Ishtiyaq vs State of Uttar Pradesh and Another

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

Supplementary affidavit has been filed on behalf of the applicant today in Court, which is being taken on record in which statement of P.W. 1 and P.W.2 has been appended.

The present 482, Code of Criminal Procedure application has been filed for quashing of the proceedings of Session Trial No. 371 of 2010 under Sections 307, 323 IPC pending before the Additional Sessions Judge, Court No. 1, Fatehpur and also for quashing of the summoning order dated 29.11.2010 and the order dated 15.12.2010, whereby non-bailable warrants have been issued against the applicant.

Learned Counsel for the applicant has contended that the applicant has been summoned on an application u/s 319 Code of Criminal Procedure when even the injured witness has not stated anything about the complicity of the applicant in the commission of the alleged offence, as such, orders impugned dated 29.11.2010 and 15.12.2010 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 another, 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 (50) 2004 ACC 343 and in the case of Mohd. Shafi v. Mohad. Rafiq and another, reported in (58) 2007ACC 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 (65) 2009 ACC 971 (Ram Singh and Ors. v. Ram Niwas and another), 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 Seraj @ Ranu and P.W. 2 Maqbool in their 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, 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 another, 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, Cr.P.C.

Perusal of the statement of P.W. 1 and P.W. 2 shows the complicity of the applicant in the commission of the alleged offence and therefore, in the opinion of this Court, learned Counsel for the applicant could not point out any legal infirmity in the summoning order dated 29.11.2010 which may warrant any interference by this Court in exercise of the power u/s 482 Cr.P.C.

Accordingly, the prayer for quashing the proceedings, the summoning order and the non-bailable warrant 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 of.