- (1.) HEARD learned senior counsel for the petitioners and the learned counsel for the State.
(2.) THIS application is directed against the order dated 17/09/2012, passed in S.T. No. 263/2010, whereby and whereunder these petitioners were summoned under Section 319 Cr. P.C. to face trial. Mr. Roy, learned senior counsel appearing for the petitioners submits that earlier a case was registered as Hirodih P.S. Case No. 14/2010, against these petitioners and other accused persons for commission of the offence punishable under Sections 498 A, 304 B/34 of the Indian Penal Code, on the allegation that these petitioners, who happens to be the father -in -law, brother -in -law (Devar) and sister -in -law (Nanad) of the deceased and also the other accused persons, committed dowry death, but the police, during investigation, did not find the case of dowry death, rather did find the case as that of Section 306 of the Indian Penal Code and that too nothing was found against these petitioners. Hence, no charge sheet was submitted against these petitioners, rather the charge sheet was submitted against other accused persons, who were related as husband and mother -in -law of the deceased. Accordingly, charge was framed under Section 306 of the Indian Penal Code and they were put on trial. In course of trial, 11 witnesses were examined and then an application under Section 319 Cr. P.C. was filed on behalf of the prosecution to summon these petitioners. That application was allowed by recording that the name of these petitioners is there in the written report of the informant and also in the subsequent statements, recorded under Section 161 Cr. P.C. and also on oath before the Court. That order is under challenge.
(3.) MR . Roy, learned senior counsel appearing for the petitioners submits no doubt that it is true that even the person, who has not been charge sheeted, can be summoned under Section 319 Cr. P.C., to face the trial if certain evidence showing culpability on the part of that person comes in, but certainly not on the basis of the statements made in the FIR and the statement of the witnesses recorded under Section 161 Cr. P.C. But, here the Court has taken into account the statements made in the FIR and also the statements of the witnesses, made under Section 161 Cr. P.C., which is quite illegal. However, it was submitted that the Court apart from those materials has also referred to about the evidence, but it is quite vague as it has simply been recorded that on oath there appears to be evidence against the petitioners.;