D.K. Sinha, J. - (1.) THIS Criminal Revision is directed against the order impugned dated 25.2.2009 passed by Shri S.K. Chaudhary, Judicial Magistrate, Ist Class, Jamshedpur by which the petition filed on behalf of the Informant Sadaf Afrin under Section 319 of the Code of Criminal Procedure for arraying her husband i.e. the petitioner herein as an accused was allowed and the court by said order fixed the next date on 16.3.2009 for appearance of the accused Mujibur Rahman with the observation that if he could not appear on the next date, process for compelling his appearance would be issued.
(2.) THE prosecution story in short was that the informant -opposite party No. 2 had present a written report before the Officer -Incharge of the Mango Police Station alleging inter alia that she was married with the petitioner on 9.7.2003 according to the Muslim rites and customs and her parents had presented gifts including cash and kinds according to their capacity. After few days of marriage when her husband went to Saudi Arabia for employment, it was alleged that her father -in -law , mother -in -law and younger brothers of the husband started perpetrating torture alleging that her parents had not given adequate dowry on the eve of her marriage and she was asked to bring a sum of Rs. 50,000/ - from her parental home. She was assaulted and tortured in various manner due to non -fulfillment of their demand. Yet she used to tolerate all sorts of torture on expectation that one day her husband would come and rescue her. She further alleged that when her father came to know her welfare, she was brutally assaulted by all the accused persons, consequently she fell down and became unconscious. Ultimately she was forcibly driven out from her matrimonial home and finding no way out she took shelter at her parental home and lodged the instant case. Charges were framed against other accused persons except the petitioner -husband for the alleged offence under Sections 498A/34 of IPC as also under Section 3/4 of the Dowry Prohibition Act. After examination of six witnesses produced on behalf of the prosecution, the informant preferred a petition under Section 319 of Cr.P.C. requesting that the husband -petitioner may also be arrayed as an accused in the trial on the basis of the materials collected in course of trial that have been brought on the record and that the petitioner -husband was equally responsible for the misery of the informant -wife. Upon consideration of (the facts and circumstances, the trial magistrate by a detailed order dated 25.2.2009 allowed the petition filed under Section 319 of Cr.P.C of the informant -wife with the observation: Since the accused is residing out side of India and his parents and brothers have full knowledge of the case, hence summon against the new added accused is not required to issue. Put up this case on 16.3.2009 for appearance of the accused Mujibur Rahman. It is made clear that if on the next date fixed, the accused does not appear, process for compelling appearance will be issued. It is evident from such observation that no process as required under Section 319 of Cr.P.C. could be issued against the petitioner Mujibur Rahman compelling his appearance in the court below. Section 319 of Cr.P.C. deals with power to proceed against other persons appearing to be guilty of offence, which speaks: (1) Where, in 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 persons could be tried together with the accused, the court may proceed against such person for the offence which he appears to have committed. (2) Where such person is not attending the court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid. (3) Any person attending the court although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed. (4) Where the court proceeds against any person under sub -section (1) then - (a) the proceedings in respect of such persons shall be commenced afresh, and the witnesses re -heard; (b) subject to the provisions of Clause(a), the case may proceed as if such person had been an accused person when the court took cognizance of the offence upon which the inquiry or trial was commenced.
(3.) THUS the Code proposes that when an accused, who has been arrayed in the instant case, is not attending the court, he may be arrested or summoned as the circumstance of the case may require for the purpose of proceeding against him and to put him to stand charged with other accused and that de nove proceeding would be followed. It would be relevant to mention that L.C.R., which was called for, has been received but from the entire order sheet it is no where revealed that any kind of process has ever been issued against the petitioner. Therefore, I find that the order impugned supposed to be recorded pursuant to the petition filed under Section 319 of Cr.P.C. is incomplete in all respect. Hence this Criminal Revision requesting for setting aside the impugned order is not maintainable, accordingly, it is dismissed. However the trial court may follow the provisions of Section 319 of Code of Criminal Procedure in accordance with law.;