Bhudeo Yadav vs State of Jharkhand and Another

Deoki Nandan Prasad, J.—Heard Counsels for the parties.

This is an application under Sections 397 and 401 of the Code of Criminal Procedure (hereinafter to be referred to as ''the Code'') against the order dated 3.7.2001 passed by the Sessions Judge, Deoghar, in Sessions Case No. 237 of 2000, whereby and whereunder, the learned Sessions Judge rejected the petition dated 30.1.2001 filed by the prosecution u/s 319 of the Code for summoning the accused-opposite party No. 2 (Rina Devi, sister-in-law of the deceased) to face the trial.

The learned Counsel appearing on behalf of the petitioner submitted at the very outset that P.Ws. 1 and 2 who were examined during the trial have specifically stated the name of opposite party No. 2 (Rina Devi) for torturing the deceased as indicated in paragraphs 3 and 2 respectively of their deposition. It is also submitted that the learned Court below committed error in rejecting the petition u/s 319 of the Code only on mere conjunctures by taking the view and collected the materials during the course of investigation which has got no value or merit when the trial begins and the witnesses start deposing.

Learned Counsel for the petitioner also relied upon the case of Nityanand Singh and Anr. v. State of Bihar, 2000 CC 1378 (Pat).

Section 319 of the Code says : "Where, in the course of any inquiry into, or trial of an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed."

In the instant case, the trial has already begun and the witnesses have also been examined P.Ws. 1 and 2 named Rina Devi as well for torturing the deceased. It was pointed out during the course of argument that though the name of opposite party No. 2 (Rina Devi) was mentioned in the First Information Report but the police has not submitted charge-sheet against her. There is no bar to summon the opposite party No. 2 (Rina Devi) u/s 319 of the Code even if she has not been sent up by the police when some evidence has been collected against her during trial for being tried together.

In this view of the matter, it appears that the learned Sessions Judge has committed error in rejecting the prayer of the prosecution of not summoning the opposite party No. 2 (Rina Devi) of which there is also material for facing trial.

Thus, I find merit in this revision application which is accordingly allowed and the order dated 3.7.2001 is set aside.