Kallu @ Iqbal Ahmad vs State of Uttarakhand

Prafulla C. Pant, J.—Heard learned Counsel for the petitioner and learned Counsel for the respondent No. 1

By means of this petition, moved u/s 482 of Code of Criminal Procedure, 1973, the petitioner has challenged the order dated 18.02.2010, passed by Additional Sessions Judge/Ist Fast Track Court Roorkee, Haridwar, in S.T No. 148 of 2009 State v. Azam and Ors. relating to offences punishable u/s 307, 308, 325, 504 & 506 of I.P.C, Police Station Kotwali Gangnahar, Roorkee whereby said court has dismissed the application moved u/s 319 of Cr.P.C, by the complainant and refused to summon respondents no 2 to 4 in said case.

Brief facts of the case are that complainant/petitioner lodged first information report which was registered as crime No. 151 of 2007 against respondent no 2 to 4 and other two accused namely Tajbar and Azam, in respect of offences punishable u/s 147, 148, 149, 323, 307, 308, 504 I.P.C. After investigation the police submitted charge sheet against only two accused namely Azam and Tajbar @ Pappu relating to offences punishable u/s 307, 308 and 504 I.P.C on the basis of which Sessions Trial No. 148 of 2009 registered. It appears that after as many as six prosecution witnesses examined, the petitioner/complainant moved an application u/s 319 of Cr.P.C., before the trial Court, praying that respondent No. 2 Mukbir, respondent No. 3 Arshad and respondent No. 4 Jamira be also summoned to face the trial. The trial court after hearing the parties vide impugned order dated 18 of February 2010, rejected the application. Hence this petition.

Learned Counsel for the petitioner/complainant submitted that the three witnesses have supported the prosecution story as against respondent no 2 to 5 and as such these too should have been made to face the trial. Perusal of the papers on record shows that out of the six eyewitnesses examined, the three witnesses namely PW1 Irfan (father of the injured), PW2 Shahnawaz (injured) and PW3 Parvez @ Kallu have not supported the prosecution story nor named respondent no2 to 4 in the incident. However, the other three witnesses PW4 Iqbal, PW5 Islam and PW6 Afzal have named them along with Azam and Tajbar @ Pappu. The trial court after hearing the parties took the view that since respondent no 2 to 4 are members on family of accused Tajbar and Azam as such merely on the basis of statement of the last three witnesses, it is not desirable to summon the respondent No. 2 to 4 as accused in the case. The power u/s 319 of Cr.P.C is a discretionary in nature and it is not necessary for the trial court to summon each and everyone, who is named by some witnesses but not named in the charge sheet. The court in such matters has to consider entire evidence before it, before taking the decision whether a person not named charge sheet should be summoned as accused or not. Since the impugned order is based on the evidence on record, and it cannot be said with the trial court has committed any error of law in summoning the respondent No. 2 to 4, this Court is inclined to interfere with the impugned order.

Therefore, the petition u/s 482 of Cr.P.C is dismissed with the observations that the trial court shall proceed with the trial as expeditiously as possible.