Babu Ram vs State of U.P. and Another

Rajesh Dayal Khare, J.—Heard learned Counsel for the applicant and learned A.G.A. for the State Respondent.

The present 482, Code of Criminal Procedure application has been filed against the summoning order dated 6.7.2010 passed in criminal case No. 339 of 2009 (case crime No. 39 of 2009) u/s 452, 352, 504, 506 IPC by Additional Chief Judicial Magistrate III, Bareilly, whereby applicant has been summoned u/s 319, Code of Criminal Procedure to face trial under the charged sections.

It is contended by the learned Counsel for the applicant that the though in the first information report the applicant was named but, after investigation, the Investigating agency found complicity of the applicant to be false and, therefore, exonerated him and submitted charge sheet against other accused person, as such, order impugned dated 6.7.2010 be set aside. In support of his contention learned Counsel for the applicant has relied upon judgment of Hon''ble Apex Court in the case of Sarabjit Singh and Anr. v. State of Punjab and Anr., reported in (2010) 2 SCC 141, in which Hon''ble Apex Court has held that ''an order u/s 319, should not be passed only because first informant or one of the witnesses seeks to implicate other persons(s)- sufficient and cogent reasons are required to be assigned by court so as to satisfy ingredients of Section 319.'' Learned Counsel for the applicant has also relied upon judgment of Hon''ble Apex Court in the case of Hardeep Singh v. State of Punjab and Ors. reported in (2010) 2 SCC 355, in which Hon''ble Apex Court has held that ''power u/s 319 can be exercised only if the court is satisfied that the accused summoned in all likelihood would be convicted.'' Leaned counsel for the applicant has further relied upon judgments in the case of Krishnappa v. State of Karnataka, reported in L (2004) ACC 343 and in the case of Mohd. Shafi v. Mohad. Rafiq and Anr., reported in LVIII (2007) ACC 254 . Learned Counsel for the applicant has also relied upon the judgment of Hon''ble Apex Court reported in Lal Suraj @ Suraj Singh and Another Vs. State of Jharkhand, in support of his contention. Learned Counsel for the applicant has further relied upon a decision of Hon''ble Apex Court reported in LXV (2009) ACC 971 (Ram Singh and Ors. v. Ram Niwas and Anr.), in which Hon''ble Apex Court has held that in the event, it appears from the evidence that any person, not being an accused, has committed any offence for which he could be tried together with the accused, the court may proceed against him for the offence which he appears to have committed. It has been further held that the provision of Section 319, Code of Criminal Procedure confers an extraordinary power upon a court to summon a person who, at the relevant time, was not being tried as an accused, subject, of course, to fulfilment of the condition that it appears to the court that he had committed an offence. A finding to that effect must be premised on the evidence that had been brought on record.

Learned A.G.A. has contended that complicity of the applicant came into light in the statement of P.W.1 Anita Devi in her examination-in-chief, therefore, the order impugned summoning the applicant in exercise of power u/s 319, Code of Criminal Procedure has rightly been passed and there is no illegality in the impugned order.

u/s 319, Code of Criminal Procedure, the court can summon any person as an accused who has not been charge sheeted or is not an accused, but before passing the order the court has to satisfy itself that there is a prima facie evidence against the person to be summoned by the court.

Learned A.G.A. has placed reliance of judgment of Hon''ble Apex Court in the case ofRam Pal Singh and Ors. v. State of U.P. and Anr., reported in 2009 (75) AIC 4 (SC), wherein Hon''ble Apex Court has held that all that is required by Court for invoking its powers u/s 319 of Code of Criminal Procedure is, to be satisfied that from the evidence adduced before it, a person against whom no charge has been framed, but whose complicity in the offence appears to be clear, should be tried together with the other co-accused. Discretion is left with the Court to take a decision in the matter. It is further held that where prosecution witnesses had named Appellants as persons, who were involved in the commission of offence, though they were not named in the charge sheet, trial court was not justified by rejecting the application u/s 319, Code of Criminal Procedure

From the perusal of the statement of P.W. 1, since there is specific allegation against the applicant, therefore, there is no illegality, incorrectness or impropriety in the order impugned by which the applicant has been summoned.

The prayer for quashing the order impugned dated 6.7.2010 is hereby refused. However, considering the facts and circumstances of the case it is provided that if the applicant appears and surrenders before the court below within a period of 30 days from today and applies for bail, then his prayer for bail shall be considered in view of the settled law laid down by the Seven Judges'' decision of this Court in the case of Amarawati and Anr. v. State of U.P., reported in 2004 (57) ALR 290 and in the recent decision of the Supreme Court in the case of Lal Kamlendra Pratap Singh Vs. State of U.P. and Others, after hearing the Public Prosecutor. For a period of 30 days from today or till the disposal of the application for grant of bail, whichever is earlier, no coercive action shall be taken against the applicant.

With the aforesaid directions, this application is disposed off. Order.