SUBHASH YADAV Vs. STATE OF BIHAR & ANR.

JUDGEMENT

(1.) THE petitioner, one of the F.I.R. named accused of Vijaipur P.S. Case No. 41 of 1991 giving rise to Sessions Trial No. 47 of 2000, who was not charge -sheeted and was discharged by order dated 15.7.1998 of the learned Chief Judicial Magistrate, Gopalganj, while accepting the charge -sheet, is now aggrieved by order dated 1.10.2005 passed by the learned 2nd Additional Sessions Judge, Gopalganj, in Sessions Trial No. 47 of 2000 whereunder the petitioner alongwith five others have been summoned under Section 319 Cr.P.C. to face trial alongwith those already sent up. On the basis of a written report submitted by one Chattu Rajbhar in respect of the kidnapping and murder of his brother taking place on 12.6.1991, Vijaipur P.S. Case No. 41 of 1991 was registered under Sections 364, 302, 201/34 I.P.C. and 27 Arms Act against the nine persons named therein including the petitioner. It appears that the police after due investigation did not find the complicity of the petitioner in the crime and in the charge -sheet submitted on 21.2.1992 the petitioner alongwith five others were shown as not sent up and even the learned Chief Judicial Magistrate accepted the charge sheet on 15.7.1998 in toto and without much ado.

(2.) HOWEVER , the controversy arose when after a lapse of thirteen years on the basis of a petition filed by the prosecution under Section 319 Cr.P.C. on 27.9.2005, the learned Additional Sessions Judge, Gopalganj, in seisin of the Sessions Trial arising out of Vijaipur P.S. Case No. 41 of 1991 summoned the petitioner by his order dated 1.10.2005 to face the trial alongwith those already sent up and facing the trial.

(3.) IT is by now well settled that the word "evidence" in Section 319 Cr.P.C. means evidence on record and the power under the section cannot be exercised with reference to police papers.