Page No.# 1/9 GAHC010130582024 2025:GAU-AS:5430 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.Rev.P./250/2024 OSMAN GONI @ OSMAN ALI AND 7 ORS S/O LATE ABDUL KADER, R/O BAPUJI NAGAR, WARD NO. 1, P.S.- GOALPARA, DIST- GOALPARA, ASSAM 2: ABDUL BATEN @ BATEN ALI S/O LATE ABDUL KADER R/O VILL-BALADMARI CHAR PART-II P.O.-BALADMARI CHAR P.S.-GOALPARA DIST- GOALPARA ASSAM 3: SAHANUR ISLAM S/O LATE ABDUL KADER R/O VILL-BALADMARI CHAR PART-II P.O.-BALADMARI CHAR P.S.-GOALPARA DIST- GOALPARA ASSAM 4: TOROP ALI S/O LATE MD. EIBOR ALI R/O VILL-BALADMARI CHAR PART-II P.O.-BALADMARI CHAR P.S.-GOALPARA DIST- GOALPARA ASSAM 5: ASADUL ALI S/O MOKROM ALI R/O VILL-BALADMARI CHAR PART-II P.O.-BALADMARI CHAR P.S.-GOALPARA DIST- GOALPARA Page No.# 2/9 ASSAM 6: DELBOR ALI S/O JOBED ALI R/O VILL-BALADMARI CHAR PART-II P.O.-BALADMARI CHAR P.S.-GOALPARA DIST- GOALPARA ASSAM 7: SAMAD ALI S/O LATE ABDUL HAMID R/O VILL-BALADMARI CHAR PART-II P.O.-BALADMARI CHAR P.S.-GOALPARA DIST- GOALPARA ASSAM 8: ROSHID ALI S/O LATE ABDUL HAMID R/O VILL-BALADMARI CHAR PART-II P.O.-BALADMARI CHAR P.S.-GOALPARA DIST- GOALPARA ASSA VERSUS THE STATE OF ASSAM AND ANR REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM 2:JOYNAL ALI S/O SELIM ALI R/O VILL- NO. 2 BALADMARI CHAR P.O. AND P.S.-GOALPARA DIST- GOALPARA ASSA Advocate for the Petitioner : MRS. B GOGOI, MS M BORAH Advocate for the Respondent : PP, ASSAM, Page No.# 3/9 BEFORE HONOURABLE MRS. JUSTICE YARENJUNGLA LONGKUMER ORDER 02/05/2025 This application has been filed under Section 401 r/w 482 of the CrPC. 2. The petitioner is represented by learned counsel, Mr. M. K. Sarma. The petitioner has challenged the order dated 26.04.2025 passed in Section Case No. 139/2022 passed by the learned Addl. Sessions Judge, Goalpara, on the grounds that the order dated 26.04.2024 is in violation of principles of natural justice and the same was passed without giving any opportunity of being heard to the petitioners. It is also submitted that by passing impugned order dated 26.04.2024 under Section 319 CrPC, the learned trial court has added the petitioners as accused person and issued summons to them. 3. It is submitted by the learned counsel for the petitioner that no sufficient and cogent reasons were assigned by the court before passing the order under Section 319 CrPC. Learned counsel for the petitioner has submitted that the impugned Order dated 26.04.2024 cannot be treated as an interlocutory order, however, it is an intermediate order and therefore, revision lies before this Court. The learned counsel for the petitioner has relied on the case of AMAR NATH AND OTHERS VERSUS STATE OF HARYANA AND ANOTEHR reported in (1997) 4SCC 139 to support his contention that orders which affect or adjudicate the rights of the accused or a particular aspects of the trial cannot be said to be a interlocutory order so as to be outside the purview of the Page No.# 4/9 revisional jurisdiction of the High Court. Learned counsel has submitted that he was not an accused and he was not on trial before the learned court below, but the impugned order has affected his right and he is compelled to face the trial and therefore the impugned order cannot be held to be a interlocutory order but it is one which has decided a serious question as to right of the petitioner to be put on trial. The petitioner has also relied on the cases of GIRISH KUMAR SUNEJA VERSUS CENTRAL BUREAU OF INVESTIGATION reported in (2017) 14 SCC 809, Honnaiah T.H. Versus State of Karnataka and others reported in 2022 Supreme Court (SC) 876; smt PARMESHWARI DEVI VERSUS THE STATE AND ANOTHER reported in (1977) 1 SCC 169, and the case of MADHU LIMAYE VERSUS THE STATE OF MAHARASHTRA reported in (1977) 4SCC 551 in order to support his contention that the impugned order dated 26.04.2024 is not interlocutory order but it is an intermediate order by which his right has been affected and therefore, submits that the revision petition can lie before this Court. 4. Coming to the merit of the case the learned counsel for the petitioner has relied on the case of MOHD SHAFI VERSUS MOHD. RAFIQ AND ANOTHER in (2017) 14SCC 544 wherein the Hon’ble Supreme Court has stated that before a court exercises its discretionary jurisdiction in terms of Section 319 of the CrPC, the court must arrived at the satisfaction that there exist a possibility that the accused so summoned is in all likelihood would be convicted. Such satisfaction can be arrived at inter allia upon completion of the cross examination of the said witness. Learned counsel also relies on the case of Veeramadaiah Alias Mahadevaiah And Other Versus State of Karnataka reported in Page No.# 5/9 2006 (3) Kar. L. J. 418 wherein the High Court of Karnataka had come to a conclusion that unless the prosecution witness are cross examined it cannot be said that their evidence is fully recorded. And therefore, the application under Section 319 of the CrPC could not have been allowed before the witnesses were cross examined. 5. Learned counsel for the petitioner therefore submits that in the present case also, the learned trial court had not cross examined the PW-1. However, the PW-1 was examined-in-chief and immediately thereafter the order dated 26.04.2024 was passed without cross examining the PW-1, and therefore, the order dated 26.04.2024 is bad in law and needs to be quashed and set aside. 6. Learned Additional P.P., Mr. J. Chutia appears for the State respondent and has raise a preliminary objection regarding the maintainability of the present petition as it has been filed under Section 401 r/w section 482 of the CrPC. The learned Additional P.P. has stated that when a revision lies before this Court against a certain order, the petition under Section 482 CrPC is not maintainable. Learned Addl. P.P. has relied on the case of Mohit Alias Sonu and Another Versus State of Uttar Pradesh and Another reported in (2013) 7SCC 789. In this Case the hon’ble Supreme Court has stated that : “28. So far as the inherent power of the High Court as contained in Section 482 CrPC is concerned, the law in this regard is set at rest by this Court in a catena of decisions. However, we would like to reiterate that when an order, not interlocutory in nature, can be assailed in the High Court in revisional jurisdiction, then there should be a bar in Page No.# 6/9 invoking the inherent jurisdiction of the High Court. In other words, inherent power of the Court can be exercised when there is no remedy provided in the Code of Criminal Procedure for redressal of the grievance. It is well settled that the inherent power of the Court can ordinarily be exercised when there is no express provision in the Code under which order impugned can be challenged.” 7. Relying on the case of Mohit Alias Sonu and Another Versus State of Uttar Pradesh (Supra) learned Additional P.P. submits that the impugned Order is not interlocutory in another and therefore, the present petitioner could have assailed the same before this Court in revisional jurisdiction under Section 397 or 401 of the CrPC. And therefore there is a bar in invoking the inherent jurisdiction of this Court under Section 482 CrPC when there is a remedy provided in the CrPC. It is well settled that only when there is no express provision in the CrPC the inherent power under Section 482 CrPC can be resorted to. 8. In respect of the merit of the case, the learned Additional P.P. submits that the question regarding the stage at which power under 319 CrPC can be exercised and where the word “evidence” used in section 319 CrPC has been used in comprehensive sense and includes evidence collected during investigation or the word “evidence” is limited to the evidence recorded till trial, is no longer res-integra and the matter has been laid to rest by the hon’ble Supreme Court in the case of Hardeep Singh Versus State of Punjab and others reported in (2014) 3SCC 92, wherein a constitution bench of the hon’ble Apex Court has laid down that under 319 CrPC a person against whom materials is disclosed is only summoned to face the trial and in such an events under Section 319 (4) CrPC the proceeding Page No.# 7/9 against such person is to commence from the stage of taking cognizance, and the court need not wait for the evidence against the accused proposed to be summoned to be tested by cross examination. The Hon’ble Apex Court also observed that; “…cognizance of an offence can be taken against a person not named as an accused but against whom materials are available from the papers filed by the Police after completion of the investigation. Such cognizance can be taken under Section 193 CrPC and Sessions Judge need not wait till evidence under Section 319 CrPC becomes available for summoning additional accused”. Learned Additional P.P. also relied on the case of RAJESH AND OTHERS VERSUS STATE OF HARYANA reported in (2019) 6 SCC 368, where the constitution bench judgment of Hardeep Singh versus Start of Punjab and others(supra) was relied upon. 9. Learned Additional P.P. accordingly, submits that there is no infirmity in the order dated 26.04.2024 as PW-1 had already been examined and materials against the petitioners was found in the deposition of the PW-1 and therefore the learned trial court had rightly passed the order under Section 319 of CrPC. Learned Additional P.P. therefore prays that the present petition may be dismissed. 10.I have considered the submission of the opposing counsels and perused the records available before this Court. This court has also considered the question of maintainability as raised by the Additional P.P. 11. The court is within its powers to treat the present petition as a Revision under Section 401 of the CrPC, without going into the technical Page No.# 8/9 errors. This petition is therefore taken up as a revision petition against the order dated 26.04.2024 passed by the Additional Sessions Judge, Goalpara. 12. This Court has also perused the order dated 09.11.2023 and order dated 26.04.2024 passed by the learned trial court. On 09.11.2023 Two PWs were examined and the informant was examined as PW 1. In the order dated 26.04.2024, the learned trial court has observed that the PW 1 specifically stated in his examination-in-chief that some other accused persons Osman Ali and others were also involved in the occurrence. And without cross examining the PW 1, the summon have been issued to the accused persons/the petitioners, under Section 319 of CrPC. Learned counsel for the petitioner had referred to the decision of the Karnataka High Court in the Veeramadaiah Alias Mahadevaiah And Other Versus State of Karnataka (Supra) and the case of Mohit Alias Sonu and Another Versus State of Uttar Pradesh (Supra) wherein it was observed that the proceedings in 319 CrPC could not have been taken up against the accused persons without cross-examination of the witness. However, it is pertinent to note herein that the hon’ble Supreme Court through a Constitution bench in the case of Hardeep Singh Versus State of Punjab and others (Supra) has expounded in detail about when the power under Section 319 CrPC can be exercised. It has been succinctly pointed out the court need not wait for the evidence against the accused proposed to be summoned to be tested by cross examination. In fact the hon’ble Apex Court has further stated that the court need not wait till “evidence” under Section 319 CrPC becomes available for summoning additional accused and that cognizance of offences can be taken against Page No.# 9/9 the person not named as an accused but against whom materials are available from the police papers upon completion of investigation. 13.In the light of the law laid down in the case of Hardeep Singh (Supra) this Court is of the view that the learned trial court has not committed any illegality or irregularity in passing the impugned order dated 26.04.2024. 14. The petition is therefore dismissed. 15. Petition stands disposed of accordingly. No order as to costs. JUDGE Comparing Assistant