SHATRUDHAN MAHTO Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE petitioners by filing this petition under Sec. 482 of the Code of Criminal Procedure, 1973 has prayed for quashing the order dated 28.11.2005 passed by the Additional Sessions Judge -cum - Fast Track Court No. IV, Motihari in Sessions Trial No. 150 of 2005 whereby and whereunder he has allowed the petition under Sec. 319 of the Code of Criminal Procedure to add the petitioners as accused and has ordered to issue summons against them. Heard learned Counsel for both the parties and learned A.P.P. appearing for the State.

(2.) The contention of the learned Counsel for the petitioners is that though the petitioners were named in the first information report but the police during investigation did not find material against them and so the petitioners were not sent up for trial by the police. The police report was also accepted by the Magistrate and cognizance was taken against the chargesheeted accused. Therefore, when the police has already found the case 'not true ' as against the petitioners and the said report was accepted by the cognizance taking Magistrate also, for summoning the petitioners under Sec. 319 Cr.P.C. there should have been some strong materials but the court below only on the basis of the deposition of three witnesses who are highly interested witnesses of the case has put them on trial. Hence, the impugned order is not fit to be sustained. In support of his submissions he relied on the judgment of the Patna High Court in 2006 1. PLJR, 502 in which it has been held by this Court that there should be some compelling reasons for putting the petitioners on trial.

(3.) LEARNED Counsel for the Opposite party opposed the above submissions and contended that even if the police submitted final report as the case 'not true ' against these petitioners, the court below was very much empowered to summon the petitioners and in support of his submissions he relied on the judgment of the apex Court reported in 2007 7 SCC 378 in which it has been held that the accused persons who are not charge sheeted can be summoned under Sec. 319 Cr.P.P.C. Thus, there is no legal impediment in this case in summoning the accused petitioners. Of course the power under Sec. 319 Cr.P.C. is extraordinary and should be sparingly used and in the case relied on by the learned Counsel for the petitioners, the Sessions Judge has refused to exercise and this Court had approved it, but in that case the witnesses were hearsay whereas in this case the three witnesses are eye witnesses and one of them appears to be injured. Hence, the decision relied on by the learned Counsel is not applicable in this case and as the witnesses claiming to be the eye witnesses have named the petitioners being involved in the case, the learned Additional Sessions Judge was justified in adding them as accused. Mere interestedness of the witnesses is also no ground to set aside the order. It would be seen during the trial whether they are reliable or not.