Aleemuddin and others vs State of U.P. and another

Mrs. Jayashree Tiwari, J.

(1) Case has been called out in the revised list. Nobody appeared to press this revision except learned AGA.

The present criminal revision has been filed against the order dated 12.1.2001 passed by the IXth Additional Sessions Judge, Moradabad in Sessions Trial No. 1095 of 1998 (State of U.P. Vs. Maqsood and others).

In short, the contention of the revisionist is that the learned lower court was not authorized in law to summon the accused on the basis of application given under Section 319 Cr.P.C. It is contended that the Section 319 Cr.P.C. is available against a person where the person is not an accused in the case and not where a person who is accused in the first information report and after investigation, he has not been charged of the offence.

It is contended that the final report in favour of the revisionist has been submitted by the police and remaining two other accused persons were chargesheeted and thus the learned lower court has illegally summoned the accused on the application under Section 319 Cr.P.C.

In this connection, it will be appropriate to go through the provisions as contained in Section 319 Cr.P.C. which lays down as follows:

Section 319. Power to proceed against other persons appearing to be guily of offence: (1) Where, in the course of any inquiry into, or trial or, 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 the inquiry into, or trial of, the offence which he appears to have committed.

(4) Where the Court proceeds against any person under subSection (1) then

(a) the proceeding in respect of such person shall be commenced afresh, any the witnesses reheard;

(b) subject to 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 which the inquiry or trial was commenced.

In the light of the provisions as annunciated under Section 319 Cr.P.C., it is provided that if in the course of enquiry or trial, any person who is not being accused but from the material evidence given by the witness, it appears that such a person has committed an offence, the court has power and the court may proceed against such person for the offence which he appears to have committed.

The contention as raised by the accused person is that in the first information report, revisionist was alleged to have committed a cognizable offence and regarding the same, information was given to concerned police station by way of first information report by lodging a first information report against a person of having committed a cognizable offence which is given to the officer incharge of the Police Station and on the basis of that information, an investigation or enquiry is conducted and it is only after completion of the enquiry/ investigation that a chargesheet is submitted against the person under Section 170 Cr.P.C. when evidence is found sufficient, the cases are sent to the learned Magistrate having jurisdiction, he will forward the accused under custody to a Magistrate empowered to take cognizance upon a police report and to try the accused or commit him for trial......................

The contention of the revisionist is that since allegations were made against the present revisionist in the first information report and Investigating Officer did not charge him in the chargesheet on whatever grounds so the Magistrate at the time of evidence cannot summon him again. In this connection, it is worthwhile considerable that the argument advanced by the learned counsel for the revisionist appears to be erroneous and misconceived. By raising a contention of committing a cognizable offence by a person in the first information report, he cannot be treated to be an accused persons. It is only after the investigation is completed and a chargesheet is submitted against the persons then they can be treated as accused persons.

The contentions raised in the first information report are not substantial piece of evidence and they have to be investigated and subsequently tried by evidence before the Court. Under the scheme of Section 319 Cr.P.C., if no charge sheet has been submitted against a person who though has committed a cognizable offence and if in the evidence of the witnesses examined in the court, such sufficient evidence is produced that it appears to the Court from the evidence that the person has committed an offence in that case. The Court has power to proceed against such person for the offence for which he appears to have committed.

Contentions are that the allegation was made against the revisionist in the first information report which was not substantiated during the course of investigation and no chargesheet was filed against the accused, in that circumstances, Magistrate is not empowered to proceed as provided under Section 319 Cr.P.C. will create a havoc and it will not be possible to check the actions or omissions of the Police, if this contention is accepted. The contention as raised is therefore, apparently, not in consonance with law as laid down in the Section 319 Cr.P.C. and in these circumstances, the contention of the revisionist is not acceptable.

It is apparent from the charge sheet that though averment of allegations have been made against the revisionist in the first information report but he was not chargesheeted. In the chargesheet he was not made an accused. During the course of the trial, when the evidence proceeded the statement of the prosecutrix clearly exhibited that the revisionist appears to have committed an offence as alleged and on the basis of that evidence, he can be tried together with the remaining accused, the court may proceed against such person and a perusal of the order shows that the court has considered the evidence given by the prosecutrix and then on the basis of that evidence, it appeared to the lower court that revisionist has committed has committed any offence and then he legally proceeded in accordance with the provision as annunciated in Section 319 Cr.P.C.

A bare perusal of the order indicates that prima facie no error or illegality has been committed by the learned lower court while passing the order on the application under Section 319 Cr.P.C.

So far as the question of discussion of documents produced by the respondent accused is concerned, it is worthwhile to note that at this stage of the proceedings, the defence evidence cannot be considered when the charge has been framed and trial has proceeded. After framing of the charge, the evidence of prosecution witness will proceed and after the conclusion of the prosecution evidence, the statement of accused shall be recorded under Section 313 Cr.P.C. and if he so wants the defence evidence will be taken, so the opportunity available for the revisionist is at the stage of statements under Section 313 Cr.P.C. as also while adducing the defence evidence.

Considering the entire circumstances in toto, it comes out that the revision has no force in itself and the argument advanced by the learned counsel has not substantiated by the legal provisions

With the above observations, the present criminal is dismissed.