Pawan Kumar and Another vs State of U.P. and Another

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

The present 482, Code of Criminal Procedure application has been filed for quashing of the summoning order dated 30.04.2011 passed in S.T. No. 1433 of 2009, under Sections 498-A, 304-B IPC and 3/4 of Dowry Prohibition Act, by Additional District and Sessions Judge, Court No. 9, Bulandshahr, whereby the applicants have been summoned u/s 319, Code of Criminal Procedure to face the trial under the charged sections.

It is contended by the learned Counsel for the applicants that the first information report was lodged against the applicants and other accused persons and after investigation, the Investigating agency found complicity of the applicants to be false and, therefore, exonerated them and submitted charge sheet against other accused persons, as such, order impugned dated 30.04.2011 be set aside insofar as the applicants are concerned.

In support of his contention learned Counsel for the applicants has relied upon judgment of Hon''ble Apex Court in the case of Sarabjit Singh and Anr. v. State of Punjab and Anr. 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 (Cri) 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 L 2004 ACC 343 and in the case of Mohd. Shafi v. Mohad. Rafiq and Anr. reported in LVIII 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 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 applicants came into light in the statement of P.W. 1 Indrapal in his examination-in-chief, therefore, the order impugned summoning the applicants in exercise of power u/s 319, Code of Criminal Procedure has rightly been passed and there is no illegality in the impugned order.

P.W. 1 Indrapal, in his statement recorded before the court below had named the applicants to be involved in the commission of the alleged offence and that the complicity of the applicants in the commission of the offence was brought on record.

u/s 319, Code of Criminal Procedure, 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 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, Code of Criminal Procedure.

From the perusal of the statement of P.W. 1 Indrapal, since there are specific allegations against the applicants, therefore, there is no illegality, incorrectness or impropriety in the order impugned by which the applicants have been summoned.

The prayer for quashing the order impugned dated 30.04.2011 is hereby refused.

However, considering the facts and circumstances of the case it is provided that if the applicants appear and surrender before the court below within a period of 30 days from today and apply for bail, then their 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 applicants.

With the aforesaid directions, this application is disposed of.