Aneeta vs State of U.P. and Another

Kant Tripathi, J.—Heard the learned Counsel for the revisionist and the learned A.G.A. for the State and perused the record.

The revisionist Smt. Aneeta has preferred this revision against the order dated 27.7.2009 passed by the Additional Sessions Judge, Court No. 7, Badaun in S.T. No. 583 of 2007, whereby the learned Additional Sessions Judge has summoned the revisionist u/s 319, Code of Criminal Procedure to face trial for the offence u/s 307 read with Section 34, I.P.C. alongwith other accused.

The learned Counsel for the revisionist submitted that the impugned order is based on the statement of P.W. 1 Ramesh Chandra who was examined during the trial but was not cross-examined. The learned Additional Sessions Judge placing reliance on the statement of P.W. 1 Ramesh Chandra recorded during the examination-in-chief, has passed the impugned order. It was further submitted that the summoning order could be passed u/s 319, Code of Criminal Procedure only after cross-examination of the witnesses. In this connection, the learned Counsel for the revisionist placed reliance on Mohd. Shafi v. Mohd. Rafiq and Anr. (XVIII)2007 ACC 254 : 2007 (2) ACR 2268 (SC). In that case the Apex Court has held that before a Court exercise its discretionary jurisdiction in terms of Section 319 of the Code of Criminal Procedure, it must arrive at the satisfaction that there exists a possibility that the accused so summoned is in all likelihood would be convicted. Such satisfaction can be arrived at inter alia upon completion of the cross-examination of the witness. For the said purpose, the Court concerned may also like to consider other evidence.

It is settled law that the power u/s 319, Code of Criminal Procedure can be exercised either on an application made to the Court or by the Court suo motu. The Court has power u/s 319, Code of Criminal Procedure to proceed against any person not shown to an accused if it appears from the evidence that such person has also committed an offence for which he can be tried together with the accused. The main object underlying Section 319, Code of Criminal Procedure is that the whole case against all accused should be tried and disposed of not only expeditiously but also simultaneously. Justice and convenience both require that cognizance against the newly added accused should be taken in the same cease and in the same manner as against the original accused. It is, therefore, a matter of discretion of the Court to summon an accused u/s 319, Code of Criminal Procedure.

It was therefore, necessary and expedient for the learned Additional Sessions Judge to arrive at the conclusion that there was a possibility that the revisionist in all likelihood would be convicted on the basis of evidence adduced during the trial. Such satisfaction could only be recorded after cross-examination of the P.W. 1 Ramesh Chandra and other witnesses if examined. Without cross-examination of P.W. 1 Ramesh Chandra his statement could not be treated as a legal evidence even for the purpose of Section 319, Code of Criminal Procedure.

I am, therefore, of the view that the learned Additional Sessions Judge has committed error of law in placing reliance on un-cross-examined statement of P.W. 1 Ramesh Chandra for summoning the revisionist. By doing so the learned lower court has committed miscarriage of justice in the case.

The revision is allowed. The impugned order dated 27.7.2009 is set aside. The learned Additional Sessions Judge is directed to re-consider the matter in the light of the observations made hereinbefore and pass appropriate order in accordance with law.