ROHIT MAHTO Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) THIS application is directed against the order dated 29.2.2012 passed by learned Sessions Judge II, Giridih in connection with Bengabad P.S case no.140 of 2007 whereby and whereunder this petitioner has been summoned to face trial in which some of the accused persons have already been found guilty for an offence under Section 304 of the Indian Penal Code.

(2.) LEARNED counsel appearing for the petitioner submits that an F.I.R was lodged against this petitioner as well as four other accused persons alleging therein that they all killed Ashok Kumar Verma. The matter was taken up for investigation but the Investigating Officer did not find any culpability on the part of this petitioner whereas allegations were found to be true against other accused persons and therefore, while submitting charge sheet against other accused persons, this petitioner was never sent up for trial. Thereupon cognizance of the offence was taken against the accused persons against whom charge sheet had been submitted and they were put on trial. The prosecution led witnesses, upon which the court did find them guilty for an offence under Section 304 of the Indian Penal Code and thereby they were convicted. While recording the order of conviction, the court also observed that same evidence is also against this petitioner but since the petitioner was not facing trial, the order of conviction cannot be recorded. Subsequently, the case was ordered to be split up and then summon was ordered to be issued under Section 319 of the Code of Criminal Procedure against the petitioner to face trial, though earlier when the final form had been submitted by the police, the informant had filed protest petition. That was dismissed and in such situation, summoning the accused to face trial under Section 319 would be quite illegal and therefore, the order impugned is fit to be set aside.

(3.) IT is well settled principle that if there appears to be cogent evidence which satisfies the Court that the other accused who had not been arrayed as an accused has also committed the crime can be summoned for trying him along with other accused by virtue of provision as contained in Section 319 of the Code of Criminal Procedure which reads as follows: