IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.980 of 2017
Arising Out of PS.Case No. -199 Year- 2008 Thana -BALIA District- BEGUSARAI

1. Naresh Sah @ Ram Naresh Sah Son of Late Damodar Sah, Resident of
Village- Karhari, P.S.- Dandari, District- Begusarai.

…. …. Appellant/s
Versus

1. The State of Bihar
…. …. Respondent/s

Appearance :

For the Appellant/s : Mr. Ajay Kr. Thakur,
Mr. Nilesh Kumar, Advocates
For the Respondent/s : Mr. Binay Krishna, SPP

CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
CAV ORDER

4 10-05-2017 Being aggrieved by and dissatisfied with the order

dated 24.08.2016 passed by the Special Judge, SC/ST, Begusarai

in Sessions Trial No. 44 of 2010 arising out of Balia PS Case No.

199 of 2008, whereby and whereunder, appellant, Naresh Sah @

Ram Naresh Sah has been summoned to face trial invoking the

power envisaged under Section 319 CrPC, filed instant appeal

under Section 14A(1) of the SC/ST (POA) Act.

2. The main crux of argument raised on behalf of

appellant is that the Court should not have acted on a petition filed

on behalf of informant as the informant is not at all competent

enough to sail the proceeding save and except to the extent of

liberty granted in terms of Section 301(2) of the CrPC. Therefore,

the prayer made on behalf of informant would not be recognizable,

consequent thereupon, the learned lower court would not have
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taken cognizance thereof and so, summoning the appellant on that

very score is found contrary to the spirit of law whereupon the

order impugned is fit to be set aside.

3. Furthermore, to buttress such plea, put reliance in

the case of Dhariwal Industries Limited v. Kishore Wadhwani as

reported in (2016) 10 SCC 378.

4. Learned Special P.P. opposed the prayer and

submitted that the order impugned happens to be just, legal and

proper, on account thereof, does not require interference.

5. In order to properly appreciate the points raised on

behalf of appellant, it looks better to incorporate Section 319 CrPC

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, may be 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, and witnesses re-heard;

(b) subject to the provisions of clause (a), the case
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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.

6. From the plaint reading of Section 319 CrPC, it is

evident that it happens to be obligatory on the part of the court to

perceive the evidence and gather therefrom, whether the persons

who are not on the record as an accused, are also to be prosecuted

on account of divulgence of allegation against him. Basic principle

commanding the aforesaid eventuality is found on the principle of

judex damnature-cum-nocens avsolvitur, that means to say ‘judge

is condemned when guilty is acquitted’ and while appreciating the

ambit and scope of Section 319 of the CrPC, the aforesaid basic

principle commands the whole event and further, the judge has to

act in accordance thereof.

7. Section 319 CrPC enables the Court to summon

those who are not on record as an accused on account of so many

factors including being discharged at an earlier occasion, being not

named and its intricacies attracted so many Constitution Bench

under old CrPC and recently in the case of Dharam Pal v. State of

Haryana as reported in (2014) 3 SCC 306 as well as Hardeep

Singh v. State of Punjab as reported in (2014) 3 SCC 92. In

Hardeep Singh’s case, the case of Dharampal Singh has also
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been taken note of.

8. In Hardeep Singh’s case question no.5 was

formulated relating to persons having not named in the FIR and it

has been answered under para-117.6 which is as follows:-

“117.6 A person not named in the FIR or a person
though named in the FIR but has not been
chargesheeted or a person who has been discharged can
be summoned under Section 319 Cr.P.C. provided from
the evidence it appears that such person can be tried
along with the accused already facing trial. However, in
so far as an accused who has been discharged is
concerned the requirement of Sections
300 and 398 Cr.P.C. has to be complied with before he
can be summoned afresh.”

9. Now coming to the case of Dhariwal Industries

Limited v. Kishore Wadhwani as reported in (2016) 10 SCC 378,

as referred on behalf of appellant, it is evident that the aforesaid

matter came up before the Apex Court on account of permitting

the appellant/complainant/informant to participate at the stage of

Section 239 CrPC, that means to say, at the stage of

charge/discharge with a rigor in terms of Section 301(2) of the

CrPC and on that very score, the matter has been thrashed and

during course thereof, the relevant provision in terms of Section

301 as well as 302 of the CrPC has been taken note of and culled
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down in para-17 which is as follows:-

17. We have already explained the distinction
between Sections 301 and 302 CrPC. The role of the
informant or the private party is limited during the
prosecution of a case in a Court of Session. The
counsel engaged by him is required to act under the
directions of public prosecutor. As far as Section 302
CrPC is concerned, power is conferred on the
Magistrate to grant permission to the complainant to
conduct the prosecution independently.

10. Though the matter has been left open for the

Magistrate to pass appropriate order in terms of Section 302 CrPC,

in case, approached by the appellant.

11. In Anant Prakash Sinha v. State of Haryana

reported in (2016) 6 SCC 105, similar nature of question

challenging the identity of informant was raised during course of

asking for amendment of charge in terms of Section 216 CrPC by

the informant, the matter was dealt with from para-21 and at para-

22, it has been held as follows:-

22. Being of this view, this Court upheld the order
passed by the High Court. The said decision in Shiv
Kumar case [(1999) 7 SCC 476] is, in our opinion, is
distinguishable on facts. The instant case does not
pertain to trial or any area by which a private lawyer
takes control of the proceedings. As is evident, an
application was filed by the informant to add a charge
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under Section 406 IPC as there were allegations against
the husband about the criminal breach of trust as far as
her stridhan is concerned. It was, in a way, bringing to
the notice of the learned Magistrate about the defect in
framing of the charge. The court could have done it suo
motu. In such a situation, we do not find any fault on the
part of learned Magistrate in entertaining the said
application. It may be stated that the learned Magistrate
has referred to the materials and recorded his prima facie
satisfaction. There is no error in the said prima facie
view. We also do not perceive any error in the revisional
order by which it has set aside the charge framed against
the mother-in-law. Accordingly, we affirm the order of
the High Court in expressing its disinclination to
interfere with the order passed in revision. We may
clarify that the entire scrutiny is only for the purpose of
framing of charge and nothing else. The learned
Magistrate will proceed with the trial and decide the
matter as per the evidence brought on record and shall
not be influenced by any observations made as the same
have to be restricted for the purpose of testing the legal
defensibility of the impugned order.

12. In Gulab Chand v. Pradeep Kumar Dehalwal

reported in (2014) 14 SCC 472 whereunder the learned trial court

summoned respondent considering the prayer made by the

prosecution in accordance with Section 319 CrPC who was not
7

named in the FIR which was set aside by the High Court and

allowing the appeal, it has been held under para-7 and 8 which

reads as follows:-

“7. With the assistance of the learned counsel
for the appellant and respondent no.1, we have
carefully perused the evidence of the mother of the
deceased- P.W.5 and the father of the deceased-P.W.6.
We have also seen the order passed by the Trial Court
as well as by the High Court. The High Court, without
properly examining the evidence on record and
without properly appreciating the judgment passed by
the Trial Court, ought not to have reversed the
findings reached by the Trial Court. In our considered
view, the Trial Court was justified in calling upon the
respondent no.1 to face the trial for the death of the
deceased.

8. In view of the above, we allow this appeal,
set aside the order passed by the High Court in
Criminal Revision No.704 of 2011 and restore the
order passed by the Trial Court. Any observations
made by us in the course of our order are only for the
purpose of disposal of this appeal. This should not be
taken as an expression of our opinion for involving of
respondent no.1 for the death of the deceased. In view
of the order passed by us, the interim order granted by
this Court stands vacated.

13. Therefore, by the Constitution Bench, the Apex
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Court has paved the way for summoning of those accused who

though not named in the FIR but properly identified during course

of evidence.

14. Whether on a petition filed on behal of informant,

an order concerning summoning of accused would be passed. In Y.

Saraba Reddy v. Puthur Rami Reddy as reported in (2007) 4 SCC

773, it has been held as follows:-

“11. Power under Section 319 of the Code can be
exercised by the Court suo motu or on an application by
someone including accused already before it. If it is
satisfied that any person other than accused has committed
an offence he is to be tried together with the accused. The
power is discretionary and such discretion must be
exercised judicially having regard to the facts and
circumstances of the case. Undisputedly, it is an
extraordinary power which is conferred on the Court and
should be used very sparingly and only if compelling
reasons exist for taking action against a person against
whom action had not been taken earlier. The word
“evidence” in Section 319 contemplates that evidence of
witnesses given in Court. Under Sub-section (4)(1)(b) of
the aforesaid provision, it is specifically made clear that it
will be presumed that newly added person had been an
accused person when the Court took cognizance of the
offence upon which the inquiry or trial was commenced.
That would show that by virtue of Sub-section (4)(1)(b) a
legal fiction is created that cognizance would be presumed
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to have been taken so far as newly added accused is
concerned.

The above position was highlighted in Lok Ram v.
Nihal Singh and Anr. (2006 (10) SCC 192).”

15. In Bholu Ram v. State of Punjab as reported in

(2008) 9 SCC 140, it has been held under para-22 which is as

follows:-

“22. It is also settled law that power under
Section 319 can be exercised either on an application
made to the Court or by the Court suo motu. It is in the
discretion of the Court to take an action under the said
section and the Court is expected to exercise the
discretion judicially and judiciously having regard to the
facts and circumstances of each case.”

16. In the aforesaid backdrop of settled principle of

law as referred above, it is crystal clear that the court either on its

own or on an application filed on behalf of any party including an

accused, since before, will pass an order relating to Section 319

CrPC and there happens to be no clutch prescribed therefor. That

being so, the order impugned survives. In the aforesaid event, the

citation having been referred at the end of appellant has got no

relevancy on present controversy.

17. Now coming to the present controversy, it is
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evident that appellant, Naresh Sah @ Ram Naresh Sah is not

named in the Fard-e-beyan of informant, Punam Kumari while

putting allegation against other co-accused to have sprinkled acid

over her in order to kill her. From the order impugned, it is evident

that witnesses have named the appellant during trial and that

happens to be reason behind that on that very score, the order

impugned has not been challenged.

18. That being so, the objection having been raised on

behalf of appellant is not at all found acceptable, legally

entertainable and consequent thereupon, the instant appeal is

found deficient one, hence is dismissed.

(Aditya Kumar Trivedi, J)
perwez

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