(3.) Aggrieved by the above order, the present petition for quashing the same has been preferred. It came up for admission before my learned brother R.N. Prasad, J., sitting singly and before him it was strenuously argued that the impugned order of the learned Additional Sessions Judge was beyond the scope of S. 319 of the Code. It was submitted that the petitioner's name did not figure in the F.I.R. and the informant and the two other witnesses did not take up the stand before the Investigating agency that they had identified him in course of the dacoity, as is the case in their evidence in Court now. Noticing that the question of the scope of S. 319 of the Code is of considerable importance and deserves an authoritative decision, the matter was referred to the Division Bench.