Damodar and Another vs State of U.P. and Another

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

The present criminal revisin has been filed for against the summoning order dated 21.7.2009 passed by Additional Sessions Judge, Court No. 8, Moradabad in sessions trial No. 720 of 2006 u/s 498-A 304-B and 315 IPC whereby the revisionists have been summoned to face trial under u/s 319, Cr.P.C. it is contended by the learned Counsel for the revisionists that the revisionist No. 1 and 2 are the brother-in-law (Nand and Nandoi) of the deceased, who are living separately and they have been falsely implicated in the present case. It is further contended that the revisionists are in no way connected with the commission of alleged offence and, therefore, criminal prosecution of the revisionists is bad in law.

Learned AGA has contended that the revisionists have been named in the FIR. Its is further contended that in the statements of PW.1 and PW.2, Jai Pal Singh and Mukut Lal, as specific allegation have been made against the revisionists showing their complicity in the commission of the alleged offence. It is thus contended by the leaned AGA that the order impugned suffers from no infirmity in law.

Learned Counsel for the revisionists has relied upon the Judgment of Hon''ble Apex Court reported in LXVI 2009 ACC 32 Sarabjit Singh and Anr. v. State of Punjab and Anr. in support of his contention. Learned AGA has relied upon the judgment of Hon''ble Apex Court reported in 2009(1) JIC 73 S.C. Palvinder Singh v. Balvinder Singh and Ors. in support of his contention.

It is contended by the learned Counsel for the revisionist that although the revisionist were named in the first information report, the Investigating agency found complicity of the revisionists to be false and, therefore, exonerated him and submitted charge sheet against other accused persons, as such, order impugned dated 21.7.2009 be set aside. In support of his contention learned Counsel for the revisionists has relied upon judgement of Hon''ble Apex Court 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 LIIX 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 as per the provision of Section 319, Cr.P.C. an extraordinary power is conferred upon the 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.

u/s 319, Cr.P.C., 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 of Ram Pal Singh and Ors. v. State of U.P. and Anr. reported in LXXV 2009 ACC 4 wherein Hon''ble Apex Court has held that all that is required by Court for invoking its powers u/s 319 of Cr.P.C. 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, Cr.P.C.

From the perusal of the statements of P.W.1 and P.W. 2, since there are specific allegations 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 21.7.2009 is hereby refused.

However, considering the fact that the revisionist No. 2 is lady, it is provided that she appears and surrenders before the Court below within a period of 30 days from today and applies for bail, then her prayer for bail shall be considered and decided, expeditiously, if possible on the same day, in accordance with law, and for remaining revisionist, it is provided that if he 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 this Court in the case of Amarawati and Anr. v. State of U.P. reported in 2004(57) ALR 290 and a recent decision of the Supreme Court dated 23.3.09 in Criminal Appeal No. 538 of 2009 Lal Kamlendra Pratap Singh v. State of U.P. and Anr. reported in 2004 (57) ALR 290. 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, coercive action shall not be taken against the revisionists. However, in case, the revisionists do not appear before the Court below within the aforesaid period, coercive action shall be taken against them.

With the aforesaid directions, this revision is finally disposed of.