Rama Devi and Another vs State of Bihar and Another

Chandramauli Kr. Prasad, J.—Whether or not, a person who has been arrayed as an accused in a petition of complaint but not summoned to face trial u/s 204 of the Code of Criminal Procedure can later on be tried along with other accused persons in exercise of the power u/s 319 of the Code of Criminal Procedure (hereinafter referred to as the Code) is the question which falls for determination in the present case.

Facts lie in a narrow compass. Opposite party No. 2 Shambhu Prasad gave a report to the police alleging commission of offence under Sections 498-A, 304-B and 201/34 the Indian Penal Code (for short IPC). On that basis Nokha P.S. Case No. 129 of 1998 dated 24.9.1998 was registered against six persons including the Petitioners Rama Devi and Rena Kumari. Police after investigation submitted report as contemplated u/s 173 of the Code dated 14.12.1998 and found the allegation to be mistake of fact and did not forward any of the accused persons for trial. The report was laid before the Judicial Magistrate, 1st Class, Sasaram, who by his order dated 17.5.1999 accepted the same. In the meanwhile opposite party No. 2 filed a protest petition on 15.12.1998, which was treated as a petition of complaint and in that, besides the Petitioners, four other persons were also arrayed as accused. The learned Magistrate held an enquiry as contemplated u/s 202 of the Code and ultimately by order dated 19.8.1999 took cognizance of the offence under Sections 498-A, 304-B and 201 of the IPC and 3/4 of the Dowry Prohibition Act and directed for issuance of summons against four accused persons excluding the two Petitioners. Case was ultimately committed to the Court of Session. In the trial so held, witnesses were examined and thereafter an application was filed before the trial Court to summon the two Petitioners to be put on trial along with four other accused persons and for that purpose the trial Judge was requested to exercise its power u/s 319 of the Code. The learned Judge finding that the three prosecution witnesses examined on behalf of the prosecution have categorically stated about the involvement of the two Petitioners herein directed for issuance of summons against them.

Mr. Baidyanath Thakur appearing on behalf or the Petitioners submits that the learned Magistrate having decided to hold the enquiry u/s 202 of the Code but finding no sufficient ground declined to proceed against the Petitioners, while issuing processes to others, hence Petitioners shall be deemed to be accused in the case and as such power u/s 319 of the Code was not available to the trial Judge to summon these Petitioners. He points out that power under the said provision can be exercised only in regard to such person not being the accused. He emphasises that when these Petitioners had not been summoned, they go out of reach of Section 319 of the Code. In support of his submission he has placed reliance on a judgment of the Supreme Court in the case of Sohan Lal and others Vs. State of Rajasthan, and my attention has been drawn to paragraphs 20, 21 and. 33 of the judgment which read thus:

Chapter XV deals with complaints to Magistrates. Section 200 provides for examination of complainant. Section 202 deals with postponement of issue of process and says in Sub-section (1) that any Magistrate, on receipt of a complaint of an offence which he is authorised to take cognizance or which has been made over to him u/s 192, may, if he thinks fit, postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding. Thus we find that the expression "the accused" has been used in relation to a complaint case under this section even before issue of process. It also appears that in the Code the expression "the accused" is used after cognizance is taken by the Magistrate.

Chapter XVI of the Code deals with commencement of proceedings before Magistrate. Section 204 dealing with issue of process uses the expression "the accused". Under Sub-section (i) thereof if in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding and the case appears to be (a) a summons case, ho shall issue his summons for the attendance of the accused, or (b) a warrant case, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to he brought or to be brought or to appear at a certain time before such Magistrate or (if he has no jurisdiction himself) some other Magistrate having jurisdiction. Under Sub-section (2), no summons or warrant shall be issued against the accused under Sub-section (1) until a list of the prosecution witnesses has been filed. Thereafter the expression ''the accused'' has been used in subsequent sections. Thus one is referred to as ''the accused'' even before issue of process.

The above views have to yield to what is laid down by this Court in the decisions above referred to. The provisions of Section 319 had to be read in consonance with the provisions of Section 398 of the Code. Once a person is found to have been the accused in the case he goes out of the reach of Section 319. Whether he can be dealt with under any other provisions of the Code is a different question. In the case of the accused who has been discharged under the relevant provision of the Code, the nature of finality to such order and the resultant protection of the persons discharged subject to revision u/s 398 of the Code may not be lost sight of.

(Underlining mine)

Yet another decision on which learned Counsel has placed reliance is the judgment of this Court in the case of Uma Shankar Sahay Vs. State of Bihar and Another, and my attention has been drawn to paragraph 17 of the judgment, which reads thus:

I have already analysed above the provisions of Section 319 of the Code. A perusal of this section clearly shows that a person can be proceeded against under its provision if he figures as "any person not being an accused". If, however, the person concerned had figured as an accused from the very beginning of the case on account of the fact that he was named as an accused in the complaint petition itself, can it be said that he fits in the description given in Section 319 of the Code namely "any person not being the accused"? Obviously he was an accused from the very beginning of the institution of the case and as pointed out above the procedure for holding enquiry u/s 202 of the Code clearly describes the persons being proceeded against as an accused since the cognizance against him had already been taken. An such under the facts and circumstances of this case it '' cannot be said that the present Petitioner can be described as "any person not being an accused" so as to warrant to application of Section 319 of the Code.

To drive home his point that in the complaint case, the persons arrayed come within the expression ''the accused'' even before the issuance of process, Mr. Thakur has placed reliance on a judgment of this Court in the case of Munna Singh and Anr. v. State of Bihar 2002 (1) PCCR 374, and my attention has been drawn to paragraph 16 of the judgment, which reads as follows:

Now reverting to the authority of the Supreme Court in the case of Sohan Lal (supra) on which Mr. Madhup has placed strong reliance, I am of the opinion that the same is clearly distinguishable. True it is that in the said case, it has been held that once a person is found to have been the accused in the case, he goes out of the reach of Section 319 of the Code but the said judgment has clearly observed that the expression "the accused" has been used in relation to a complaint case even before issuance of process but in respect of others, after cognizance is taken by the Magistrate. This would be further evident from the fact that power to direct further enquiry is available u/s 398 of the Code, when the complaint has been dismissed, thus, Petitioners were not accused hence there is no bar for exercise of power u/s 319 of the Code.

Mr. Shyameshwar Dayal, Addl. P.P. appearing on behalf of the State and Mr. Sudama Singh representing opposite party No. 2 contend that no summons were issued against these Petitioners and as such power u/s 319 of the Code was available to the trial Judge and it finding sufficient evidence against the two Petitioners directed for issuance of summons against them and no fault can be found out in the same. In support bf the submission reliance has been placed on a decision of the Supreme Court in the case of Dr. S.S. Khanna Vs. Chief Secretary, Patna and Another, and my attention has been drawn to following passage from paragraphs 13 and 14 of the judgment, which read as follows:

Even when an order of the Magistrate declining to issue process u/s 203 is confirmed by a higher Court, the jurisdiction of Magistrate u/s 319 remains unaffected if other conditions are satisfied.

It is thus clear that it cannot be said that the Magistrate had no power to proceed against the Appellant in this case. On looking into the record we are of the view that the Magistrate had good reason to summon the Appellant u/s 319 of the Code as it appears from the evidence led at the trial that there was a strong case made out against the Appellant for joining him in the criminal case as an accused. It is, however, not necessary to refer to this aspect of the matter in detail having regard to the nature of the order we propose to pass in this case.

Reliance has also been placed on a Division bench judgment of this Court in the case of Bishwanath Tato and Ors. v. State of Bihar 1994 (1) East. Cr.C.7 and my pointed attention has been drawn to paragraph 176 of the judgment which reads thus:

Thus, it is clear that the expression "any person not being an accused" occurring in Section 319(1) of the Code has been interpreted to mean a person not being an accused before the Court holding inquiry or trial. The aforesaid expression includes the person who have not been sent up by the police during the investigation or against whom the proceeding has been quashed at the initial stage by the superior Court or who has not been summoned to face the trial, after enquiry u/s 202 of the Code or who have been discharged earlier in the proceeding. Such class of persons may be summoned as an accused to face the trial along with other accused already facing the trial, if the evidence adduced during the inquiry and trial shows their complicity in the crime in question.

Yet another decision on which reliance has been placed is the judgment of this Court in the case of Sk. Jamlu Quazi @ Md. Namaluddin and Others Vs. The State of Bihar and Another, and my attention has been drawn to the following passage from paragraph 10 of the said judgment, which reads as follows:

...In the said case the Court had found that the Magistrate had good reason to summon the Appellant u/s 319 of the Code as it appeared from the evidence that there was a strong case made out against the Appellant for joining him in a criminal case as an accused. Thus, in a case where the complaint had been dismissed u/s 203 of the Code the power of the Court to summon any person as an accused u/s 319 after evidence led at the trial has not been held to be barred....

My attention has also been drawn to a judgment of this Court in the case of Ajay Kumar Rana v. State of Bihar 2001 (3) PUR 120, relevant portion whereof reads as follows:

...The scope of the power u/s 319 of the Code had come up for consideration before this Bench. On careful examination of various decisions referred in it this Bench held that the expression "any person not being the accused" refers to such person, who is or are facing the enquiry or trial as an accused. The word "accused" in this section refers to the person or persons, who is or are facing the enquiry or trial at the time when'' the question of addition of an additional accused is being considered. The aforesaid expression includes the persons who have not been sent up by the police during the investigation or against whom the proceeding has been quashed at the initial stage by the superior Court or who has not been summoned to face the trial, after enquiry u/s 202 of the Code or who have been discharged earlier in the proceeding. It was held by this Bench that such class of persons may be summoned as an accused to face the trial along with other accused already facing the trial, if the evidences adduced during the inquiry and trial shows their complicity in the crime in question....

The rival submissions necessitate examination of Section 319(1) of the Code, same reads as follows:

Power to proceed against other persons appearing to be guilty of offence.-- (1) 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.

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From a plain reading of the aforesaid provision it is clear that any person not being the accused in course of any enquiry or trial, later on, when it appears in course of enquiry of trial that such person has committed any offence, the Court may proceed against such person and try him together with other accused persons. To me the meaning of the word accused in Section 319 of the Code would mean person facing the enquiry or trial, when the question of addition of accused is considered, does not seem logical to me. Once, a person is facing enquiry or trial the question of his addition as an accused does not arise at all.

The question, therefore, is as to whether these Petitioners were the accused in the enquiry or trial earlier. As stated earlier, these Petitioners were not sent up for trial by the police and when opposite party No. 2 filed the protest petition, the learned Magistrate treated the same as a petition of complaint, postponed the issue of process and directed for enquiry. After the enquiry the learned Magistrate did not issue process against these Petitioners. In my opinion, these Petitioners were accused in the enquiry and as such do not come within the expression "not being the accused" so as to come within the reach of Section 319 of the Code.

There seem apparent conflict between the decisions of the Supreme Court in the case of Sohan Lal (supra) and Dr. S.S. Khanna (supra). In the case of Sohan Lal (supra) the Supreme Court has found that the expression "the accused has been used in relation to a complaint case even before issuance of process" and "once a person is found to have been accused in the case he goes out of the reach of Section 319" but in the case of Dr. S.S. Khanna (supra) the Supreme Court observed that "having regard to the nature of the proceeding u/s 202 of the Code it may be difficult to hold that there is a legal bar based en the principle of estoppel to proceed against a person complained against on the same material if the court has dismissed the complaint u/s 203 of the Code". After saying so the Supreme Court in the case of Dr. S.S. Khanna further observed that "it is not necessary to express any final opinion on the question having regard to the nature of the order it intended to pass in the said case." Further in the case of Dr. S.S. Khanna (supra) the point projected was the bar based on the issue of estoppel primarily. Not only this, the decision in the case of Sohan Lal (supra) was rendered on consideration of the decision in the case of Dr. S.S. Khanna. In such a situation I would prefer to follow the decision of the Supreme Court in the case of Sohan Lal (supra) and hold that in a case in which a person is arrayed as an accused in a petition of complaint and after the Magistrate postpones the issue of process, holds an enquiry and does not issue process against some persons, those persons shall not come within the expression "not being the accused" and as such they go out of the reach of Section 319 of the Code.

I find additional reason to come to the aforesaid conclusion. In a police case the statement during the course of investigation is taken by the investigating agency and one may not lose sight of the fact that what has been recorded in the first information report or the statement before the investigating agency may not be true representation of the statement. So far as the complaint petition is concerned, it is presented by the complainant and statements are recorded by the Magistrate which guarantees correct recording. Further when a petition of complaint is dismissed the complainant has remedy u/s 398 of the Code to pray for further enquiry in respect of such person who has been discharged. The power of further enquiry can be exercised on the material brought by the complainant without any hindrance, whereas in the police case such materials may not be available for no fault of the informant or the witnesses.

It has to be borne in mind that the expression "accused" in a police case and complaint case does not carry the same meaning. In the police case if processes are not issued against a person such persons come within the expression "any person not being the accused" but in the complaint case the expression "the accused" has been used even before the issuance of process.

Now reverting to the decision of the Division Bench judgment of this Court in the case of Bishwanath Tato (supra) I am of the opinion that the same is clearly distinguishable. In the said case the police after investigation submitted charge sheet against some of the accused persons but did not forward those accused persons, although were shown as accused persons in the first information report but were summoned to face trial u/s 319 of the Code. In the background of the said case it was held that power u/s 319 of the Code was available Similarly in the case of Sk. Jamlu Qazi (supra) the question revolved around the power conferred u/s 319 of the Code in respect of persons who were not sent up for trial in a police case. As I have observed earlier in a police case a person against whom processes are not issued are not accused in contra-distinction to the complaint case where the term "accused" is used even before the issuance of process.

For the same reasons the decision of this Court in the case of Ajay Kumar (supra) is clearly distinguishable.

In the result, the application is allowed and the impugned order is set aside.