Pawan Panjabi @ Prabhat Kumar ... vs The State Of Jharkhand
2023 Latest Caselaw 1785 Jhar

                                                      1                  Cr.M.P. No. 1215 of 2011


                      IN THE HIGH COURT OF JHARKHAND AT RANCHI
                                Cr.M.P. No. 1215 of 2011
                     Pawan Panjabi @ Prabhat Kumar Ahuja        ... Petitioner
                                           -Versus-
                1.   The State of Jharkhand
                2.   Alam Ansari                                 ... Opposite Parties
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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            For the Petitioner          : Mr. Suraj Kishore Prasad, Advocate
            For the State               : Mr. V.S. Sahay, A.P.P.
                                              -----

10/27.04.2023        Heard Mr. Suraj Kishore Prasad, learned counsel for the petitioner and

Mr. V.S. Sahay, learned counsel for the State.

2. This petition has been filed for quashing of the order dated

22.01.2011 passed in S.C. No.33 of 2010 by the learned Additional District

Judge, Fast Track Court, Sahibganj, whereby, the petitioner has been called

upon to face the trial under Section 319 Cr.P.C., pending in the court of the

learned Additional District Judge, Fast Track Court, Sahibganj.

3. On the application of the informant-opposite party no.2, the case was

registered alleging therein that on 16.06.2009 at about 12:00 noon, the

accused persons namely Ballu Ansari, Azad Ansari, Sajjad Ansari, Tohid

Ansari, Pawan Panjabi, Sonu Paswan and Manoj Paswan have caught

younger brother of the informant namely Md. Saiyad Ansari with intention to

kill him. In the meantime, the accused Ballu Ansari had fired bullet on the

head of Saiyad Ansari in the result of which he died at the spot near the

palm tree. On hulla, another younger brother of the informant and Mohalla

people reached at the place of occurrence. After seeing them, accused

persons fled away from the place of occurrence. It was further alleged that

the entire occurrence occurred in their presence. The reason behind this

case is that dish wire of the deceased was crossed over the roof of the

accused Ballu Ansari and accused Ballu Ansari had regularly used to cut this

dish wire, due to which the above named accused persons had committed

murder of the deceased Saiyad Ansari.

4. Learned counsel for the petitioner submits that the petitioner has

been called upon to face trial under Section 319 Cr.P.C. on the application of

the informant. He further submits that nothing cogent has come against the

petitioner and in spite of that the petitioner was called upon. He also

submits that there is no allegation of firing against the petitioner rather the

same has been alleged against one Ballu Ansari. The name of the petitioner

has been simply mentioned in the FIR with ulterior motive. He submits that

in that view of the matter, at the initial stage the learned court has not

taken cognizance against the petitioner, however on the application of the

informant, the petitioner has been called upon to face the trial. He also

submits that so far as other accused persons are concerned, they have

faced the trial and vide judgment dated 29.01.2011 itself, they have been

acquitted by the learned court. He submits that in absence of any material

against the petitioner, he has been called upon to face the trial under

Section 319 Cr.P.C.

5. On the other hand, learned counsel for the State submits that the

learned court on the application of the informant has called upon the

petitioner to face the trial. He further submits that there is no illegality in

the order.

6. The Court has gone through the judgment by which the other

accused persons have been acquitted and finds that in the said judgment

also, nothing has come against this petitioner. On the application filed by

the informant, the learned court has called upon the petitioner to face the

trial under Section 319 Cr.P.C. In the impugned order, it has not been

discussed who are the witnesses who have taken the name of the petitioner,

which suggests that without any cogent reason, the petitioner has been

called upon to face the trial.

7. Section 319 Cr.P.C. contemplates a situation where the evidence

adduced by the prosecution not only implicates a person other than the

named accused but is sufficient for the purpose of convicting the person to

whom summons is issued and the said Section is required to be applied with

circumspection. Recently, the Full Bench of the Hon'ble Supreme Court in

Sukhpal Singh Khaira v. State of Punjab; [(2023) 1 SCC 289] has

considered Section 319 Cr.P.C. and parameters of the provision has been

discussed. Paragraphs 39, 40 and 41 of the said judgment are quoted

herein below:

"39.(I) Whether the trial court has the power under Section 319CrPC for summoning additional accused when the trial with respect to other co-accused has ended and the judgment of conviction rendered on the same date before pronouncing the summoning order?

The power under Section 319CrPC is to be invoked and exercised before the pronouncement of the order of sentence where there is a judgment of conviction of the accused. In the case of acquittal, the power should be exercised before the order of acquittal is pronounced. Hence, the summoning order has to precede the conclusion of trial by imposition of sentence in the case of conviction. If the order is passed on the same day, it will have to be examined on the facts and circumstances of each case and if such summoning order is passed either after the order of acquittal or imposing sentence in the case of conviction, the same will not be sustainable.

40.(II) Whether the trial court has the power under Section 319CrPC for summoning additional accused when the trial in respect of certain other absconding accused (whose presence is subsequently secured) is ongoing/pending, having been bifurcated from the main trial?

The trial court has the power to summon additional accused when the trial is proceeded in respect of the absconding accused after securing his presence, subject to the evidence recorded in the split-up (bifurcated) trial pointing to the involvement of the accused sought to be summoned. But the evidence recorded in the main concluded trial cannot be the

basis of the summoning order if such power has not been exercised in the main trial till its conclusion.

41.(III) What are the guidelines that the competent court must follow while exercising power under Section 319CrPC? 41.1. If the competent court finds evidence or if application under Section 319CrPC is filed regarding involvement of any other person in committing the offence based on evidence recorded at any stage in the trial before passing of the order on acquittal or sentence, it shall pause the trial at that stage. 41.2. The court shall thereupon first decide the need or otherwise to summon the additional accused and pass orders thereon.

41.3. If the decision of the court is to exercise the power under Section 319CrPC and summon the accused, such summoning order shall be passed before proceeding further with the trial in the main case.

41.4. If the summoning order of additional accused is passed, depending on the stage at which it is passed, the court shall also apply its mind to the fact as to whether such summoned accused is to be tried along with the other accused or separately.

41.5. If the decision is for joint trial, the fresh trial shall be commenced only after securing the presence of the summoned accused.

41.6. If the decision is that the summoned accused can be tried separately, on such order being made, there will be no impediment for the court to continue and conclude the trial against the accused who were being proceeded with. 41.7. If the proceeding paused as in para 41.1 above, is in a case where the accused who were tried are to be acquitted, and the decision is that the summoned accused can be tried afresh separately, there will be no impediment to pass the judgment of acquittal in the main case.

41.8. If the power is not invoked or exercised in the main trial till its conclusion and if there is a split-up (bifurcated) case, the power under Section 319CrPC can be invoked or exercised only if there is evidence to that effect, pointing to the involvement of the additional accused to be summoned in the split-up (bifurcated) trial.

41.9. If, after arguments are heard and the case is reserved for judgment the occasion arises for the Court to invoke and exercise the power under Section 319CrPC, the appropriate course for the court is to set it down for re-hearing. 41.10. On setting it down for re-hearing, the above laid down procedure to decide about summoning; holding of joint trial or otherwise shall be decided and proceeded with accordingly. 41.11. Even in such a case, at that stage, if the decision is to summon additional accused and hold a joint trial the trial shall be conducted afresh and de novo proceedings be held. 41.12. If, in that circumstance, the decision is to hold a separate trial in case of the summoned accused as indicated earlier:

(a) The main case may be decided by pronouncing the conviction and sentence and then proceed afresh against summoned accused.

(b) In the case of acquittal the order shall be passed to that effect in the main case and then proceed afresh against summoned accused."

8. If there is substantive evidence against the person to call him to face

the trial, then only Section 319 Cr.P.C. can be required to be applied. A

reference may be made to the judgment passed by the Hon'ble Supreme

Court in Brindaban Das & others v. State of West Bengal; [(2009) 3

SCC 329]. Paragraphs 25, 26 and 29 of the said judgment are quoted

herein below:

"25. The common thread in most matters where the use of discretion is in issue is that in the exercise of such discretion each case has to be considered on its own set of facts and circumstances. In matters relating to invocation of powers under Section 319, the court is not merely required to take note of the fact that the name of a person who has not been named as an accused in the FIR has surfaced during the trial, but the court is also required to consider whether such evidence would be sufficient to convict the person being summoned. Since issuance of summons under Section 319 CrPC entails a de novo trial and a large number of witnesses may have been examined and their re-examination could prejudice the prosecution and delay the trial, the trial court has to exercise such discretion with great care and perspicacity.

26. Although a somewhat discordant note was struck in Rajendra Singh case the views expressed in the majority of decisions of this Court on the point subscribe to the view that the power under Section 319 CrPC is to be invoked, not as a matter of course, but in circumstances where the invocation of such power is imperative to meet the ends of justice.

xxx xxx xxx

29. Section 319 CrPC contemplates a situation where the evidence adduced by the prosecution not only implicates a person other than the named accused but is sufficient for the purpose of convicting the person to whom summons is issued. The law in this regard was explained in Ram Kishan Rohtagi case and as pointed out by Mr Ghosh, consistently followed thereafter, except for the note of discord struck in Rajendra Singh case. It is only logical that there must be substantive evidence against a person in order to summon him for trial, although, he is not named in the charge-sheet or he has been discharged from the case, which would warrant his prosecution thereafter with a good chance of his conviction."

9. In view of the above facts, reasons and analysis, the Court comes to

the conclusion that in absence of any cogent reason, the petitioner has

been called upon to face the trial, however the other accused persons have

been acquitted by the learned court. In that view of the matter, the order

dated 22.01.2011 passed in S.C. No.33 of 2010, pending in the court of the

learned Additional District Judge, Fast Track Court, Sahibganj is quashed.

10. Accordingly, this petition is allowed and disposed of.

(Sanjay Kumar Dwivedi, J.) Ajay/