Chandradeep Prasad Shriwastava vs The State of Bihar and Another

Navin Sinha, J.—The prayer in the present application is to quash the order dated 15.12.2001 passed by the Sub Divisional Judicial Magistrate, Sasaram in G.R. Case no. 1422/94. By the impugned order the petitioner has been summoned to face trial in exercise of powers u/s 319 of the Code of Criminal Procedure. The petitioner was one of the named accused persons in G.R. Case no. 1422/94. After investigation a chargesheet was submitted against one of the accused and the petitioner and other accused were not sent up for trial. By an order dated 27.7.95 the petitioner along with other accused who were not sent up for trial were discharged from the case by recording that they had not been sent up for trial. This order was passed at the stage simultaneously while taking cognizance against the charge-sheeted accused.

The trial having commenced evidence was laid on behalf of the prosecution by the Chief Manager of the State Bank (PW 1), the informant (PW 2) and the Investigating Officer (PW 3). On the basis of the evidence led before the Court during trial, the complicity of the petitioner in the commission of the occurrence is said to have surfaced. This led to an application on behalf of the prosecution u/s 319 Cr.P.C. that the petitioner be summoned to face trial. This was allowed by the impugned order dated 15.12.2001 and summons were issued to the petitioner to face trial. It is this order which is assailed in the present application.

The brief facts necessary for the purpose of the present case are recorded hereinafter. An FIR was lodged on 19.8.94 by the informant-Opposite party no. 2 alleging that a sum of Rs. 80,000/- had been fraudulently withdrawn from his savings bank account in the State Bank of India on the basis of a duplicate Pass Book. The Police after investigation submitted a chargesheet only against one accused Ram Badan Choudhary who is said to have applied for issuance of duplicate Pass Book and having signed the withdrawal slip received the amount in question.

The petitioner was employed in the said Bank as Deputy Manager in the same Branch as contended in para 5 of the present application. During trial, PW 1 in his evidence clearly stated that the duplicate Pass Book was issued after the application on behalf of the informant was verified and approved by the petitioner. Likewise the signature of the informant on the withdrawal slip was also verified and approved by the petitioner from the specimen signature available in the bank record. The witness inter alia suggested that if the petitioner had been cautious perhaps the withdrawal may not have been successfully effected. This Court has carefully gone through the deposition of PW 1.

Learned Senior Counsel, Shri B.K. Sinha, appearing on behalf of the petitioner submitted that the pre condition for applicability of Section 319 Cr.P.C. was that the person must not have been an accused. In the present case, the petitioner was an accused who was subsequently discharged. The contention is that thus the petitioner went out of the purview of Section 319 Cr.P.C. The submission was that the order of discharge dated 27.7.95 was a revisable order u/s 397. If the prosecution was aggrieved by the order of discharge it should have filed a revision application and then law would have taken its course. The option u/s 319 Cr.P.C. was no more available to the prosecution vis-a-vis the petitioner. The prosecution having failed to file such revision cannot be permitted to take advantage of its lapses. Learned Counsel relied upon a judgment reported in Sohan Lal and others Vs. State of Rajasthan, . In the aforesaid case relied upon, the appellants 4 and 5 were discharged of all the charges leveled against them after cognizance had been taken against them. This discharge was thus done at the post cognizance stage. Subsequently during trial on the basis of evidence lad by PWs 1 to 4 they were sought to be summoned to face trial u/s 319 Cr.P.C. The Apex Court after considering the case laws on the subject arrived at the conclusion in para 33 that the provisions of Section 319 Cr.P.C. have to be read in consonance with Section 398 of the Code of Criminal Procedure. It held that once a person was found to have been an accused in the case he goes out of the reach of Section 319. In the case of an accused who had been discharged under the relevant provisions of the Code the nature of finality of such order and resultant protection of the person discharged subject to revision u/s 398 of the Code could not be lost sight of. On this reasoning the order summoning the appellants 4 and 5 u/s 319 Cr.P.C. was quashed. At this stage it must be borne in mind that the appellants 4 and 5 were discharged by an appropriate order after consideration of discharge application which was filed after cognizance was taken and after hearing arguments from both the prosecution and the defence. Perhaps there lies the distinction.

In the present case, the petitioner has been discharged as not sent up for trial. There was no proper application for discharge and neither was the case of the petitioner considered for discharge after hearing the prosecution and the defence. It would appear from the order dated 27.7.95 that while taking cognizance he was simply discharged because the police did not sent him up for trial. There is thus a fundamental distinction between the case law of the Apex Court relied upon by the Counsel for the petitioner as mentioned above and the present case.

It would perhaps be useful to refer the judgment of the Apex Court in Kishun Singh and Others Vs. State of Bihar, . Therein a chargesheet was forwarded wherein 18 persons other than the two appellants were shown as offender since the involvement of the two appellants in the commission of the crime was not established in the opinion of the Investigating Officer. The concerned Magistrate committed the 18 persons to stand trial. No orders were passed by the Magistrate on the final form with regard to the two appellants. The two appellants were sought to be summoned subsequently. While considering the question of applicability of Section 319Cr.P.C. the Supreme Court in para 11 clearly held that "even a person who has earlier been discharged would fall within the sweep of the power conferred by Section 319 of the Code". Their Lordships proceeded to hold that Section 319 covers the post cognizance stage where in course of enquiry or trial the involvement or complicity of a person or persons not named by the Investigating Agency surfaced which necessitated exercise of discretionary power u/s 319 of the Code. This power could be invoked only if the evidence surfaces in course of an enquiry or a trial disclosing the complicity of person or persons other than those already made an accused. The sine qua non for exercise of power u/s 319 was the complicity coming to light from the evidence taken and recorded in course of enquiry or trial. This may happen not merely in cases where despite the name of a person figuring during course of investigation and the Investigating Agency does not send him up for trial but even in cases where complicity of such person comes to light for the first time in course of evidence recorded at enquiry and trial. The purport of Section 319 would apply to cases where after cognizance involvement of any person or persons in the commission of the crime comes to light during evidence recorded at trial.

This court would also refer the judgment reported in Girish Yadav and Others Vs. State of Madhya Pradesh, In the said case, after investigation appellants 5 to 8 were not chargesheeted as no case was found to be prima facie proved against them during investigation. In para 16 of the said judgment the Apex Court repelled the argument that accused 5 to 8 not having been chargesheeted could not have been roped in u/s 319 Cr.P.C. The last judgment to be referred being reported in 2002 (1) ACR 419 (SC) wherein certain persons were not chargesheeted though named in the FIR. During trial they were sought to be summoned u/s 319 Cr.P.C. on the basis of evidence of certain PWs. On challenge, the same was set aside by the High Court holding that Section 319 Cr.P.C. could not be invoked when a person named as an accused in the FIR was not chargesheeted. The Apex Court set aside the order of the High Court relying upon the judgment reported in Kishun Singh and Others Vs. State of Bihar, referred herein-above and the court affirmed the order of summon u/s 319 Cr.P.C.

It would thus be seen that the basic prerequisite for application of Section 319 Cr.P.C. was at the post cognizance stage, which stood fulfilled in the present case. Unlike the judgment relied upon by the Counsel for the petitioner in Sohan Lal and others Vs. State of Rajasthan, there is no formal order of discharge at the post cognizance stage in the present case. The Magistrate quite simply and mechanically did not send them up for trial relying upon the Police Report simultaneously with and at the stage of cognizance. There was no adjudicatory order for their discharge. This judgment was therefore of no help to the petitioner, in view of the consideration of the matter in Kishun Singh and Others Vs. State of Bihar, this Court holds that there is no infirmity in the impugned order in law and the same requires no interference. In the result, this Court finds no reason to interfere with the impugned order dated 15.12.2001. The application is therefore dismissed.