Ram Pher and Others vs District and Sessions Judge and Others

K.N. Sinha, J.—The present writ petition has been filed for issue of a writ of certiorari to quash the order dated 4.10.2002 passed by Respondent No. 2 and the order dated 7.2.2003 passed by Respondent No. 1.

The brief facts are that the Respondent No. 3 lodged a report against the Petitioners at the police station Holagarh, which was registered as case crime No. 73 of 1996. After the investigation, charge-sheet was submitted against the husband of Respondent No. 4 and the present Petitioners were not found involved in the case. After the charge-sheet was filed, the statement of witnesses was recorded and on the application u/s 319, Cr. P.C., the Magistrate summoned the Petitioners as accused. A revision was filed before the Sessions Judge but the same was dismissed for want of appearance by the Petitioners.

Heard the learned Counsel for the Petitioners and the learned A.G.A.

A perusal of the F.I.R. shows that all the four Petitioners were named in the F.I.R., though after investigation they were not charge-sheeted. The learned Counsel for the Petitioners has submitted that as the Petitioners were already named accused in the F.I.R., but once the charge-sheet was not submitted, they stand exonerated and cannot be summoned u/s 319, Cr. P.C. In support of his contention, he relied upon the case of Pradeep Kumar v. State of U. P., and Anr. 2001 (2) ACR 1873: (42) 2001 ACC 1021. I have perused the said authority in which it has been held that if a person was earlier named as an accused in the F.I.R. but he was not charge-sheeted, the provisions of Section 319, Cr. P.C. cannot be invoked. This authority was placed before Hon''ble J. C. Gupta, J. in the case of Manoj Kumar and Anr. v. State of U. P. 2001 (2) ACR 1419: (43) 2001 ACC 292, wherein the law laid down in Pradeep Kumar''s case (supra), was not agreed to by Hon''ble J. C. Gupta, J. and it was referred to a larger Bench. However, the Apex court in the case of Smt. Rukhsana Khatoon v. Sakhawat Hussain and Ors. 2002 (1) ACR 419 (SC): (44) 2002 ACC 411, has held that though an accused named in the F.I.R. and not charge-sheeted can be summoned by the Court u/s 319, Cr. P.C. Not only this, the Apex Court has further held that this power can be invoked both by the Court having original jurisdiction and also by the Court to which the case was committed. Thus the law laid down by the Apex Court in the above case settles the point in controversy that the person named in the F.I.R. but not charge-sheeted can also be summoned by invoking the jurisdiction u/s 319, Cr. P.C.

It is also argued that the examination-in-chief was recorded but the Court passed the order without any cross-examination. It is also settled in the case of Shiv Narain and Ors. v. State of Uttar Pradesh and Anr. 2000 (1) ACR 921: 2000 (3) Crimes 152, that the term ''evidence'' as used in Section 319, Cr. P.C. does not mean ''evidence'' complete by cross-examination and Court can take action u/s 319, Cr. P.C. on statement made in examination-in-chief of one or more witnesses. However, this controversy was earlier settled at rest by a Division Bench of this Court in the case of Ram Gopal v. State of U. P. 1999 (1) ACR 274: (38) 1999 ACC 123, wherein it was held that the Court has power to summon any person as an accused on uncross-examined testimony of a witness.

In view of the above, I find that the impugned order does not suffer from any illegality or infirmity and the revision being devoid of any merit is hereby dismissed.