Hasima Khatoon and Others vs Murtaza Ansari and Another

Mihir Kr. Jha, J.—Heard counsel for the petitioners and the State. In this case, by an order, dated 11.12.2006 notices were directed to be issued to Opposite Party No. 1. From the service report, it is apparent that such notice was personally served on the Opposite Party No. 1 on 4.2.2007 but despite service of such notice, no one has appeared on his behalf.

The petitioners are aggrieved by an order, dated 1.3.2006 passed in complaint case No. 1859 of 2001 whereby and whereunder the application u/s 319 of the Code of Criminal Procedure filed by the complainant-opposite party No. 1 has been allowed and the four petitioners have been summoned to face trial.

Short facts giving rise to the present application is that on 3.11.2001 a complaint case filed against eight persons including the four petitioners but after holding enquiry u/s 202 of the Code of Criminal Procedure, the learned Magistrate had issued notice and summons only against four of them and no order was passed in respect of these four petitioners meaning thereby the Court did not find any material for summoning them. Subsequently, while the matter was pending for trial and no witnesses were examined in such trial, an application at the behest of the complainant-Opposite Party came to be filed on 24.10.2005 praying therein that since the complaint was filed by him against eight persons but the Court below while taking cognizance had issued summons only against four persons and not against these four petitioners, they should be also summoned under the provisions of Section 319 of the Code of Criminal Procedure in view of the fact that in course of the enquiry u/s 202 of the Code of Criminal Procedure in the statement of the witnesses, the complicity of these four petitioners (accused persons) were also borne out.

The Court below ultimately by the impugned order, dated 1.3.2006 relying on the statement of the witnesses recorded in course of enquiry u/s 202 of the Code of Criminal Procedure has arrived at a conclusion that these four petitioners also are prima facie involved in the commission of the offence and, therefore, the application u/s 319 of the Code of Criminal Procedure of the complainant-Opposite Party No. 1 was fit to be allowed.

Mr. Ganapati Trivedi, learned Counsel for the petitioner while assailing the correctness of the impugned order has drawn attention of this Court not only to wording of Section 319 of the Code of Criminal Procedure but also on the fact that the expression "accused" used in Section 319 of the Code of Criminal Procedure will only means such person who were found to be guilty in course of trial. Mr. Trivedi in this regard has also placed reliance on a judgment of this Court in the case of Rama Devi and Another Vs. State of Bihar and Another wherein following the judgment of the Apex Court in the case of Sohan Lal and others Vs. State of Rajasthan, , it has been laid down that such persons arrayed as an accused in a complaint case if not summoned by the Magistrate to face trial at the stage of taking cognizance after conducting an enquiry u/s 202 of the Code of Criminal Procedure go out of reach of Section 319 of the Code of Criminal Procedure as they do not fall within the term "not being the accused".

Having appreciated the aforementioned submission and also the case law, I am satisfied that the impugned order u/s 319 of the Code of Criminal Procedure cannot be sustained. It is apparent from the uncontroverted facts that the petitioners alongwith four others were named as an accused in the petition of complaint and the learned Magistrate despite examination of the complainant on solemn affirmation and examination of his three witnesses did not find any materials and/or circumstances to issue summons against these petitioners even when he had found a prima facie case against rest of the four accused persons. In such a situation, the application filed by the complainant for summoning the petitioners u/s 319 of the Code-of Criminal Procedure on the basis of the deposition of witnesses before framing of charges was wholly misconceived as the four petitioners were already made accused and were not summoned for facing trial by the Magistrate. Thus, in view of the aforementioned admitted facts and circumstances as well as the judgment of the Supreme Court in the case of Rama Devi (supra), I hold the impugned order dated 1.3.2006 to be bad and illegal and in teeth of Section 319 of the Code of Criminal Procedure. Consequently, the order dated 1.3.2006 passed in Complaint Case No. 1859 of 2001 is hereby quashed. In the result, this application is allowed.