Dinesh Babu vs State of U.P. and Another

The present application u/s 482 Cr.P.C. has been filed by the applicant Dinesh with a prayer to quash the summoning order dated 9.7.2009 passed by Additional District & Sessions Judge Court No. 7 Etah in Sessions Trial No. 829 of 2008 (State v. Ajanti Singh) in Case Crime No. 50 of 2007 under Sections 307/504 IPC, Police Station Sakit District Etah.

Prosecution case as set up in brief is, that Rajesh Kumar, opposite party No. 2 lodged the FIR on 5.3.2007 at 15.20 hours, with regard to the incident which is alleged to have taken place on 4.3.2007 at 10 o''clock. It is alleged in the FIR, that the complainant was sitting in front of his house to mourn the sad demise of his father, at that time the other persons of his village came near to his house and started dancing and singing. The complainant requested them to stop singing and dancing. On his request, the villagers returned back, but on the same day at 10 o''clock in the night, one Ajanti Singh started to shower filthy and abusive languages. At that moment, the complainant again tried to pacify him, but Ajanti Singh instead of stopping to use abusive and filthy languages exhorted to shoot. On his exhortation, Dinesh Babu who was armed with 12 bore pistol started firing and also threw bricks and stones. On account of firing by Dinesh Babu, Rajesh Kumar, the applicant sustained injuries on his head, palm, shoulder & chest. This incident was witnessed by Ram Babu and Devendra Singh, and on their intervention, his life could be saved. The injured was medically examined on 5.3.2007 at 6.30 p.m. The injury report clearly indicates, that fire arm injuries were sustained by the victim on the various parts of his body. X-Ray was also conducted on 5.3.2007, where radio metallic shadow was found in the finger and chest.

After the registration of the FIR, police came into motion and recorded statements u/s 161 Cr.P.C. of the witnesses as well as the injured complainant who supported the prosecution version. The Investigating Officer also recorded the statement of some witnesses, who denied the presence of the applicant on the spot at the time of occurrence, and stated that the applicant has falsely been implicated in the aforementioned case, on account of old animosity. Relying upon those statements, the Investigating Officer found the involvement of applicant false and submitted a report, that prima facie no case is made out against the applicant and ultimately on 30.6.2008, closed the investigation against the applicant and the charge sheet was submitted only against the co-accused Ajanti Singh.

Subsequent thereto, the case proceeded before the trial court vide S.T. No. 829 of 2008, State v. Ajanti Singh, and the statement of P.W.1 was recorded, and in his examination-in-chief, he stated that, firing was done by the applicant on account of which he sustained injuries on his shoulder, chest, head etc. The complainant moved an application u/s 319 Cr.P.C. for summoning the accused-applicant to face trial who was wrongly dropped by the police during the investigation, while he was specifically named in the FIR and the specific role was assigned to him. His involvement was mentioned in the statement u/s 161 Cr.P.C. The trial court after examining the entire materials on record found prima facie involvement of the applicant in the said incident and he was summoned vide order dated 9.7.2009 by the court below.

Heard the learned Counsel for the applicant and the learned AGA and perused the materials on record.

It is contended by the learned Counsel for the applicant, that the trial court has wrongly allowed the application u/s 319 Cr.P.C. against the applicant when the applicant was not charge sheeted. The trial court has ignored the material on record and has proceeded on the mere statement of the complainant, while during investigation none has supported the prosecution version, and the name of the applicant had rightly been dropped during the investigation. The charge sheet was submitted only against the co-accused Ajanti Singh. But, the complainant had filed no objection against the charge sheet. The applicant is in Army and when the incident occurred, he was ill and had been admitted in the Government Hospital. The applicant was summoned by the court below on the false statement which is contradictory in itself.

It is contended by the learned Counsel for the applicant, that only on the evidence in examination-in-chief of P.W.1, the court below allowed the application moved u/s 319 Cr.P.C., although he was found innocent during the investigation. The learned Counsel has placed reliance on the case of Mohd. Shafi v. Mohd. Rafiq and Anr. reported in 2002 (58) ACC 254, where the Apex Court set aside the order of the High Court, wherein Section 482 Cr.P.C. petition was allowed, interfering with the order of the trial court, and rejected the application u/s 319 Cr.P.C. The Sessions Judge had rejected the application u/s 319 Cr.P.C. on the ground, that witness''s examination-in-chief was only done, therefore, he refused to exercise his discretionary jurisdiction. Therefore, the High Court, entertaining the petition u/s 482 Cr.P.C had committed manifest error.

On the other hand, the learned AGA contended that the trial court has examined the entire materials on record and has rightly come to the conclusion, that the name of the applicant was mentioned in the FIR and also specific role was assigned to him. The P.W.1 has also supported the prosecution case, therefore, the dropping of name by the police during the investigation relying upon the statement of some partisan persons will not exonerate the applicant from being summoned by the court in exercise of power u/s 319 Cr.P.C. The court below has rightly summoned the applicant to face the trial punishable u/s 307/504 IPC. The learned AGA has drawn the attention of the Court, that the applicant does not derive any benefit from the aforesaid judgment, because such satisfaction can only be arrived at after completion of cross-examination of witnesses. The applicant is named in the FIR and the specific role has been assigned to him. The eye witnesses have supported the prosecution version in their statement before the police u/s 161 Cr.P.C. as such the trial court has rightly summoned the applicant by exercising its power u/s 319 Cr.P.C. which may not be interfered with by this Court in its inherent power u/s 482 Cr.P.C. There is no illegality in the summoning order as the learned Sessions Judge has found sufficient material on record. The learned Sessions Judge is fully empowered to exercise its jurisdiction u/s 319 Cr.P.C. against any person if he is satisfied that there is sufficient evidence showing the involvement of accused in the said offence.

For the purpose of proper adjudication of controversy involved in the present case, Section 319 Cr.P.C. is reproduced hereto below:

Power to proceed against other persons appearing to be guilty of offence.-(1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person being the accused had 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 detailed 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 sub section(1) then:

(a) then proceedings in respect of such persons shall be commenced afresh, and witnesses re-heard;

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

Section 319 of the code empowers a court to proceed against any person, if it appears from the evidence that, such person has also committed an offence, for which he can be tried together with the accused already facing trial. The Section 319 of the code empowers the court to take such action on the application or sou-moto. It is in the discretion of the court to take an action, but the discretion is expected to be exercised judicially and sparingly.

In the instant case, the trial court found that in para 21 of the statement of the P.W.1, he has categorically mentioned the active role of the applicant, this was the sufficient evidence to exercise power u/s 319 Cr.P.C. Therefore, the application was allowed, whereas, in Mohd. Shafi''s case, the prosecution witness has alleged, that the incident has taken place in his presence. However, further stated, he reached at the place of occurrence after the hearing the noise, hence, the Trial court rejected the application for summoning the applicant Mohd. Shafi as not acceptable.

The word ''evidence'' in Section 319 of the code connotes, that evidence of witnesses given in court. Under Sub-section (4)(i)(b) of the aforesaid Section, it is made clear, that newly added person had been an accused person, when the court took cognizance of the offence upon which the inquiry or trial commenced. The cognizance would be presumed to have been taken in respect of newly added accused is concerned.

The power u/s 319 Cr.P.C. should be exercised only if there is satisfaction of the court that there exists a possibility that the accused so summoned in all likelihood would be convicted was not found to be correct as as held by the Apex Court in its decision reported in the case of Sarabjit Singh v. State of Punjab 2009 (66) A.C.C. 32 (S.C.), as well as it is held in Hardeep Singh v. State of Punjab 2009 (65) A.C.C. 768 (S.C.), that, ''the text formulated in Mohd. Shafi case substantially curtails discretionary power conferred by the court under Sub-section (1) of Section 319''. Even on this point matter requires fresh consideration.

Considering the submission made by learned Counsel for the parties and looking into the material on record, I find there is no illegality in the order passed by the learned Sessions Judge. However, any observation made herein above will not effect the merits of the case. The application has no substance and is accordingly dismissed. However, it is directed that in case the applicant appears before the court concerned within 30 days from today and applies for bail, the same shall be heard and disposed of expeditiously, if possible, on the same day. No coercive steps shall be taken against him during the aforesaid period.