Section 319 Cr.P.C.; Dr. Aloke Kumar Jaldata Vs. State of West Bengal [Calcutta High Court, 18-05-2016]

Criminal P.C. 1973 – Section 319 – Power to proceed against other persons appearing to be guilty of offence – 3 different classes of persons against whom the power under Section 319 Cr.P.C. could be exercised – (1) A person not named in the FIR or (2) A person though named in the FIR but have not been charge-sheeted or (3) 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 – insofar as an accused who has been discharged is concerned the requirement of Section 300 and 398 Cr.P.C. has to be complied with before he could be summoned afresh.

Section 319 Cr.P.C.


IN THE HIGH COURT AT CALCUTTA

CRIMINAL REVISIONAL JURISDICTION APPELLATE SIDE

The Hon’ble Justice Malay Marut Banerjee

Judgement Date : 18.05.2016

C.R.R. 3558 of 2009

Dr. Aloke Kumar Jaldata Vs. State of West Bengal & Ors.

For the Petitioner : Mr. Sekhar Basu, Ld. Sr. Adv., Mr. Soubhik Mitter, Mr. Ranadeb Sengupta; For the State : Mr. Manjit Singh, Ld. P.P. Mrs. Debjani Sahu.

M.M. Banerjee, J.:

1. The opposite party no.2 herein filed a complaint in the Court of the Ld. Addl. Chief Judicial Magistrate, Diamond Harbour on 26th July, 2007 with prayer for a direction upon the police to register a case under Section 156(3) Cr.P.C. Such prayer was allowed and police registered F.I.R. no. 82 of 2007 starting a case under Section 376/313/317 and 120B I.P.C. against accused Pratap Paik and Dr. Aloke Jaldata. It may be mentioned that Dr. Aloke Jaldata is the petitioner in the revisional application.

2. It further appears that on completion of investigation police submitted charge-sheet underSection 376 I.P.C. against accused Pratap Paik. The other accused Dr. Aloke Jaldata was not sent up in the charge-sheet, rather the I.O. made a prayer for his discharge. It also appears that although the opposite party no.1 hereinafter referred to as the prosecutrix initially filed a ‘Naraji’ petition but that was subsequently not pressed. Be that as it may, the case was committed to the Court of Sessions. Charge under Section 376 I.P.C. was framed and the prosecutrix gave evidence as P.W.1 in the Court of the Ld. Addl. District & Sessions Judge, Fast Track, 3rd Court, Diamond Harbour in Sessions Trial No. 10(7) of 2009. On the prayer of the prosecution to proceed against the present revisionist/petitioner under

Section 319 Cr.P.C.,

the Ld. Court below in terms of the impugned order dated 07.09.2009 passed the following order:

“Heard. Perused the evidence adduced by victim, i.e., P.W.1. It appears from the evidence of this victim that this Doctor had terminated her pregnancy without taking her consent so this is a fit case where the prayer of the prosecution to issue warrant of arrest should be allowed”.

3. Aggrieved by dissatisfied with the aforesaid order the revisionist/petitioner Dr. Aloke Jaldata has filed this revisional application for setting aside the impugned order on various grounds but the Ld. Senior Advocate Mr. Sekhar Basu appearing for the revisionist/petitioner argued that the matter veers round a question of law as to whether a person who was subjected to investigation and was not sent up in the charge-sheet or in other words, discharged from the case can be proceeded against under Section 319 Cr.P.C. Mr. Basu, the Ld. Senior Counsel argued that although there is no specific order made by the Ld. Magistrate taking cognizance of the offence or committing the case to the Court of Session for discharge of the revisionist/petitioner but when the ‘Naraji’ petition filed on behalf of the prosecutrix was rejected as being not pressed that is tantamount to an order of discharge and so the revisionist/petitioner could not be proceeded against in terms of the provision under Section 319 Cr.P.C.

4. Mr. Basu in support of his contention, first of all, relied on a decision in the case of

Sohanlal & Ors. vs. State of Rajasthan reported in (1990) 4 Supreme Court Cases 580

where it was held:-

“There is need for caution in resorting to Section 319. Once a person is found to have been the accused in the case he goes out of the reach of Section 319. Whether he can be dealt with under any other provisions of the Code is a different question. In the case of the accused who has been discharged under the relevant provisions of the Code, the nature of finality to such order and the resultant protection of the persons discharged subject to revision under Section 398 of the Code may not be lost sight of. This should be so because the complainant’s desire for vengeance has to be tempered with. Section 319 has to be read in consonance with Section 398”.

5. Mr. Basu, the Ld. Senior Counsel further argued that a Constitution Bench of the Hon’ble Apex Court has also held the same view. The Ld. Senior Counsel relying on the case of

Hardeep Singh vs. State of Punjab & Ors reported in JT 2014(1) SC 412

laid emphasis on the concluding lines of that decision which is quoted as under:-

“Q. V Does the power under Section 319 Cr.P.C. extend to persons not named in the FIR or named in the FIR but not charge- sheeted or who have been discharged?

A. A person not named in the FIR or a person though named in the FIR but has not been charge-sheeted 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”.

6. It was argued by Mr. Basu that in view of the ratio decided in the aforesaid decisions the revisionist/ petitioner could not be proceeded against under Section 319 Cr.P.C. and the impugned order is liable to be set aside.

7. The Ld. Public Prosecutor although opposed the prayer for setting aside the revisional application contending that in view of the clear and unambiguous testimony of the prosecutrix the Ld. Court below quite rightly passed the impugned order but he conceded that the rejection of the ‘Naraji’ petition being not pressed is tantamount to discharge of the revisionist/petitioner from this case.

8. I have looked into the Lower Court Records including the depositions of the prosecutrix. Since argument has been advanced with regard to the position of law governing the field I have gone through the decisions relied on by the Ld. Senior Counsel appearing for the revisionist/petitioner. The Constitution Bench of the Hon’ble Apex Court in Hardeep Singh’s case elaborately discussed the law governing the field in relation to Section 319 Cr.P.C. and it would only be wise and prudent to reproduce paragraphs 100 to 106 of the judgment and, of course, question no. V and answer thereto given by the Constitution Bench at the concluding lines of the judgment.

“100. In