Raj Kumar vs State of U.P. and Another

Rajesh Dayal Khare, J.—Heard learned Counsel for the revisionist and the learned AGA for the State-respondent.

The present criminal revision has been filed against the order dated 27.6.2009 passed by Additional Sessions Judge/Fast Track Court No. 2, Mathura in Sessions Trial No. 412 of 2008 whereby the revisionist has been summoned to face trial under the charged Section on an application u/s 319 Cr.P.C.

It is contended by the learned Counsel for the revisionist that although the revisionist was named in the first information report, the Investigating agency found complicity of the revisionist to be false and, therefore, exonerated him and submitted charge sheet against other accused persons, as such, order impugned dated 27.6.2009 be set aside. In support of his contention learned Counsel for the revisionist has relied upon judgement of Hon''ble Apex Court in the case of Krishnappa v. State of Karnataka reported in 2004(50) ACC 343 and in the case of Mohd. Shafi v. Mohad. Rafiq and Anr. reported in 2007 (58) ACC 254 . Learned Counsel for the revisionist 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 revisionist has further relied upon a decision of Hon''ble Apex Court reported in 2009 (65) 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 as per the provision of Section 319, Cr.P.C. confers an extraordinary power is conferred upon the 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 Counsel appearing for the opposite party No. 2 as well as learned A.G.A. have contended that complicity of the revisionist came into light in the statement of P.W.1 Devi Singth in his examination-in-chief and the witness was also cross-examined by the counsel for the accused, therefore, the order impugned summoning the revisionist in exercise of power u/s 319, Cr.P.C. 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 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 Cr.P.C. 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.

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

The prayer for quashing the order impugned dated 27.6.2009 is hereby refused.

However, considering the facts and circumstances of the case it is provided that if the revisionist 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 Hon''ble Supreme Court dated 23.3.2009 in Criminal Appeal No. 538 of 2009, Lal Kamlendra Pratap Singh v. State of U.P., 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 revisionist.

With the aforesaid directions, this revision is disposed of.