@JUDGMENTTAG-ORDER
S.J. Mukhopadhaya, A.C.J.
1. This application u/s 482 of Cr PC has been preferred by the petitioner against the order dated 13th February, 2001 passed by the learned Chief
Judicial Magistrate, Dumka, whereby cognizance of offence under Sections 147: 148: 448: 341: 323: 324: 307 and 379 of the Indian Penal Code
has been taken against the accused persons including the petitioner.
2. It appears that on the basis of the fardbeyan of Smt. Sati Devi recorded on 16th October, 2000 at 9.30 p.m. at Dumka (T) Police Station,
Ramgarh P.S. Case No. 89/2000 corresponding to G.R. No. 984/2000 dated 18th October, 2000 was instituted under Sections 147: 148: 448:
341: 323: 324: 307 and 379 of the Indian Penal Code against several accused persons including the petitioner. In the said far dbeyan, the
informant alleged that on 16th October, 2000 at 1.30 p.m. she along with her sister-in-laws (Gotni) Paro Devi; (Nanad) Sabni Mosmat and her
daughterin-law (Phool Kumari) were in the house! All of a sudden, her relatives (Gotiyas), the accused persons including the petitioner entered into
her house and started abusing and assaulted with fists and slaps, lathi, danda and rod, as a result of which, her sister-in-laws, namely, Paro Devi,
Sabri Mosmat and daughter-in-law, Phool Kumari came for her rescue, but they were also assaulted. Accused Satan Mandal ordered to kill them,
whereupon Paro Devi was attempted to kill and Ghanshyam shot an arrow which injured Paro Devi on her left hand and she fell down. On raising
alarm, the people of the locality gathered. While fleeing away, accused persons also took away some of the utensils and silver chain.
3. According to the petitioner, after investigation, charge- sheet was submitted and all the accused persons were forwarded for trial under the
aforesaid sections excluding petitioner Radhey Shyam Mandal @ Bablu Mandal who was not sent up as per the charge-sheet. Thereafter, the
learned Chief Judicial Magistrate, Dumka took cog- nizance by order dated 13th February, 2001 under Sections 147: 148: 448: 341: 323: 324,
and 379 of the Indian Penal Code against the accused persons including the petitioner.
4. Counsel for the petitioner submitted that there was no material against the petitioner and thereby, there was no occasion to take cognizance
against him nor the C. J.M had jurisdiction to take cognizance, he having not sent up for trial. It was also submitted that the petitioner, a military
personnel in the Border Security Force was posted at Jalpaiguri at the relevant date of alleged occurrence and he has been falsely implicated in the
case.
5. It is a settled law that if an accused is not sent up by the police for trial on the ground that no case is made out against him only Sessions Court
can summon the person left by the I.O. in the charge-sheet, if the Sessions Court finds that prima facie case is made out against such person as
enunciated u/s 193, Cr PC. The trial Court can also take step u/s 319, Cr PC to summons such persons if there is evidence collected during trial.
6. In the present case, admittedly, the petitioner was not sent up for trial as I.O. found no case made out against him. In such circumstances, it was
incumbent upon the Magistrate before taking cognizance for the offence alleged against him to notice him and also give him opportunity to be
heard. But it has not been complied in the present case, as alleged by the petitioner and in that view of the matter the Court below having
committed error in taking cognizance, the impugned order dated 13th February, 2001 passed by the Chief Judicial Magistrate, Dumka cannot be
sustainable. The said order so far as it relates to petitioner is, accordingly, quashed.
7. However, it is made clear that if an accused is not sent up by the Police for trial, such person does not amount to discharge, in the eye of law,
but can be summoned to face trial if his involvement/indulgence is found during trial by the Court as laid down u/s 319, Cr PC.
8. This application is, accordingly, allowed.