- (1.) THIS application is directed against the order dated 29.2.2012 passed by learned Sessions Judge II, Giridih in connection with Bengabad P.S case no.140 of 2007 whereby and whereunder this petitioner has been summoned to face trial in which some of the accused persons have already been found guilty for an offence under Section 304 of the Indian Penal Code.
(2.) LEARNED counsel appearing for the petitioner submits that an F.I.R was lodged against this petitioner as well as four other accused persons alleging therein that they all killed Ashok Kumar Verma. The matter was taken up for investigation but the Investigating Officer did not find any culpability on the part of this petitioner whereas allegations were found to be true against other accused persons and therefore, while submitting charge sheet against other accused persons, this petitioner was never sent up for trial. Thereupon cognizance of the offence was taken against the accused persons against whom charge sheet had been submitted and they were put on trial. The prosecution led witnesses, upon which the court did find them guilty for an offence under Section 304 of the Indian Penal Code and thereby they were convicted. While recording the order of conviction, the court also observed that same evidence is also against this petitioner but since the petitioner was not facing trial, the order of conviction cannot be recorded. Subsequently, the case was ordered to be split up and then summon was ordered to be issued under Section 319 of the Code of Criminal Procedure against the petitioner to face trial, though earlier when the final form had been submitted by the police, the informant had filed protest petition. That was dismissed and in such situation, summoning the accused to face trial under Section 319 would be quite illegal and therefore, the order impugned is fit to be set aside. Learned counsel further submits that the court has also committed illegality in summoning this petitioner at the very late stage and thereby the court committed illegality in view of the decision rendered in a case of Lalu Prasad @ Lalu Prasad Yadav vs. State of Jharkhand through S.P, C.B.I [2008 (2) East Cr.C 346 (Jhr)].
(3.) IT is well settled principle that if there appears to be cogent evidence which satisfies the Court that the other accused who had not been arrayed as an accused has also committed the crime can be summoned for trying him along with other accused by virtue of provision as contained in Section 319 of the Code of Criminal Procedure which reads as follows: "319. 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. (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, maybe 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 person shall be commenced afresh, an 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." ;