ORDER S. Haider Shaukat Abidi, J.
1. Smt. Rama Sharma wife of Brijbhushan Sharma (accused) has moved this Court in revision against the order of the learned Additional Sessions Judge IX, Patna, dt. 7-7-87 whereby he has rejected the application of the State for the exercise of the power under Section 319, Cr. P.C. (hereinafter referred to as the 'Code') for summoning Ratan Devi and Pinki Sharma, opposite parties, as accused who have already been discharged by the learned Sessions Judge dt. 18-12-85 saying that no charges could be framed against them.
2. It appears that a complaint was filed by Smt. Rama Sharma (hereinafter referred to as the 'Complainant') before the learned C.J.M., Patna, saying that she was married to Brijbhushan Sharma, accused No. 5, on 21-2-79 and various valuable articles as detailed in the complaint petition were given to her by way of gift and that both lived a peaceful life for about 4 months. Thereafter the accused namely Dharatn Pal Sharma (father-in-law), Ratan Devi (mother-in-law), Pinki Devi (wife of the elder brother of the husband), Deobrat Sharma (elder brother of the husband) and Brijbhushan Sharma (the husband himself) started to extract money from her and pressed her to bring money from her widowed mother. She brought heavy amounts four or five times but ultimately out of annoyance her mother refused to pay anymore. Dharam Pal and Deobrat started pressing the informant to indulge in flesh trade by giving allurement. Brijbhushan, the husband, also pressed her to indulge in the immoral acts. Pinki Sharma, a woman of bad character and having illicit connection with the complainants' father-in-law Dharam Pal continued in flesh trading and earns handsome money. On her refusal to indulge in the flesh trade the informant was ill treated by the accused persons and they began to assault and forced her to go out of the house and they also snatched her ornaments. On various dates she was assaulted. On 18-8-81 at about 10 p.m. Ratan Devi and Pinki Sharma closed the door from inside at the instance of other accused and then Brijbhushan Sharma sprinkled kerosene oil over the informant's body and he tried to lit the fire but her hue and cry attracted the people of the mohalla and then she was saved It was again on 8-10-81 at about 11 p. m. that she was assaulted by all the accused with fists and slaps bitterly and even her two children were snatched from her for which she lodged an information at the police station, but by the time the police came the accused had left the house.
Again on 5-1-82 at about 9.30 p.m. she was assaulted by the accused and she was turned out of the house, but on the intervention of the police she could go back to her house. It was on 14-1-82 at about 2 a.m. in the night that the accused got her seated in a Taxi but when commotion prevailed in the house her life was saved. On 12-2-82 she was again assaulted and Deobrat Sharma closed her mouth and got her fallen down in a room and then Brijbhushan Sharma started pressing her neck to kill her but it was on the intervention of the neighbours again that her life was saved Again the accused arranged to kill her on 15-2-82 but somehow she informed the City Superintendent of Police whereupon the police arrived and found the facts correct but the police did not register any case. Again on 2J5-2-82 at about 11.30 p.m. the accused assaulted her and Brijbhushan Sharma forced her to write a paper that she was leaving the house on her own accord Again on 24-5-82 at about 7 p.m. Deobrat Sharma and Pinki Devi sprinkled hot water on the complainant in order to kill her but she did not die, though she was hospitalised for about 7 days. Dharam Pal had also raped Malti Devi, a maid servant of the house on 9-5-82 which was also complained of and it had also caused annoyance to the accused.
3. The learned C.J.M., Patna, sent the said complaint to the Gandhi Maidan Police Station where it was instituted on 18-6-82 as Gandhi Maidan P.S. Case No. 540 of 1982 under Sections 307,376, I.P.C. and 3/4 of the Dowry Prohibition Act. The case was investigated and then charge-sheet was submitted under the said Section 2s against the said five accused persons. Thereafter the case was committed to the Court of learned Sessions Judge, being Sessions Trial No. 279/84.
4. An application dt. 2-8-85 was moved by the accused for their discharge under Section 227, Cr. P.C. saying that no case was made out against them. The learned Additional Sessions Judge after hearing the parties passed a detailed order dt. 18-12-85 saying that no case was made out against Ratan Devi and Pinki Sharma (hereinafter referred to as the 'two women'), but case was made out only against three accused persons. Brijbhushan Sharma was charged under Sections 384 and 307, I.P.C., Dharam Pal Sharma under Section 307 read with Sections 109 and 376, I.P.C. and Deobrata Sharma and Brijbhushan Sharma under Section 324, I.P.C. and Deobrata was again charged under Sections 307 and 324, I.P.C. Against this again charged under Sections 307 and 324, I.P.C. Against this order it appears that none of the parties have filed any revision.
5. Aforesaid Sessions trial No. 279/84 started from 12-3-86 when Janardan Prasad (P.W. 1) was examined who proved the complaint petition. Smt. Sumitra Buxi mother of the informant, Surendra Kumar Sharma, brother-in-law and Bahnoi of the informant and Dr. Uma Sharma, sister of the informant were examined on various dates.
6. After the examination of these four witnesses an application dt. 1-4-86 was filed by the State under Section 319, Cr. P.C. which is apparent from the order-sheet dt. 19-4-86 to summon Pinki Sharma and Ratan Devi, who have already been discharged on 18-12-85, on the ground that from the statements of these four witnesses participation of the said two women was made out. The demand of dowry has been supported by Sumitra Devi and P.Ws. 3 and 4, Other witnesses have also supported all the allegations in the complaint and the F. I. R.
7. The accused filed their reply saying that the application dt. 1-4-85 was not maintainable and that the complaint petition (Ext. 1) was the basis of the Gandhi Maidan P. S. Case No. 40(C) 82 which has been proved by P.W. 1, that the evidence of P.Ws. 2, 3 and 4 was hearsay evidence, that the two women have already been discharged by the said order dt. 18-12-85 under Section 227, Cr. P.C. and against which no revision has been filed. The learned Sessions Judge after hearing the learned Counsels for the parties rejected the said application saying that the complaint petition (Ext. 1) proved by P.W. 1 was not a substantive piece of evidence and so no action could be taken on the petition of complaint, that the statements of P.Ws. 2, 3 and 4 were on the basis of the information given by the informant Rama Sharma who had narrated the occurrence to them and so unless the complainant Rama Sharma is examined the evidence of these three witnesses could not be taken into consideration for summoning the two women accused and that there was no legal evidence as yet to summon the accused persons.
8. The trial was resumed on 8-5-86 whereafter P.Ws. 5, 6, 7 and lastly P.W. 8 the informant were examined. Her examination started on 29th May, 1986 and thereafter her cross-examination continued on various dates.
9. While her cross-examination was continuing again an application under Section 319, Cr. P.C. was filed by the State for summoning the two women as the P.Ws. 2, 3 and 4 have already supported the case of the prosecution and the complainant (P.W. 8) has also supported the case in various paragraphs which show that a case has been made out against the two women also. It was also said that she has already sent the application to the Prime Minister of India, The Home Secretary, Government of Bihar, The District Magistrate and the Sr. Superintendent of Police, Patna, and other authorities for protection of life. The consideration of this application was deferred till the cross-examination of the complainant was over.
10. It was on 7-7-87 after the conclusion of the cross-examination of the informant that the learned Addl. Sessions Judge passed the impugned order dt. 7-7-87 dismissing the said application dt. 13-12-86 under Section 319, Cr. P.C. The learned Sessions Judge held that the Additional Sessions Judge had already passed the order dt. 1842-85, that charges against the two women accused are vague and uncertain, that the evidence already available in the case diary has been reproduced by the informant, that if any order is passed by the Court under Section 319, Cr. P.C. it will amount to review or revision of the earlier order of discharge, that no revision has been filed against the order of discharge, that in Radhe Shy am Mishra v. State of U.P. reported in (1986) 3 Crimes 40(2) : 1986 All LJ 1341 the Allahabad High Court has held that Section 319(1), Cr. P.C. is applicable only to a person who is not an accused and is not applicable in the case of a person who has already been discharged, and so the power under Section 319, Cr. P.C. cannot be exercised in respect of two women.
11. The learned Counsel for the informant has filed this revision against the said order dt. 7-7-87 saying that the order of discharge is no bar to the exercise of power under Section 319, Cr. P.C. in respect of two women when during the course of trial the evidence shows the commission of the offences by the two women. Further from the evidence produced by the prosecution a case against the women accused is made out and the Court below has erred in not exercising the jurisdiction vested in it. Learned Counsel for the two women has argued that this application of the petitioner is not maintainable as she has got no locus standi, that after the order of discharge neither the State nor the complainant filed any revision against the same, so it will operate as a bar to the exercise of the jurisdiction under Section 319, Cr. P.C. and that from the evidence led by the prosecution no case for exercise of jurisdiction is made out.
12. The contention of locus standi of the complainant to file this revision before this Court does not appear to be made out by the provisions of law. Section 190 of the Code gives a right to any one to file a complaint and the Magistrate is to take cognizance of the same if conditions are made out. A complainant is really the person who suffer from the act of an accused and to deny a person aggrieved to approach a court of law will be negation of one of the fundamental principles on which the edifice of criminal jurisprudence and justice stands. It is through the agency of the State that one approaches the Court for the punishment of the offender and for the best interest of the society, but in doing so, a complainant does not lose his/her identity and position. Section 157(2) of the Code provides that the investigating officer is to notify to the informant that he will not investigate the case or will not cause it to be investigated. Similarly Section 173(2)(ii) also requires the police to inform the informant about the result of the investigation. It is all because the informant is the person who sets the machinery of the State in motion for punishment of the person who has caused offence and it is his this interest which continues till the finale of the getting punishment procedures. Thus a complainant has locus standi. Two recent pronouncements of the Supreme Court have set at naught the locus standi objections of the accused.
In the case of A.R. Antulay v. Ramdas Sriniwas Nayak it has been observed at page 723 (AIR) (at p. 652 of Cri LJ) in para 6:
While Section 190 of the Cri.P.C. permits any one to approach the Magistrate with a complaint, it does not prescribe any qualification the complainant is required to fulfil to be eligible to file a complaint. But where an eligibility criterion for a complainant is contemplated specific provisions have been made such as to be found in Sections 195 to 199 of the Cr. P.C. These specific provisions clearly indicate that in the absence of any such statutory provision, locus standi of a complainant is a concept foreign to criminal jurisprudence. In other words, the principle that anyone can set or put the criminal law in motion remains intact unless contra-indicated by a statutory provision. This general principle of nearly universal application is founded on a policy that an offence i.e. an act or omission made punishable by any law for the time being in force (See Section 2(n) Cr. P.C.) is not merely an offence committed in relation to the person who suffers harm but is also an offence against society. The society for its orderly and peaceful development is interested in the punishment of the offender. Therefore, prosecution for serious offences is undertaken in the name of the State representing the people which would exclude any element of private vendetta or vengeance. If such is the public policy underlying penal statutes, who brings an act or omission made punishable by law to the notice of the authority competent to deal with it, is immaterial and irrelevant unless the statute indicates to the contrary. Punishment of the offender in the interest of the society being one of the objects behind penal statutes enacted for larger good of the society, right to initiate proceedings cannot be whittled down, circumscribed or fettered by putting it into a straight-jacket formula of locus standi unknown to criminal jurisprudence, save and except specific statutory exception.
In the case of Bhagwant Singh v. Commr. of Police it has been said:
But if the Magistrate decides that there is no sufficient ground for proceeding further and drops the proceeding or takes the view that though there is sufficient ground for proceeding against some, there is no sufficient ground for proceeding against others mentioned in the First Information Report, the informant would certainly be prejudiced because the First Information Report lodged by him would have failed of its purpose, wholly or in part. Moreover, when the interest of the informant in prompt and effective action being taken on the First Information Report lodged by him is clearly recognised by the provisions contained in Sub-section (2) of Section 154, Sub-section (2) of Section 157 and Sub-section (2)(ii) of Section 173, it must be presumed that the informant would equally be interested in seeing that the Magistrate takes cognizance of the offence and issues process, because that would be culmination of the First Information Report lodged by him. There can, therefore, be no doubt that when, on a consideration of the report made by the officer in charge of a police station under Sub-section (2)(i) of Section 173, the Magistrate is not inclined to take cognizance of the offence and issue process, the informant must be given an opportunity of being heard so that he can make his submissions to persuade the Magistrate to take cognizance of the offence and issue process. We are accordingly of the view that in a case where the Magistrate to whom a report is forwarded under Sub-section (2)(i) of Section 173 decides not to take cognizance of the offence and to drop the proceedings or takes the view that there is no sufficient ground for proceeding against some of the persons mentioned in the First Information Report, the Magistrate must give notice to the informant and provide him an opportunity to be heard at the time of consideration of the report.
Thus the contention of the learned Counsel for the other side about the non-maintainability of this application is untenable.
13. As regards the contention that the two women have been discharged and no revision has been filed, it is to be seen as to what is the effect of discharged. In the case of R.S. Nayak v. A.R. Antulay the law about the discharge has been discussed in the following words in para 44:
The Cr. P.C. contemplates discharge of the accused by the Court of Session under Section 227 in case triable by it, cases instituted upon a police report are covered by Section 239 and cases instituted otherwise than on police report are dealt with in Section 245. The three Section 2s contain somewhat different provisions in regard to discharge of the accused. Under Section 227 the trial Judge is required to discharge the accused if he considers that there is not sufficient ground for proceeding against the accused Obligation to discharge the accused under Section 239 arises when "the Magistrate considers the charge against the accused to be groundless." The power to discharge is exercisable under Section 245(1) when "the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction.... It is a fact that Sections 227 and 239 provide for discharge being ordered before the recording of evidence and the consideration as to whether charge has to be framed or not is required to be made on the basis of the record of the case, including documents and oral hearing of the accused and the prosecution or the police report, the documents sent along with it and examination of the accused and after affording an opportunity to the two parties to be heard. The stage for discharge under Section 245, on the other hand, is reached only after the evidence referred to in Section 244 has been taken. Notwithstanding this difference in the position there is no scope for doubt that the stage at which the Magistrate is required to consider the question of framing of the charge under Section 245(1) is a preliminary one and the test of "prima facie" case has to be applied. In spite of the difference in the language of the three . Section 2s, the legal position is that if the trial , Court is satisfied that a prima facie case is made out, charge has to be framed.
Thus the power of framing of the charge and also discharge of the accused, if no case is made out, vests in the Magisterial Courts as well as in the Sessions Court. This power is to be exercised in the manner indicated in the case of State of Bihar v. Ramesh Singh . The relevant portion in this judgment is as follows in para 4 at page 2019 (of AIR) : at p. 1607 of Cri LJ:
It is not obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter under Section 227 or Section 228 of the Code. At that stage the Court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial But at the initial stage if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused.... If the evidence which the prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial. An exhaustive list of the circumstances to indicate as to what will lead to one conclusion or the other is neither possible nor advisable. We may just illustrate the difference of the law by one more example. If the scales of pans to the guilt or innocence of the accused are something like even at the conclusion of the trial, then, on the theory of benefit of doubt the case is to end in his acquittal. But if, on the other hand, it is so at the initial stage of making an order under Section 227 or Section 228, then in such a situation ordinarily and generally the order which will have to be made will be one under Section 228 and not under Section 227.
14. In the case of Union of India v. Prafulla Kumar Samal the Supreme Court in para 10 has given out the following principles for framing charge or otherwise:
(1) That the Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out;
(2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial;
(3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused;
(4) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced Court cannot act merely as a post office or a mouth-piece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.
In the case of Supdt. and Remembrancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja it was observed at page 55 (of AIR) : at p. 1339 of Cri LJ (para 18):
It may be remembered that the case was at the stage of framing charges; the prosecution evidence had not yet commenced. The Magistrate had, therefore, to consider the above question on a general. consideration of the materials placed before him by the investigating police officer. At this stage, as was pointed out by this Court in State of Bihar v. Ramesh Singh , the truth, veracity and effect of the evidence which the prosecutor proposes to adduce are not to be meticulously judged. The standard of test, proof and judgment which is to be applied finally before finding the accused guilty or otherwise, is not exactly to be applied at the stage of Section 227 or 228 of the Cri. P.C 1973. At this stage, even a very strong suspicion founded upon materials before the Magistrate, which leads him to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged; may justify the framing of charge against the accused in respect of the commission of that offence.
15. Thus the observations of the Supreme Court can be summed up that before the trial starts a Magistrate and also a Sessions Judge can discharge the accused persons under the provisions of Sections 239, 245 and 227, Cr. P.C. At the time of consideration whether to frame charge or not, the Court is not to consider in detail and weigh in a sensitive balance whether the fact if proved would be compatible with the innocence or guilt of the person accused. The standard of test and judgment which is applied at the final stage of the trial is not to be applied at this stage. The Court is to see only if there is some evidence sufficient for the conviction of the accused Even the strong suspicion on account of which the Court may infer that the case may end in conviction is sufficient for framing the charge. Only a prima facie case is to be seen. The Court is to sift and weigh the evidence for a limited purpose to find out a prima facie case. If there is not even the grave suspicion then the accused is entitled to be discharged. But if grave suspicion is found on materials which may lead to an inference about the guilt of the person accused then the Court may frame charge. If the Court finds prima facie that the prosecution is false, frivolous and vexatious by way of an abuse of the process of the Court or prosecution apparently appears to be without any sanction or without jurisdiction then the Court may give benefit of the same to the person accused. But if the prima facie case is there, the Court cannot have discretion of discharge on the ground that the evidence does not come to the standard of a judgment of the final stage; as at this stage the full evidence does not come before the Court, only the materials collected at the investigation stage and some documents are there and not the examination and cross-examination of the witnesses are there. The matter remains in the stage of enquiry. It is only after the framing of the charge in a warrant case that the trial starts" in which full evidence is led by the parties.
16. A discharge does not amount to acquittal because a discharge is at the stage of enquiry, whereas an acquittal is at the stage of final hearing when the entire evidence is adduced by the parties with examination and cross-examination of the witnesses. A discharge can be by a police officer when he does not send up the accused during the investigation and puts his name in col. 2 of the charge-sheet. An accused can be discharged under Section 203, Cr. P.C. when no prima facie case is made out and the Court does not issue notice. Section 300, Cr. P.C. provides that if a person who has once been convicted or acquitted cannot be tried for the same offence. But this bar does not apply when a complaint is dismissed or accused is discharged as both of them are not acquittal for the purposes of this case.
17. Thus from all these it is clear that a person who has been discharged can be tried again for the same offence and there is no bar to the same. After a discharge a person who was already accused ceases to be an accused as no charge has been framed against him. There are two stages in a proceeding, one is inquiry wherein the Court makes inquiry about the charges levelled against the accused person and in case the Court finds that no charges can be framed then he is discharged and inquiry is over. But if the Court finds that on the materials collected charges can be framed against an accused then charges are framed against him. Then it comes the stage of the trial of the case after the framing of the charge, when evidence is taken, witnesses are examined and cross-examined and the case may end in acquittal or conviction. But definitely at the trial stage there cannot be an order of discharge under Section 227, Cr. P.C. Thus before the framing of the charge there can be discharge and after the framing of the charge and with the start of the trial only an order of conviction or acquittal can be passed.
In the case of Ratilal Bhanji Mithani v. State of Maharashtra AIR 1979 SC 94 at page 100 : 1979 Cri LJ 41 at p. 47 (para 26) the Supreme Court observed:
From the scheme of the provisions noticed above it is clear that in a warrant case instituted otherwise than on a police report 'discharge' or 'acquittal' of accused are distinct concepts applicable to different stages of the proceedings in Court. The legal effect and incidents of 'discharge' and 'acquittal' are also different. An order of discharge in a warrant case instituted on complaint, can be made only after the process has been issued and before the charge is framed, Section 253(1) shows that as a general rule there can be no order of discharge unless the evidence of all the prosecution witnesses has been taken and the Magistrate considers for reasons to be recorded, in the light of the evidence, that no case has been made out. Sub-section (2) which authorises the Magistrate to discharge the accused at any previous stage of the case if he considers the charge to be groundless, is an exception to that rule. A discharge without considering the evidence taken is illegal If a prima facie case is made out the Magistrate must proceed under Section 254 and frame charge against the accused Section 254 shows that a charge can be framed if after taking evidence or at any previous stage, the Magistrate, thinks that there is ground for presuming that the accused has committed an offence triable as a warrant case.
18. But after the charges have been framed against the accused person in a trial and then trial proceeds and if it is found that there are other persons whose participation is made out from the evidence, then can they be made accused? The answer of law is yes as contained in Section 319, Cr. P.C. which reads as follows:
Section 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 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 the witnesses re-heard;
(b) subject to the provisions of Clause (a), the case 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.
19. In the case of Raghubans Dubey v. State of Bihar the Supreme Court in para 9 observed--
In our opinion once cognizance has been taken by the Magistrate, he takes cognizance of an offence and not offenders. Once he takes cognizance of an offence it is his duty to find out who the offenders really are. And once he conies to the conclusion that apart from the persons sent up by the police some other persons are involved, it is his duty to ! proceed against those persons, Summoning of additional accused is part of the proceeding initiated by his taking cognizance of an offence.
In the case of Joginder Singh v. State of Punjab the Supreme Court observed:
A plain reading of Section 319( 1), which occurs in Chap. XXXIV dealing with general provisions as to inquiries and trials, clearly shows that it applies to all the Courts including a Sessions Court and as such a Sessions Court will have the power to add any person, not being the accused before it, but against whom there appears during trial sufficient evidence indicating his involvement in the offence, as an accused and direct him to be tried along with other accused;....
Later in para 8 it was observed:
It will thus appear clear that under Section 193 read with Section 209 of the Code when a case is committed to the Court of Session in respect of an offence the Court of Session takes cognizance of the offence and not of the accused and once the Sessions Court is properly seized of the case as a result of the committal order against some accused the power under Section 319(1) can come into play and such Court can add any person, not an accused before it, as an accused and direct him to be tried along with the other accused for the offence which such added accused appears to have committed from the evidence recorded at the trial....
20. In the case of Municipal Corpn. of Delhi v. Ram Kishan Rohtagi the Supreme Court in para 19 observed;
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.
In the case of Dr. S. S. Khanna v. Chief Secretary, Patna the Supreme Court in para 14 observed:
It is thus clear that it cannot be said that the Magistrate had no power to proceed against the appellant in this case. On looking into the record we are of the view that the Magistrate had good reason to summon the appellant under Section 319 of the Code as it appears from the evidence led at the trial that there was a strong case made out against the appellant for joining him in the criminal case as an accused....
In a full Bench decision of Sheikh Latfur Rahman v. State 1985 Cri LJ 1238 at p. 1241 (Pat) in para 5A it was observed by this Court:
Therefore, it seems to follow from the long line of precedents begining with Raghubans Dubey's case (1967 Cri LJ 1081) that a Magistrate trying a warrant case as also a Court of Session having once validly taken cognizance of the offence on the basis of police report (when considering material before it for framing a charge) is not only entitled but, indeed, duty bound to summon a person as an accused to stand trial before it if it is fully satisfied of the existence of a prima facie case against an additional accused who may not have been sent up as such. To use the language of the Final Court, the summoning of the additional accused is part and parcel of the proceeding initiated by the taking of the cognizance of an offence.
21. In a division Bench decision- The case of Dr. Shamin Ahmad Khan v. State of Bihar 1986 Cri LJ 1383 this Court observed in para 6:
Section 319 does not prescribe that the Court should be convinced or totally satisfied that such a person has committed the offence. It suffices for the exercise of the power that it appears to be so to the Court This aspect has recently come to be considered by the Full Bench in Lallan Singh v. State of Bihar, Cr WJC No. 40 of 1981(R) decided on 13th Dec., 1985 in the context of Section 3(1) of the Bihar Control of Crimes Act, 1981 where similar terminology has been employed. Consequently it has to be held that the legislature in its wisdom has given a wide ranging power to the Court if it only appears that another person has committed such an offence for which he could be tried together on the basis of the evidence recorded in course of the inquiry or trial against such a person.
Thus this power of summoning the additional accused under Section 319, Cr. P.C. is one which is vested not only in the Magistrate but also in the Sessions Judge when during the trial of the case evidence comes before him and from it it appears to him that the person who is not an accused before him has committed an offence, then he can add him. This stage of Section 319, Cr. P.C. is thus quite different from the earlier stages as observed by a full Bench of this Court in Sk. Latfur Rahaman's case (1985 Cri LJ 1238) (supra) in para 13 which is as follows:
Again the earlier provisions of Sections 209, 227, 228, 239 and 240 pertain to the stage before the actual framing of the charge and commencement of the trial and, therefore, operate in a field distinct from that under Section 319.
22. Again a division Bench of this Court in the case of Dr. Shamin Ahamad Khan (1986 Cri LJ 1383) (supra) observed in para 9 at page 1386:
It is significant to notice that Section 319 finds place in Chapter XXIV containing general provision as to inquiry and trial. Consequently, the provisions of Section 319 are equally applicable to trial before a Sessions Court, and this aspect is so well settled by precedents that it could not be challenged by learned Counsel That being so, to read Sections 226 to 228 in solitary exclusion as a bar to summoning the accused persons under Section 319 would be virtually nullifying the same in the context of the trial in the Court of Session. The provisions of Section 319 to my mind are clearly supplementary and complementary to those under Chapter XVIII and both have to be read harmoniously and together. They are not exclusory of each other. Consequently, when in the course of inquiry or trial it appears from the evidence that some other person or persons were also party or privy to the offence and he should be tried together With the accused, the Court has been conferred a wide ranging power to proceed against such a person. The Section 2 also subserves the larger purpose of avoiding multiplicity of trials.
23. Learned Counsel for the opposite parties has raised the contention that the two women (O.Ps. 1 and 2) who have been discharged do not come within the category of the persons who are not an accused in the trial before the Court as these two women have already been accused before the some and though later discharged by the Court For this contention he placed reliance on the observations of a learned single Judge in the case of Radheshyam Mishra(1986 All LJ 1341) (supra) which is as follows (at p. 1342 of All LJ):
It is clearly not applicable to a person who has been an accused in the case and has been discharged by the Court.
As to this contention it has been found above that explanation to Section 300, Cr. P.C. does not bar the prosecution of a person who has been discharged. Further it has been seen that person discharged includes those who are not sent up for trial by the police during investigation, those against whom complaint is dismissed for want of prosecution or there being no sanction or those against whom no charges can be framed by the Magistrate or by a Sessions Judge. As regards the expression in Section 319, Cr. P.C.- 'any person not being the accused', the Courts in India from time to time have been making observations which are relevant to be mentioned hereinafter. In the case of Joginder Singh (1979 Cri LJ 333) (supra) the Supreme Court observed in para 9:
As regards the contention that the phrase "any person not being the accused" occurring in Section 319 excludes from its operation an accused who has been released by the police under Section 169 of the Code and has been shown in column No. 2 of the charge-sheet, the contention has merely to be stated to be rejected. The said expression clearly covers any person who is not being tried already by the Court and the very purpose of enacting such a provision like Section 319(1) clearly shows that even persons who have been dropped by the police during investigation but against whom evidence showing their involvement in the offence comes before the Criminal Court are included in the said expression.
24. In the case of Municipal Corporation of Delhi (1983 Cri LJ 159) (supra) the observations of the Supreme Court in para 19 have been referred to above and the relevant portion of which, for this point is reproduced as follows:
or those who have not been arrayed as accused against whom proceedings have been quashed have also committed the offence....
In the case of Dr. S. S. Khanna (1983 Cri LJ 1044) (supra) it has been observed in para 12 at page 598(of AIR) : at p. 1048 of Cri LJ:
Having regard to the nature of the proceedings under Section 202 of the Code, it may be difficult to hold that there is a legal bar based on the principle of issue estoppel to proceed against a person complained against on the same material if the Court has dismissed a complaint under Section 203. But it is not necessary to express any final opinion on that question since in the instant case, it is seen that the Magistrate decided to take action under Section 319 of the Code on the basis of fresh evidence which was brought on record in the course of the proceedings that took place after the inquiry contemplated under Section 202 of the Code was over and in the course of the trial against Banktesh Prasad. The autre foid principle adumbrated in Section 300 of the Code cannot, however, apply to this case.
Even when an order of the Magistrate declining to issue process under Section 202 is confirmed by a higher Court, the jurisdiction of the Magistrate under Section 319 remains unaffected if other conditions are satisfied.
In the full Bench decision of Sk. Latfur Rahman (1985 Cri LJ 1238) (Pat) (supra) it was observed at page 1243 in para 8:
Nevertheless the police acting wholly arbitrarily chose to send up only one accused for trial The learned Sessions Judge was thus right in his conclusion that there appeared to be absolutely no reason for not sumitting the charge sheet by the police against the three petitioners. To hold in such a situation that if the investigating agency blatantly exonerates an accused person of a heinous crime, the Court of Session itself will be rendered powerless to put such an of fender in the dock at the very opening stage of the trial would, to my mind, only hamper the cause of justice rather than advance it. It is to be borne in mind that herein we are construing the procedural provisions and it is well settled that the procedure is the handmaid of justice and is not to be employed as a road block thereof. Therefore, on the larger canon of construction there appears to be no logic for narrowly construing the statute so as to denude the Court of Session of the power to summon a person to stand his trial at the outset even when wholly convinced of a prima facie case against him on the basis of materials in the final report which is admittedly adequate for framing a charge against the committed accused under Section 228.
25. Besides this a learned single Judge of Gujarat High Court in the case of Mohan Bhai Bhom Raj v. State of Gujarat 1979 Cri LJ 1446 has dealt with this question. In that case the learned Magistrate passed an order discharging accused 2 and 3 and framed charge against accused 1 and 4 for the offence under Sections 78 and 79 of the Trade and Merchandise Marks Act as also under Sections 482, 483, 486 and 488, I.P.C. During the trial of accused Nos. 1 and 4 when the accused 2 and 3 had already been discharged, it appeared to the learned Magistrate from the evidence that the discharged accused 2 appeared to have committed an offence for which he could be tried together with accused 1 and 4. The learned Judge held at page 1449 (para 11):
The learned Magistrate was satisfied from the evidence that the discharged accused No. 2 appeared to have committed an offence for which he could be tried together with accused 1 and 4 against whom the trial was proceeding at that stage; and therefore, it was open to the learned Magistrate as provided in the concluding part of Section 319(1) to proceed against "such person" i.e. a person who was not an accused before the Court in that trial for the offence which he appeared to have committed.
Later, in para 12 it is observed:
It is true, the very person namely accused 2 was also an accused person earlier before the learned Magistrate when the matter was at an inquiry stage, and, after considering the evidence recorded of the prosecution witnesses, the learned Magistrate thought fit to discharge inter alia the said accused acting under the provisions contained in Section 245(1) of the Code. During the stage of that inquiry after his discharge and before the trial commenced, on the termination of the inquiry and oh the framing of the charge against accused 1 and 4, he could not have proceeded against the said accused under Section 319 of the Code, because he would be dealing with the question arising in 'an inquiry' in which, though discharged, the said accused was still an 'accused person'. But that stage having been over as stated above, there was no inquiry before him. The question which arose thereafter before him after the trial had commenced, arose in a 'trial' which was proceeding after the framing of the charge. This was the trial in which accused 1 and 4 were the accused; and discharged accused 2 was not an accused before the learned Magistrate in the said trial which was so proceeding. The said accused would, therefore answer the description of "any person not being the accused" in the said trial and hence he could be proceeded against as provided in Section 319 of the Code.
Later in para 16-
Procedural law makes a distinction by providing in Chap. XIX of the Code two distinct stages in warrant cases instituted otherwise than on a police report, viz. the first stage of inquiry which ends when either the accused is discharged or a charge is framed against him and the second stage of trial which actually commences with the framing of the charge, A conclusion, therefore, would be inescapable that in a trial which has so commenced after the framing of the charge against some of the accused who were put up before the Court at the inquiry stage in which some others were discharged, the Court can, on material available on record, order framing of the charge against the discharged accused also if in the opinion of the Court, it appears from the evidence that such person, who is not an accused person before the Court in the said trial but who may be one of the accused at the stage of inquiry and who was earlier discharged, has committed any offence for which he can be tried together with the other accused against whom the trial was already proceeding.
26. Thus from all these it appears that even a person who has been discharged in any manner as mentioned above comes under the clutches of Section 319, Cr. P.C. if in the opinion of the Magistrate or the Sessions Judge it appears from the evidence during the trial after framing of the charge that the discharged accused has committed the offence. Thus the discharge does not give a benefit to a person even if the discharge has been affirmed by the superior Court or the charge against the said persons has already been quashed. Therefore following the said observations of the Supreme Court referred to above and the Full Bench and Division Bench cases of this Court and agreeing with the findings given by the learned single Judge of the Gujarat High Court I, with great respect and regret, disagree with the above mentioned observations of the learned single Judge in the case of Radhe Shyam Mishra v. State of UP. 1986 All LJ 1341 (supra) and I hold that the Court has got power to proceed Under Section 319, Cr. P.C. against a person even if he has been discharged.
27. Looking to the impugned order it appears that the Court below was obsessed with the view that the earlier order of discharge and that too not being challenged by the complainant or the State in higher courts and so if the Magistrate thought that if he would exercise power under Section 319, Cr. P.C. then he would be reviewing, revising the order of discharge dt. 18-12-85. This view of the learned Addl. Sessions Judge on the basis of the above mentioned discussion is not correct He has, therefore, has failed to exercise the jurisdiction vested in him.
28. In the result this application is allowed. The order of the learned Additional Sessions Judge dt. 7-7-87 is set aside. He is directed to pass suitable orders in accordance with law considering the materials available before him as he is the sole Judge to consider the evidence when the matter comes up again. If the Court below after considering the entire evidence finds that the two women are to be impleaded then they may be impleaded and tried in accordance with law. Let the lower Court's records be sent to the Court below as early as possible for disposal of the case in accordance with law.