Nazma vs State of U.P.

Vinod Prasad, J.—A.C.J.M. Court No. 1, Muzaffar Nagar has passed an illegal order on 16.7.2009 in Nazma v. Nawab Arshad Case No. 3351/9 of 2008, under Sections 406 and 506, I.P.C., P.S. Kotwali Nagar, district Muzaffar Nagar. It has rejected the prayer of the prosecution to summon Shabina u/s 319, Code of Criminal Procedure for the reason that u/s 204, Code of Criminal Procedure she was not summoned. A.C.J.M. has observed that if a person has not been summoned u/s 204, Code of Criminal Procedure then, if his/her name appears in statement u/s 244, Code of Criminal Procedure then the application u/s 319, Code of Criminal Procedure is not maintainable in his/her respect.

I have heard learned Counsel for the applicant and learned A.G.A.

The opinion by A.C.J.M. Court No. 1, Muzaffar Nagar is wholly illegal. If a person has not been summoned u/s 204, Code of Criminal Procedure and his name subsequently appears in statement recorded by the Court u/s 244, Code of Criminal Procedure then application u/s 319, Code of Criminal Procedure is maintainable. The statement u/s 244, Code of Criminal Procedure recorded by the Court is an "evidence." The Court can always rely on such a statement and, therefore, prosecution can always utilize the said statement u/s 244, Code of Criminal Procedure to add any person as an accused to stand trial alongwith the already trying accused. Merely because Sabina, who was desired to be summoned by the prosecution u/s 319, Code of Criminal Procedure was not summoned u/s 204, Code of Criminal Procedure is no ground not to summon her u/s 319, Code of Criminal Procedure and ask her to stand trial. It is only the merit of the statement u/s 244, Code of Criminal Procedure which is relevant for utilizing power u/s 319, Code of Criminal Procedure

Phraseology of the said Section 319, Code of Criminal Procedure clearly indicates that the power to summon any person as an accused to face the trial alongwith already trying accused clearly indicates that during trial if it appears from the evidence that any person not been an accused has committed any offence for which such person can be tried together with the accused, the Court may proceed against such person for the offence which he appears to have been committed. The word "evidence" as has been used in Section 319, Code of Criminal Procedure means the statement recorded in the Court in accordance with the provisions of the Evidence Act. The statement u/s 244, Code of Criminal Procedure is one of such statement which is an "evidence" as it has been recorded by a Court during a trial.

In such a view, the impugned order dated 16.7.2009, passed by A.C.J.M. Court No. 1, Muzaffar Nagar in Case No. 3351/9 of 2008, Nazma v. Nawab Arshad, under Sections 406 and 506, I.P.C. cannot be sustained and has to be set aside.

I have not heard Sabina in this application for the reason that prior to her summoning, she has got no right to be heard.

This criminal miscellaneous application is allowed. The impugned order dated 16.7.2009 is set aside. Case is remanded back to the A.C.J.M. Court No. 1, Muzaffar Nagar to re-decide the prayer of the prosecution for summoning Sabina as an accused u/s 319, Code of Criminal Procedure.