KISHUN SINGH AND ORS VS STATE OF BIHAR

FACT OF THE CASE

• On 27/02/1990 twenty people including the appellants attacked the informant’s brother with sticks, etc.
• A complaint was filed on the same day in which all the twenty persons were named as assailants and the injured person deid on the next day.
• The statements of informants and others were recorded in the course of investigation and charge sheet was forwarded to the court of magistrate but there were only eighteen persons named exclude the two appellants, in the opinion of the investigation officer there is no involvement of the appellants in the commission of the crime.
• An application was presented under section 319 when the matter came before the session judge praying to include two appellants also as the accused then a show cause notice issued to the appellants and they submitted that they were not present at the place of occurrence.
• The plea was rejected by the session judge and impleaded them as co-accused.
• This is done before the commencement trail. Then the appellants’ revision filed before the high court was dismissed. 
• The appellants moved this court by special leave under article 136 of the constitution of India. 

ISSUE RAISED

• Whether a court of session to which a case is committed for trial by a magistrate can, summon a person not named in the police report presented under section 173 of the code of criminal procedure, 1973 to stand trial along with those already named therein, in exercise of power conferred by section 319 of the code?

CONTENTIONS OF THE PETITIONERS

• contending that unless evidence was recorded during the course of trail, the session judge had no jurisdiction 

CONTENTIONS OF THE RESPONDENTS

• In the section 319 there can be no doubt that it must appear from the evidence tendered in the course of any enquiry or trial that any person not being the accused has committed any offence for which he could be tried together with the accused.

REASONS OF JUDGEMENT

While as are in agreement with the submission of the learned counsel for the appellants that the stage of trial exercise of power under section 319 of the code had not reached, in as much as,the trial had not commenced and evidence was not led ,since the court of session had the power under section 193 of session had the power under section 193 of the code to summon the appellants as their involvement in the commission of the crime prima facie appeared from the record of the case, the court don’t see no reason to interfere with the impugned order as it is well-settled that once under it is found that the power exist the exercise of power under a wrong provision will not render the order illegal or invalid.

JUDGEMENT

The reasons stated above the appeal was dismissed.

CONCLUSION

The informant’s brother was attacked by twenty persons including the appellants then the brother died but on the charge sheet there the appellants was excluded. So the informant placed an application in front of court to include as co-accused in that case and that application was passed by the court.  The appellants moved against the order at last the appeal was dismissed

REFERENCE

https://indiankanoon.org/doc/1383725/

SNEHA C, THIRD SEM, GOVERNMENT LAW COLLEGE THRISSUR, INTERN ,LEGAL VIDHYA

Admin