- (1.) IN this writ application, the petitioner has prayed for quashing the order dated 8-4-2005 passed by the learned 7th Additional Sessions Judge, Godda in Sessions Case no. 54/2003, whereby the petitioner has been summoned to face trial as an additional accused.
(2.) THE petitioner's case is that previously, before framing of charge, the informant had filed a petition dated 24-6-2002 under S.319 CrPC whereupon the court had issued summons to the petitioner calling upon him to face the trial as an additional accused, who was not sent up for trial in the charge sheet. The petitioner had challenged the said order in the Patna High Court in Cr. Revision No. 635/99(P). The said Cr. Revision was disposed of by order dated 3-8-1999 allowing the revision. The petitioner's case is that an FIR was lodged under S.451, S.323, S.307 and S.341 IPC against three named persons, namely, Bhagwat Bhandari, Shiv Narayan Bhandari and Divakar Bhandari but after investigation the police had submitted charge sheet being No. 20/98 under S.307, S.323, S.451 and S.341 IPC on 13-4-1998, only against two persons, namely, Shiv Narayan Bhandari and Diwakar Bhandari. However, the Sub Inspector, Poraiyahat Police Station, by his letter dated 25-8-1998 addressed to the Chief Judicial Magistrate, Godda, had informed that as per the direction of the higher officers, there will be further investigation against the petitioner but the investigation as against the two others has been concluded. On 9-7-1999 the informant had also filed a protest petition before the Chief Judicial Magistrate, Godda and also sought a direction upon the Officer Incharge, Poraiyahat Police Station to send report about the development in investigation against the petitioner. The other accused except the petitioner were sent up for trial. Thereafter the case was committed to Sessions for trial before the First Additional Sessions Judge, Godda. In course of sessions trial as many as 17 witnesses were examined and cross examined and at that stage the petitioner is sought to be summoned for facing the trial by the impugned order passed under S.319 CrPC which is wholly illegal and arbitrary inasmuch as the power under S.319 CrPC should not be exercised at the fag end of trial. Evidence against the petitioner is also not sufficient for his conviction and if the impugned order is allowed to stand, there will be a gross injustice to the petitioner. Mr. A. K. Kashyap, learned counsel appearing for the petitioner, reiterated the said facts on the ground and in support of his contention, relied upon the decisions in the case of Sahdeo Rai v. State of Jharkhand, reported in 2005 (2) East. Cr. Cases 449, Michael Machado v. CBI, reported in 2000 (3) SCC 262 : AIR 2000 SC 1127 : 2000 CriLJ 1706. Sohan Lal v. State of Rajasthan, reported in 1990 SCC (Cri) 650 : AIR 1990 SC 2158 : 1990 CriLJ 2302 and Basudeo Mondal v. Dud Kumar Pramanick, reported in 1982 CriLJ 1654 (Cal).
(3.) ON the other hand, learned JC to GP II took a preliminary objection that this writ application is not maintainable in view of the effective alternative remedy of revision and even on merit, there is no infirmity or illegality in the impugned order. The learned counsel submitted that the court below has recorded elaborate reasons in support of the order and the court below has noticed that the petitioner has not been charge sheeted in the case and police has submitted final form declaring that the case against the petitioner is false. In course of trial the witnesses, namely, PWs. 1, 2 and 12 have given the name of the petitioner as an associate in taking part in the commission of the alleged offences and keeping in view of the said evidences and the observation of the Patna High Court, the said order has been passed. Learned counsel further submitted that there is sufficient material on record against the petitioner, who was not an accused before the learned court below and there is no illegality in the impugned order passed under S.319 CrPC. The learned counsel has placed reliance on the decisions in the case of Girish Yadav v. State of M. P., reported in 1996 (8) SCC 186 : AIR 1996 SC 3098 : 1996 CriLJ 2159, Smt, Rukhsana Khatoon v. Sakhawat Hussain, reported AIR 2002 SC 2031: 2002 AIR Jhar HCR 700: 2002 CriLJ 2806. Learned counsel submitted that the court has ample power to exercise jurisdiction under S.319 CrPC and to summon the additional accused if on the basis of the evidences recorded in course of an enquiry into or trial of the offence, he appears to have committed the offence.;