HARI SHANKAR PRASAD, J. - (1.) THIS application under Article 226 of the Constitution of India, has been filed for quashing the order 24.9.2004 passed in Sessions Case No. 88 of 2004 whereby and whereunder the learned Additional Sessions Judge, Fast Track Court No. 11, Deoghar summoned the petitioner under Sec.319, Cr PC.
(2.) PROSECUTION case in brief is that the informant Kalawati Devi gave a written report in Palazori police station alleging therein that she has got her daughter Ful Kumari married with Sahdeo Rai, the petitioner about three years ago and on 30.11.2003 at about 10.00 a.m. she got information from one Mani Rai of village Barmasiya that her daughter Ful Kumari had called her, on getting this information at about 12.30 p.m. she along with her Bhaisur Paiter Rai and villager Tulo Rai went to village Barmasiya where she saw dead body of her daughter in burnt condition which was lying in her sasural.. On inquiry she came to know that her daughter 's, husband Sahdeo Rai and Bhaisur Kamdeo Rai have burnt her daughter to death. The cause of death is attributed to the fact that on the last occasion of Dussehra when she had gone to Barmasiya, her daughter had told her that her husband Sahdeo Rai and Bhaisur Kamdeo Rai were demanding motorcycle by way of dowry and if the demand is not fulfiled, then she may be killed. On the basis of this fardbeyan dated 30.11.2003, a case under Section 304(B)/ 34, Indian Penal Code was instituted against the petitioner and Kamdeo Rai. The police took up investigation and submitted charge -sheet against Kamdeo Rai only but did not send up this petitioner for trial, but the police had submitted charge -sheet under Sec.306, Indian Penal Code but charge was framed under Sec.304(B) against Kamdeo Rai only. Cognizance in this case was taken against Kamdeo Rai only and charge was also framed against Kamdeo Rai and in course of trial, witnesses were examined and at the fag end of trial, before delivery of judgment, the learned Court below passed an order holding that this petitioner who is husband of the deceased Ful Kumari is equally responsible and he has played equal role in the alleged killing of Ful Kumari and directed to issue summon against this petitioner under Sec.319, Cr PC separating trial of this petitioner from the other. The sole contention of the learned counsel for the petitioner is that the order summoning this petitioner is misconceived and will amount to abuse of the process of the Court on the ground that police did not send up the petitioner for trial and the learned C.J.M. on the materials available in the case diary, did not consider it fit to take cognizance against this petitioner. Further contention of the learned counsel for the petitioner is that at the fag end of the trial, summoning this petitioner without any evidence on record is nothing but an abuse of the process of the Court. In this connection, he placed reliance upon number of case laws which shows that at the fag end of the trial, the power under Sec.319, Cr PC should not be exercised. He relied upon the case of Michael Machado and Anr. V/s. Central Bureau of Investigation and Anr., reported in - - - - wherein it has been held that power under Sec.319, Cr PC should be exercised carefully, although it is a discretionary in nature. It was further held that it should be exercised judicially having regard to various factors including the stage at which the trial has proceeded already, quantum of evidence collected and time spent by the Court in collecting evidence and when evidence is not like that, then such power should not be exercised as it will amount to misuse of the process of the Court. Reliance was also placed upon the case of Krishnappa V/s. State of Karnataka, - - - - wherein also it has been held that a person can be summoned even though proceedings had already been quashed qua him. In this very case, a petition under Sec.319, Cr PC was filed and the trial Court had rejected the prayer for summoning the accused on the ground that the evidence against him is not sufficient for his conviction, although previously proceeding against him had been quashed. But the Hon ble Apex Court had observed that even though proceeding had earlier been quashed, still he can be summoned under Sec.319, Cr PC when learned Court below has come to a finding that evidence is not sufficient to summon the petitioner and prayer was, therefore, rejected in that very case, the power should not be exercised under Sec.319, Cr PC. Here in the instant case, it is submitted that evidence against this petitioner is also not such which can be ended in his conviction, therefore, summoning of this petitioner will amount to abuse of the process of the Court.
(3.) ON the other hand, learned J.C. to G.P. II submitted that the Court had itself come to a finding that the petitioner has played equal role and he is equally responsible for the same. Hence, stage of trial cannot be considered and even after conclusion of trial the said person can be summoned under Section 319, Cr PC. In this connection, reliance was placed upon - - - - . Reliance was further placed upon - - - - .;