Badar Alam vs State of U.P.

Vinod Prasad, J.—Heard Sri V. M. Zaidi, learned Counsel for the revisionist in respect of this revision and Sri A. K. Solanki, learned Counsel for the Respondent as well as learned A.G.A.

The prayer of the prosecution for summoning Shoaib, Abdul Rahman, Daud and Mateen u/s 319, Cr. P.C. as an accused has been rejected by the Additional Sessions Judge, Court No. 8, Muzaffarnagar in S.T. No. 232 of 2006 by observing that because investigation is still going on in respect of these persons, therefore, the application of the prosecution u/s 319, Cr. P.C. is not maintainable. The said order dated 18.10.2006 is under challenge in this revision.

After hearing Sri V. M. Zaidi, learned Counsel for the revisionist in respect of this revision and Sri A. K. Solanki, learned Counsel for the Respondent as well as learned A.G.A., I am of the considered opinion that the said order passed by the trial court is wholly illegal. The power of the Court u/s 319, Cr. P.C. is not in any way silhouetted, abridged or abrogated by the power of the police to make investigation. Power u/s 319, Cr. P.C. is the wholesome power, which has been conferred by the statute on the Courts to summon anybody, who, on the basis of the statement recorded during the trial, seems to be an accused who can be tried along with already tried accused. What is sine qua non for exercising power u/s 319, Cr. P.C. is the recorded statement in the trial. So far as the facts, which are culled out during the investigation by the Investigating Officer, the same are irrelevant for the purpose of summoning anybody as an accused u/s 319, Cr. P.C. The Apex Court has also held that so far as Section 319, Cr. P.C. is concerned, the statement recorded during the trial essential and the material collected by the Investigating Officer is of no consequence. What matter at the stage of Section 319, Cr. P.C. is the recorded statement of the witnesses the stage of trial. In this view of the matter u/s 319, Cr. P.C. has got a different purview all together. The said Section is not circumscribed by the power of the police u/s 156(1), Cr. P.C.

In view what I have stated above, the impugned order dated 18.10.2006, passed by Additional Sessions Judge, court No. 8, Muzaffarnagar in S.T. No. 232 of 2006 cannot be sustained and deserves to be set aside.

This revision is allowed.

The impugned order dated 18.10.2006, passed by Additional Sessions Judge, Court No. 8, Muzaffarnagar in S.T. No. 232 of 2006, State v. Nishat and others S.T. No. 232 of 2006, is hereby set aside. The matter is remanded back to the trial Judge to re-consider the prayer of the prosecution u/s 319, Cr. P.C. and pass a reasoned order in accordance with law.