Smt. Neetu vs State of U.P. and Another

Hon''ble Rajesh Dayal Khare, J.—Heard learned counsel for the applicant and learned A.G.A. for the State respondent.

The present 482, Cr.P.C. application has been filed against the summoning order dated 26.11.2010 passed by learned Additional Sessions Judge, Court No.3, District Muzaffar Nagar in Sessions Trial No. 1415 of 2008 State Vs. Ajendra and others, arising out of Case Crime No. 421 of 2006, under Sections 323, 394, 302, 452 I.P.C., Police Station Kandhala, District Muzaffar Nagar, whereby the applicant has been summoned on an application u/s 319 Cr.P.C.

Learned counsel for the applicant contends that the applicant was not named in the F.I.R., lodged in the present case. It is further contended that an application was allegedly moved by the first informant before Superintendent of Police regarding complicity of the applicant in commission of the alleged offence. It is thus argued that the summoning order is bad in law.

Learned A.G.A. has contended that the facts which were to be recorded in the F.I.R., was not recorded inspite of the fact that he has clearly mentioned about the complicity of the applicant in commission of the alleged offence. It is thus argued that incorrect first information report has lodged. Learned A.G.A. further contends that P.W.1, first informant has categorically stated in the statement before the court below that the applicant was also involved in the comission of the offence. It is thus, argued that the summoning order does not suffer from any infirmity in law.

In support of his contention learned counsel for the applicant has relied upon judgement of Hon''ble Apex Court in the case of Sarabjit Singh and another Vs. State of Punjab and another, reported in (2010) 2 SCC (Cri) 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 Vs. State of Punjab and others, 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 Vs. State of Karnataka, reported in L 2004 ACC 343 and in the case of Mohd. Shafi Vs. Mohad. Rafiq and another, 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 others Vs. Ram Niwas and another, 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, Cr.P.C. 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 applicant came into light in the statement of P.W.1, therefore, the order impugned summoning the applicants 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 others Vs. State of Uttar Pradesh and another, 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 is specific allegations against the applicant, 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 26.11.2010 is hereby refused.

However, considering the facts and circumstances of the case it is provided that if the appears and surrenders before the court below within a period of 30 days from today and applies for bail, then the 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 another Vs. State of Uttar Pradesh, 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 applicant. With the aforesaid directions, this application is disposed off.