Patna High Court
Ravi Shankar Pati Dubey vs The State Of Bihar on 25 March, 2025
Author: Shailendra Singh
Bench: Shailendra Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.36683 of 2016
Arising Out of PS. Case No.-97 Year-2007 Thana- DURAULI District- Siwan
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Ravi Shankar Pati Dubey S/o Nawal Kishore Pati Dubey resident of Village-
Done, P.S.- Darauli, District- Siwan.
... ... Petitioner/s
Versus
The State Of Bihar
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr. Prabhakar Singh, Adv.
For the Opposite Party/s : Mr. Binod Kumar No.3, APP
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CORAM: HONOURABLE MR. JUSTICE SHAILENDRA SINGH
ORAL JUDGMENT
Date : 25-03-2025
Heard Mr. Prabhakar Singh, learned counsel for the
petitioner and Mr. Binod Kumar No.3, learned APP appearing
for the State.
2. The instant petition has been filed under section 482
of the Code of Criminal Procedure (in short the Cr.P.C.) with a
prayer to quash the order dated 21.06.2016 passed by the learned
2nd Assistant Sessions Judge, Siwan in Sessions Trial No. 161 of
2008, arising out of Darauli P.S. Case No. 97 of 2007, whereby
the learned Assistant Sessions Judge has allowed the application
filed by the prosecution under section 319 of the Cr.P.C and
Patna High Court CR. MISC. No.36683 of 2016 dt.25-03-2025
consequently directed the petitioner to be summoned to face the
trial.
3. Learned counsel for the petitioner submits that the
petitioner was named in the FIR but after investigation, he was
not sent up by the police and the concerned Magistrate also did
not take cognizance against him. Thereafter, the prosecution
filed a petition before the trial court to add the name of the
petitioner in the cognizance order and that petition was rejected
and thereafter, a petition was filed under section 319 of the
Cr.P.C. which was rejected, though not on merit, and thereafter,
the prosecution again made a prayer under section 319 of the
Cr.P.C. to summon the petitioner.
4. Learned counsel for the petitioner submits that
copies of the depositions of prosecution witnesses, PW 1 to PW
6, have been filed and from its perusal, it is evident that all the
said prosecution witnesses did not level any specific allegation
against the petitioner in the commission of the alleged
occurrence and the allegations levelled by them against the
petitioner is completely vague and general and the same is not
sufficient to summon the petitioner by invoking the provisions of
section 319 of the Cr.P.C and it is settled position of law that
there must be strong materials to summon one as an accused
Patna High Court CR. MISC. No.36683 of 2016 dt.25-03-2025
during the trial in the light of the prosecution evidences and for
exercising the said power, the prosecution evidence upon which
reliance is placed by the prosecution must be much stronger
than the evidences which are required to find out prima facie
commission of an offence by an accused at the time of taking
cognizance and in this matter at the time of passing the order
impugned under section 319 of the Cr.P.C, no strong evidence
appears from the evidence of PW 1 to PW 6 and even the I.O.,
who was examined as PW 6, did not say anything to show the
petitioner's involvement in the alleged occurrence. In support of
this submission, learned counsel has placed reliance upon the
judgement of the Hon'ble Apex Court passed in the case of
Hardeep Singh v. State of Punjab reported in (2014) 3 SCC 92
and the relevant paragraphs upon which reliance has been placed
are being reproduced as under:-
"95. At the time of taking cognizance, the
court has to see whether a prima facie case is made
out to proceed against the accused. Under Section
319 CrPC, though the test of prima facie case is the
same, the degree of satisfaction that is required is
much stricter. A two-Judge Bench of this Court in
Vikas v. State of Rajasthan [(2014) 3 SCC 321 :
(2013) 11 Scale 23] , held that on the objective
satisfaction of the court a person may be "arrested"
or "summoned", as the circumstances of the case
may require, if it appears from the evidence that any
such person not being the accused has committed
an offence for which such person could be tried
Patna High Court CR. MISC. No.36683 of 2016 dt.25-03-2025
together with the already arraigned accused
persons".
"105. Power under Section 319 CrPC is a
discretionary and an extraordinary power. It is to be
exercised sparingly and only in those cases where
the circumstances of the case so warrant. It is not to
be exercised because the Magistrate or the Sessions
Judge is of the opinion that some other person may
also be guilty of committing that offence. Only
where strong and cogent evidence occurs against a
person from the evidence led before the court that
such power should be exercised and not in a casual
and cavalier manner".
"106. Thus, we hold that though only a
prima facie case is to be established from the
evidence led before the court, not necessarily tested
on the anvil of cross-examination, it requires much
stronger evidence than mere probability of his
complicity. The test that has to be applied is one
which is more than prima facie case as exercised at
the time of framing of charge, but short of
satisfaction to an extent that the evidence, if goes
unrebutted, would lead to conviction. In the absence
of such satisfaction, the court should refrain from
exercising power under Section 319 CrPC. In
Section 319 CrPC the purpose of providing if "it
appears from the evidence that any person not
being the accused has committed any offence" is
clear from the words "for which such person could
be tried together with the accused". The words used
are not "for which such person could be
convicted". There is, therefore, no scope for the
court acting under Section 319 CrPC to form any
opinion as to the guilt of the accused".
5. It is further submitted that it is settled position of
law that after summoning one as an accused under section 319
Patna High Court CR. MISC. No.36683 of 2016 dt.25-03-2025
of the Cr.P.C, such person, accused, must be given an
opportunity of hearing before adding him as an accused and in
this regard, the observation made by the Hon'ble Apex Court in
the paragraph no. 8 of the judgement in the case of Yashodhan
Singh & Ors. v. State of U.P. & Ors reported in (2023) 9 SCC
108 is relevant. The said paragraph is being reproduced as
under:-
"8. Shri S. Nagamuthu, learned
Senior Counsel, at the outset submitted that para 9
of Jogendra Yadav [Jogendra Yadav v. State of
Bihar, (2015) 9 SCC 244 : (2015) 3 SCC (Cri) 756]
has categorically recorded that when an accused is
summoned in exercise of the power under Section
319 of the Criminal Procedure Code, 1973
("CrPC" for short), such an accused has to be
heard before being added as an accused to face
trial; that such an accused has a further right of
hearing if he challenges the summoning order
before the High Court and further before this
Court. In light of the observations of this Court in
Jogendra Yadav [Jogendra Yadav v. State of Bihar,
(2015) 9 SCC 244 : (2015) 3 SCC (Cri) 756] , the
right of an accused, who is summoned to be heard
before being added as an accused has been
recognised by this Court; that in the instant case
because there was no such hearing that was
provided to the appellants, who were added as
accused, in light of the aforesaid judgment, the
impugned order [Yashodhan Singh v. State of U.P.,
2023 SCC OnLine All 700] may be set aside and
the matter may be remanded to the Sessions Court
for giving an opportunity to the appellants of being
heard before being added as accused".
Patna High Court CR. MISC. No.36683 of 2016 dt.25-03-2025
6. It is lastly submitted that the petitioner was minor
aged about 14-15 years at the time of commission of the alleged
occurrence and in this regard, there is sufficient evidence with
the petitioner to prove his juvenility being at the time of
commission of the alleged occurrence.
7. On the other hand, learned APP appearing for the
State, while referring to the provisions of section 319 of the
Cr.P.C., has vehemently opposed the prayer of the petitioner and
submitted that power conferred under section 319 of the Cr.P.C.
has been rightly exercised by the trial court and there is
sufficient material against the petitioner in the evidence of the
prosecution witnesses examined before the trial court to show
the petitioner's active involvement in the commission of the
alleged offences and the evidence of these prosecution witnesses
is much stronger than the materials which are required to find
out prima facie petitioner's involvement in the commission of
the alleged offences.
8. Heard both the sides and perused the impugned
order, particularly, the depositions of the prosecution witnesses
examined before summoning the petitioner under section 319 of
the Cr.P.C.
Patna High Court CR. MISC. No.36683 of 2016 dt.25-03-2025
9. As per prosecution story, on the alleged date and
time of the occurrence, the accused persons, including the
petitioner, who were named in the FIR, came at the field of the
informant and started harvesting the crop which was objected by
the informant and his family members and thereafter, the
accused persons assaulted the informant by using Lathi, Danda,
fists and slaps and the most important witnesses of the alleged
occurrence are the informant and his son, Umesh Singh, who
were examined as PW 3 and PW 4 respectively, and from perusal
of their evidence, it clearly appears that the petitioner was
present at the place of occurrence and they have clearly deposed
that the petitioner was also involved in the commission of
alleged occurrence, though, they could not have revealed
specific role of the petitioner but did not deny the active
participation of the petitioner in the alleged occurrence and these
materials are much stronger than the material which is required
to take cognizance of the alleged offences against the petitioner
and in this regard, the learned trial court has rightly exercised its
power under section 319 of the Cr.P.C.
10. So far as the liberty to the petitioner to be heard
before adding him as an accused in the light of principle laid
down by Hon'ble Apex Court in the case of Yashodhan Singh
Patna High Court CR. MISC. No.36683 of 2016 dt.25-03-2025
(supra) is concerned, there is no plea on behalf of the petitioner
that such liberty has not been granted to him till date and the trial
court is bound to give proper opportunity to the petitioner of
hearing before adding him as an accused if in this regard, prayer
is made on behalf of the petitioner.
11. The learned trial court is directed to pass an
appropriate order after holding an inquiry by the trial court itself
or by J.J. Board with regard to the petitioner's plea of juvenility
if in this regard, a petition is filed by him with sufficient prima
facie material and such plea must be decided as per the
provisions of Juvenile Justice Act.
12. Accordingly, this court finds no illegality in the
order impugned and no merit in this petition and the same stands
disposed of.
(Shailendra Singh, J)
BKS/-
AFR/NAFR AFR
CAV DATE N.A.
Uploading Date 27.03.2025
Transmission Date 27.032025
