Radhey Shyam Mishra vs State of U.P.

B.N. Katju, J.—This is an application in revision against the order of the Second Additional Sessions Judge Jaunpur dated 22-1-1982 summoning the applicant u/s 319 Code of Criminal Procedure to stand his trial u/s 396 IPC along with the other co-accused in Sessions Trial No. 207 of 1977.

It appears that originally a charge-sheet was filed against Ramdhani Tewari, Babu Nandan, Rajpati Singh, Daya Shanker Pandey and Komal Tewari u/s 396 IPC in Crime No. 17 of 1977 Police Station Kerakat, district Jaunpur in the Court of the Chief Judicial Magistrate Jaunpur on 23-4-1977 and the case against the aforesaid accused was committed to the Court of Sessions. A supplementary charge-sheet was filed against the applicant in the Court of the Chief Judicial Magistrate, Jaunpur u/s 396 IPC in the aforesaid case. An application was thereafter filed on 23-11-1977 by the Assistant Public Prosecutor u/s 321 Code of Criminal Procedure for withdrawal of the prosecution of the applicant u/s 396 IPC which was allowed by the Chief Judicial Magistrate Jaunpur on the same day (23-11-1977). A revision was filed by Rajendra Kumar PW 1 against the aforesaid order of the Chief Judicial Magistrate, Jaunpur dated 23-11-1977 which was dismissed by the Third Additional Sessions Judge, Jaunpur on 21-1-1981. In the trial of the co-accused (Sessions Trial No. 207 of 1977) Rajendra Kumar PW 1 was examined on 18-9-1981 in the Court of the Second Additional Sessions Judge, Jaunpur. In his statement he implicated the applicant in the aforesaid case along with the other co-accused. An application was thereafter moved by him u/s 319 Code of Criminal Procedure for proceeding against the applicant for the offence u/s 396 IPC committed by him along with the other co-accused which was allowed by the Second Additional Sessions Judge, Jaunpur by his order dated 22-1-1982 and the applicant was summoned for 15-2-1982 to face his trial u/s 396 IPC in the aforesaid case.

Section 319(1) Code of Criminal Procedure is as follows:

Where, in the course of any inquiry into or trial of, an offence it appears from the evidence that any person not being the accused has 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.

It is evident from a plain reading of Section 319(1) Code of Criminal Procedure that it is applicable only to a person who is not an accused but it appears from the evidence in the course of any inquiry or trial of an offence that he has committed any offence for which he could be tried together with the accused. It is clearly not applicable to a person who has been an accused in the case and has been discharged by the Court. It may be mentioned that the order of the Chief Judicial Magistrate, Jaunpur dated 23-11-1977 allowing the application of the Assistant Public Prosecutor for withdrawal of the prosecution against the applicant u/s 396 IPC amounts to an order discharging the applicant u/s 396 IPC in view of Section 321(2) Code of Criminal Procedure as charge had not been framed against the applicant In these circumstances the order of the Second Additional Sessions judge Jaunpur dated 22-1-1982 u/s 319 Code of Criminal Procedure proceeding against the applicant and summoning him u/s 396 IPC in Sessions Trial No. 207 of 1977 was clearly illegal.

This application is accordingly allowed and the order of the Second Additional Sessions Judge, Jaunpur dated 22-1-1982 is set aside.

Revision allowed.