Patna High Court
Chandan Kumar vs The State Of Bihar on 5 August, 2025
Author: Shailendra Singh
Bench: Shailendra Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL REVISION No.809 of 2023
Arising Out of PS. Case No.-523 Year-2020 Thana- AHIYAPUR District- Muzaffarpur
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Chandan Kumar Son Of Madan Paswan Resident Of Village - Kolhua
Paigamburpur New Police Line Road,Near Dr. Rajiv Kumar's Clinic, P.S. -
Ahiyapur, District - Muzaffarpur
... ... Petitioner/s
Versus
1. The State of Bihar
2. Ravi Kumar Rajak Son Of Satendra Rajak Resident Of Companybagh
Yogiya Math, P.S. - Town, District - Muzaffarpur
3. Jyoti Narayan Singh Son Of Tej Narayan Singh Resident Of Harpur, Lahori,
New Police Line Road, Ward No.12, P.S. - Ahiyapur, District - Muzaffarpur
4. Devanand Singh Son Of Jyoti Narayan Singh Resident Of Harpur, Lahori,
New Police Line Road, Ward No.12, P.S. - Ahiyapur, District - Muzaffarpur
5. Gopal Sah Son Of Nahendra Sah Resident Of Harpur, Lahori, New Police
Line Road, Ward No.12, P.S. - Ahiyapur, District - Muzaffarpur
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Masoom Alam, Advocate
For the Resp. No. 3&4 : Mr. Rajeev Kumar Singh, Advocate
Mr. Gyanendra Kumar, Advocate
For the Resp. No. 5 : None.
For the State : Mr. Binod Kumar No. 3, APP
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CORAM: HONOURABLE MR. JUSTICE SHAILENDRA SINGH
ORAL JUDGMENT
Date : 05-08-2025
Heard Mr. Masoom Alam, learned counsel for the
petitioner, Mr. Rajeev Kumar Singh, learned counsel for the
respondent nos. 3 & 4 and Mr. Binod Kumar No.3, learned APP
for the State.
2. The present criminal revision has been filed against
the order dated 02.08.2023 passed by the court of the learned
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Additional District & Sessions Judge-6-cum-Special Judge,
POCSO, I, Muzaffarpur, by which the learned trial court rejected
the petition dated 11.05.2023 filed by the petitioner under Section
319 of the Code of Criminal Procedure (in short, ‘Cr.P.C.’) for
summoning the O.P. Nos. 3 to 5 as accused in the trial of O.P. No.2
in connection with Ahiyapur P.S. Case No. 523 of 2020.
3. The allegations levelled by the petitioner in his FIR
relate to a sexual offence and the murder of the victim, who
happened to be the daughter of the petitioner. The FIR was
registered by the petitioner initially against unknown persons
under Section 363 of the IPC, in which later the offences under
Sections 302 and 201 read with Section 34 of the IPC were added.
4. After investigation, the police chargesheeted O.P. No.
2, namely Ravi Kumar Rajak, for the offences under Sections 363,
341, 342, 302, 376(DA), and 201/34 of the IPC, and Sections 4, 6,
and 8 of the Protection of Children from Sexual Offences Act (in
short, ‘POCSO Act‘), and also under Sections 3(w)(i)(ii) and 3(2)
(va) of the Scheduled Castes and the Scheduled Tribes (Prevention
of Atrocities) Act (in short ‘SC/ST Act’). Accordingly, he faced
trial and, as per the petitioner’s counsel, has been convicted for the
charged offences. During the course of the trial of O.P. No. 2, a
petition under Section 319 of Cr.P.C. was filed by the petitioner
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(vide Annexure-P/4), in which he referred to several paragraphs of
the case diary and the testimonies of PW-1 to PW-7 to substantiate
his claim regarding the involvement of O.P. Nos. 3 to 5,
particularly in the offence under Section 201 of IPC.
The learned trial court rejected the petitioner’s prayer,
finding no substance in the request to invoke the provisions of
Section 319 of Cr.P.C., and discussed the materials that came out
during the trial in detail to determine whether there was any merit
in the allegations levelled by the petitioner against O.P. Nos. 3 to
5.
5. The first and foremost argument advanced by Mr.
Masoom Alam, learned counsel appearing for the petitioner, is that
the victim, who was merely eight years old at the time of
occurrence, went to the shop of O.P. No. 2 with one girl, namely
Gunja Kumari, to purchase some cosmetic items but thereafter
went missing. Consequently, the FIR was registered against
unknown persons. It later came to light that O.P. Nos. 3 to 5 were
also present at the shop of O.P. No. 2 when the victim went there.
The manner in which the alleged occurrence of murder took place,
followed by the disappearance of the victim and efforts to conceal
material evidence, clearly suggests that more than one person was
involved in the commission of the alleged occurrence. This is the
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main reason for the petitioner to suspect that O.P. Nos. 3 to 5 were
involved in committing the alleged offences or in helping the main
accused in concealing relevant evidence of the alleged offences of
rape and murder.
6. No one is present on behalf of O.P. No. 5.
7. Mr. Rajeev Kumar Singh, learned counsel appearing
for O.P. Nos. 3 and 4, submits that the learned trial court rightly
rejected the petitioner’s application by the impugned order, as
there is not even prima facie evidence that came out during the
course of the trial of O.P. No. 2 to show the involvement of the
other O.Ps in the commission of the alleged offences. Mere
suspicion raised by the petitioner, without support from the
prosecution’s evidence, is insufficient to summon them under
Section 319 of Cr.P.C. and there is nothing on record.
8. I have heard both sides and perused the evidence of
the prosecution that came before the trial court in connection with
the trial of O.P. No. 2. The petitioner’s prayer made under Section
319 of the Cr.P.C. for summoning O.P. Nos. 3 to 5 as accused to
face trial along with O.P. No. 2 has been rejected. The provision of
Section 319 Cr.P.C. reads as under:
‘ where, in the course of any inquiry into,
or trial of, an offence, it appears from the evidence
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any offence for which such person could be tried
together with the accused, the Court may proceed
against such persons for the offence which he
appears to have committed’.
From a bare reading of the aforesaid provision, it is clearly
evident that, for summoning a person as an accused during the
course of trial, there must be some evidence that has come on
record during the trial before making the prayer under Section 319
of the Cr.P.C. and from such evidence, there must be the
satisfaction on the part of the trial court that it appears that the
person sought to be summoned as an accused has committed an
offence for which he could be tried together with the other accused
who is/are already facing trial. The trial court’s satisfaction must
be based on the evidence that has come on record in the course of
trial. It is a settled law that suspicion, however so strong, cannot be
treated as an evidence.
At this juncture, I would like to refer to some judgments of
the Hon’ble Apex Court with regard to the rightful use of the
provision under Section 319 of the Cr.P.C. In the case of
Municipal Corporation of Delhi vs. Ram Kishan Rohtagi and
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Hon’ble Apex Court in paragraph no. 19 that the power conferred
upon the trial court under Section 319 of Cr.P.c. is an extraordinary
power which should be used very sparingly and only if compelling
reasons exist for taking cognizance against the other persons
against whom action has not been taken. The Hon’ble Court’s
observation is reproduced as under:-
” 19. In these circumstances, therefore, if the
prosecution can at any stage produce evidence which
satisfies the court that the other accused or those who have
not been arrayed as accused against whom proceedings
have been quashed have also committed the offence the
Court can take cognizance against them and try them
along with the other accused. But, we would hasten to add
that this is really an extraordinary power which is
conferred on the court and should be used very sparingly
and only if compelling reasons exist for taking cognizance
against the other person against whom action has not been
taken. More than this we would not like to say anything
further at this stage. We leave the entire matter to the
discretion of the court concerned so that it may act
according to law. We would, however, make it plain that
the mere fact that the proceedings have been quashed
against Respondents 2 to 5 will not prevent the court from
exercising its discretion if it is fully satisfied that a case
for taking cognizance against them has been made out on
the additional evidence led before it. ”
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While reiterating the aforesaid principle, the Hon’ble Apex
Court in the case of Mohd. Shafi vs. Mohd. Rafiq and Another,
reported in (2007) 14 SCC 544, observed in paragraph 12 that
before exercising the jurisdiction under Section 319 of Cr.P.C., the
trial court must be satisfied that there exists a possibility that the
person sought to be summoned as an accused would, in all
likelihood be convicted. The relevant paragraph no. 12 of this
judgment is reproduced as under:
” 12. From the decisions of this Court, as
noticed above, it is evident that before a court exercises
its discretionary jurisdiction in terms of Section 319 of
the Code of Criminal Procedure, it must arrive at the
satisfaction that there exists a possibility that the accused
so summoned is in all likelihood would be convicted.
Such satisfaction can be arrived at inter alia upon
completion of the cross-examination of the said witness.
For the said purpose, the court concerned may also like
to consider other evidence. We are, therefore, of the view
that the High Court has committed an error in passing the
impugned judgment. It is accordingly set aside. The
appeal is allowed. ”
In the case of Vikash vs. State of Rajasthan, reported in
(2014) 3 SCC 321, the Hon’ble Apex Court observed that while
exercising the power conferred under Section 319 of the Cr.P.C.,
the trial court should exercise this extraordinary power very
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sparingly, and ensure that the principles of rule of law and the
basic principles of criminal law jurisdiction are not vitiated. The
relevant paragraph no. 12 of this judgment is reproduced as under:
” 12. A perusal of Section 319 CrPC would
clearly indicate 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 together with the already arraigned accused persons.
The court should exercise judicial discretion on a
consideration of the totality of the facts and
circumstances of a given case and in a manner where
proper procedures are followed that are fundamental to
the right of fair trial of the accused. The section demands
more circumspection by the trial court while exercising
its powers since it confers an extraordinary power and
should be used by the court very sparingly thereby
ensuring that principles of the rule of law and basic tenets
of criminal law jurisprudence are not vitiated.”
9. If we conjointly take into account the aforesaid
principles laid down by the Hon’ble Apex Court and the provisions
of Section 319 of the Cr.P.C., it becomes clearly evident that the
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power under Section 319 of the Cr.P.C. for summoning a person as
an accused during the trial of other accused should be exercised
very sparingly, and only when if there exists the possibility that the
accused so summoned would, in all likelihood, be convicted. Such
satisfaction must be based on the evidence that has come out
during the course of the trial.
10. Now, I come to the present matter, all the material
witnesses of the prosecution, upon whom reliance has been placed
by the petitioner, simply stated that O.P. No. 3, Jyoti Narayan
Singh, who was the owner of the house in which O.P. No. 2 had
taken a shop on rent, was standing near the stairs, while the other
O.Ps were sitting at the counter and inside the shop of O.P. No. 2
on the alleged day of the occurrence. It is neither the case of the
prosecution nor has it come out in the evidence of the prosecution
witnesses that O.P. Nos. 3 to 5 were seen with O.P. No. 2 at the
time when the alleged offences of rape and murder were being
committed. None of the prosecution witnesses claimed or stated
that they saw O.P. Nos. 3 to 5 removing the dead body from the
shop or concealing material evidences related to the commission
of the alleged offences. Therefore, mere presence of these O.Ps at
the shop of O.P. No. 2 during the relevant time, without
establishing any specific role of any of them in the commission of
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the alleged offences either just before or after the occurrence with
the main accused (O.P. No. 2), would not be sufficient to put these
O.Ps on trial for the alleged offences. Furthermore, the allegations
levelled by the petitioner, which neither find place in the FIR nor
has emerged during the trial in the testimony of any witness are
completely based on suspicion. Such suspicion cannot be made a
ground for summoning O.P. Nos. 3 to 5 to face trial along with
O.P. No. 2.
11. Accordingly, I am of the considered opinion that
the evidence given by the prosecution witnesses before the trial
court, prior to the filing of the petition by the petitioner under
Section 319 of Cr.P.C., was not sufficient to summon the O.P.
Nos. 3 to 5 as accused for subjecting them to trial for the alleged
offences along with the co-accused, Ravi Kumar Rajak (O.P.
No. 2), who was facing trial at that time, because the petitioner
fails to satisfy this Court from the evidences which had come in
the trial court before he filed his petition under Section 319 of
Cr.P.C. that, if O.P. Nos. 3 to 5 had been summoned, there was a
possibility of their conviction.
12. As such, I find no merit in the present Revision
Petition, and the learned trial court rightly rejected the petitioner’s
prayer by the impugned order. There is no illegality or impropriety
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in the same. Therefore, the instant Revision Petition stands
dismissed.
(Shailendra Singh, J)
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