Tara and Others vs State of U.P. and Another

Amar Saran, J.—Heard Shri P.N. Misra and Sri. Jitendra Pal Singh, learned Counsel for the revisionists, Shri M.C. Gupta for opposite party No. 2 and learned Additional Government Advocate.

This criminal revision has been filed against an order dated 14.9.2009, passed by the Additional Sessions Judge, F.T.C. No. 4. Mathura in S.T. No. 87 of 2009, summoning the revisionists under Sections 147, 323/149, 307/149, 452 and 506, I.P.C. in exercise of powers u/s 319 of the Code of Criminal Procedure.

The revisionists were summoned after the evidence of the informant P.W. 1 Smt. Shyamwati and one of the injured P.W. 2 Sahab Singh which disclosed that on the date of incident the revisionists and the other co-accused had assaulted the injured with various weapons at about 3 p.m. Prior to this after the police had submitted a final report, a protest petition was filed by the complainant. Shyamawati, and then after following the procedure of a complaint case the 6 co-accused other than the revisionists were summoned on 10.3.2008, but no order was passed summoning the revisionists.

No contention was raised on merit by the learned Counsel for the revisionists. Only one submission was made, that as the learned Judicial Magistrate, Court No. 8, Mathura had refused to summon the revisionists by the order dated 10.3.2008, whilst summoning the co-accused Gyani, Bhagat Singh, Ram Babu, Yashpal, Kripal and Suresh, it amounted to an order discharging the revisionists. It was contended that a discharged revisionist could not be summoned in exercise of powers u/s 319, Code of Criminal Procedure. In support of this contention, learned Counsel has placed reliance in the case of Sohan Lal and Ors. v. State of Rajasthan 1990 SCC 650.

I am not in agreement with the submission of the learned Counsel. Sohan Lal''s (supra) case is clearly distinguishable from the present case. In Sohan Lal the police had submitted a charge-sheet u/s 173, Code of Criminal Procedure against the accused persons u/s 147/323/325/336/ 427, I.P.C. on which the Judicial Magistrate had taken cognizance. Subsequently the Magistrate had passed an order discharging the two Appellants (4 and 5), whilst charging the Appellants 1, 2 and 3 only u/s 427, I.P.C. The Apex Court observed that so far as the 3 accused who had been charged u/s 427, Code of Criminal Procedure as they were already accused before the Court, they could have been summoned under the other Section 147/427/336/323/325, I.P.C. only in exercise of powers u/s 216, Code of Criminal Procedure which permits alteration of the sections for which an accused is charged, but not in exercise of powers u/s 319, Code of Criminal Procedure. The said summoning order was therefore upheld. However, so far as the two accused who had been discharged under all sections, it was not proper to summon them in exercise of powers either u/s 216, Code of Criminal Procedure or u/s 319, Code of Criminal Procedure. Having been discharged under all sections Appellants 4 and 5 could not be summoned under any section, as powers u/s 216, Code of Criminal Procedure only lie for adding or altering an existing charge. They could also not be summoned in exercise of powers u/s 319, Code of Criminal Procedure, because in view of the order discharging them in purported exercise of powers u/s 245, Code of Criminal Procedure, the said order it was observed by the Apex Court had attained finality and it could only be set aside after an enquiry by the Sessions Judge or High Court after the enquiry as contemplated u/s 398, Code of Criminal Procedure.

In the present case, after a final report was submitted, on a protest petition, the Magistrate had decided to adopt the procedure of a complaint case, and after examining the complainant Smt. Shyamwati u/s 200, Code of Criminal Procedure and the other injured witness Sahab Singh u/s 202, Code of Criminal Procedure the 6 co-accused were summoned, but no order was passed summoning the revisionists, even though they were also nominated as having taken an active part in attacking the injured with weapons. The said order refusing to summon the revisionists, because the Magistrate is of the opinion that there is no sufficient evidence at that stage to proceed against them, could at the highest only be described as an order dismissing the complaint against them u/s 203, Code of Criminal Procedure.

Moreover, an order refusing to summon particular accused purportedly in exercise of powers u/s 203, Code of Criminal Procedure is completely different from an order discharging the accused under Sections 227, 239, 245 and 249, Code of Criminal Procedure as Sohan Lal (supra) itself clarifies that so far as proceedings against an accused against whom initially a police report was filed pursuant to the F.I.R. u/s 190(1)(a), but a final report was submitted, there was no fetter in summoning other accused in exercise of powers u/s 319, Code of Criminal Procedure. The Apex Court in Joginder Singh and Another Vs. State of Punjab and Another, , has clarified that simply because a person was named as an accused in the F.I.R., he would still be "any person not being the accused" and an accused who has not been charge-sheeted would clearly be considered as "any person not being the accused." The position of the accused against whom a complaint has been filed before a Magistrate u/s 190(1)(a), but where the Magistrate has refused to proceed against him by summoning him, or dismissed the complaint against him in exercise of powers u/s 203, Code of Criminal Procedure is similar to the case of an accused who was not charge-sheeted by the police and no order taking cognizance against him had been passed by the learned Magistrate.

The Apex Court has observed in Dr. S.S. Khanna Vs. Chief Secretary, Patna and Another, that where some accused persons against whom a complaint had been filed along with other persons, against whom the Court was not proceeding after the enquiry u/s 202, Code of Criminal Procedure the said accused persons could be summoned at a later stage in exercise of powers u/s 319, Code of Criminal Procedure to stand trial alongwith earlier charge-sheeted accused for the same or a connected offence. The said decision, which has been cited by the learned trial Judge applies on all fours to the facts of the instant case where the Magistrate has not chosen to proceed against the accused-revisionists after the complainant and other witnesses'' statements were recorded under Sections 200 and 202, Code of Criminal Procedure. Thereafter after the witnesses P.W. 1 (complainant) and P.W. 2, an injured were examined the revisionists had been summoned as the evidence recorded also suggested their involvement in the offence.

In view of the aforesaid discussion I see no illegality in the said order. The revision is devoid of merit and is dismissed.