| Headnote |
Code of Criminal Procedure, 1973: s.319 – Scope and ambit of power of Magistrate under s.319 – Prosecution case was that on the fateful day, the accused persons, ten in number, arrived at the place where the complainant (PW-1), his son (PW-2) and victim- deceased were present – Accused persons were armed with swords, pistols, hockeys, iron bars and gandasi etc. and they attacked PW- 2 and the victim-deceased and inflicted injuries with their respective weapons – When PW-1 raised alarm, accused persons fled away from place of occurrence – The injured were rushed to hospital where the deceased succumbed to injuries – Investigating officer submitted report against four accused only – According to him, the appellants were not present at the place of occurrence – Thereafter Investigating Agency conducted further investigation wherein also it found that the appellants were not present at the place of occurrence rather they were found on different places – Magistrate directed release of the appellants – Trial proceeded against other accused – Application filed by PW-1 under s.319 to summon the appellants categorically stating that the appellants were present at the time of the incident – Trial court summoned the appellant to face trial for the offences under ss.148, 149, 323, 325, 302, 307 and 506 of IPC – Revision petition challenging the order of trial court dismissed by High Court – On appeal, held: PW-1-first informant had specifically named ten persons as accused, including the appellants in the FIR – However, they were not shown as accused in the challan/charge-sheet – There was nothing on record to show that PW-1 was given an opportunity to submit the protest application against non-filing of the charge-sheet against the appellants – In the deposition before the Court, P.W.1 and P.W.2 specifically stated against the appellants and the specific role was attributed to them – Thus, the statements of P.W.1 and P.W.2 before the Court could be said to be “evidence” during the trial and, therefore, on the basis of the same the persons against whom no charge-sheet was filed could be summoned to face the trial – Therefore, no error was committed by the Courts below to summon the appellants to face the trial in exercise of power under s.319. Code of Criminal Procedure, 1973: s.319 – Investigating Agency conducted investigation wherein it found that the appellants were not present at the place of occurrence – As the appellants were in custody, SHO filed applications before the Magistrate on 1.9.2016 and 28.10.2016 submitting that after investigation since no evidence was found against the appellants, therefore, they may be discharged/released – Magistrate directed release of the appellants – Application filed by complainant under s.319 to summon the appellants categorically stating that the appellants were present at the time of the incident – Trial court summoned the appellants to face trial – Submission that once the appellants were discharged by the Magistrate on an application submitted by the Investigating Officer/SHO, therefore, thereafter it was not open to the Magistrate to summon the accused to face the trial in exercise of power under s.319 – Held: The submission is not tenable – Orders dated 01.09.2016 and 28.10.2016 cannot be said to be the orders discharging the accused – If the applications submitted by the Investigating Officer/SHO and the orders passed thereon are considered, those were the applications to discharge/release the appellants from custody as at that stage the appellants were in judicial custody – Therefore, as such, those orders cannot be said to be the orders of discharge in stricto sensu – Those were the orders discharging the appellants from custody – Under the circumstances, the submission on behalf of the accused that as they were discharged by the Magistrate and therefore it was not open to the Magistrate to exercise the power under s.319 of the CrPC and to summon the appellants to face the trial, cannot be accepted. Code of Criminal Procedure, 1973: Closure report – Procedure to be followed before accepting closure report – Held: Before accepting the closure report, the Magistrate is bound to issue notice to the complainant/original informant and the complainant/ original informant is required to be given an opportunity to submit the protest application and, thereafter, after giving an opportunity to the complainant/original informant, the Magistrate may either accept the closure report or may not accept the closure report and direct to proceed further against those persons for whom the closure report was submitted. |
