Tayyab Khan vs State of U.P.

N.K. Mehrotra, J.—This is a petition u/s 482, Cr. P.C. for quashing the impugned order dated 10.4.2003 passed by the Additional Sessions Judge/Fast Track Court No. 1, Lucknow, in State v. Israr Khan and Ors. Sessions Trial No. 888 of 2002 of P.S. Sarojini Nagar, district Lucknow.

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

Impugned order is Annexure-6. The learned Sessions Judge after exercising his power u/s 319 of the Cr. P.C., has summoned the Petitioner Tayyab as accused after recording a finding that there are sufficient reasons to summon the accused Tayyab Khan for trial along with other accused.

After recording the statement of P.W. 1, Anil Kumar, he has relied on the contents of the F.I.R. and the statement of P.W. 1, Anil Kumar the informant. Anil Kumar has clearly stated about the involvement of accused Tayyab in the crime. It is against this order, the accused Tayyab Khan has filed this petition u/s 482, Cr. P.C.

Anil Kumar Yadav lodged an F.I.R. on 9.5.2002 stating the names of 5 persons including Tayyab as accused in the crime. The perusal of the F.I.R., Annexure-1 makes it clear that the name of Tayyab Khan has been mentioned amongst those who started firing with guns and Anil Kumar Yadav and a number of his family members sustained firearm injuries inside their house. Dharmendra had succumbed to his injuries. In the statement u/s 161 of Cr. P.C. Anil Kumar Yadav named Tayyab as accused involved in the crime but instead of naming the firearm specifically he has stated that Tayyab too was having ''Aslaha''. At the time of statement in the Court he has named Tayyab as one of the accused. It is on this statement, the learned Sessions Judge has exercised his discretion in summoning the Petitioner as one of the accused in Crime No. 125 of 2002 for being tried along with other accused in S.T. No. 888 of 2002. The contention of the learned Counsel for the accused applicant is that the other witnesses whose statements have been recorded u/s 161, Cr. P.C. have not named Tayyab as accused. He has also stated certain facts to assail the veracity of the F.I.R. and the entire prosecution case. He has referred that one Yusuf was not named in the F.I.R. but during investigation, Yusuf has also been implicated. In short the purpose of referring certain facts in the petition is to assail the veracity of the prosecution case. In the light of those facts the learned Counsel for the Petitioner has argued that whole prosecution story is not worth believing and the learned Sessions Judge before summoning the Petitioner Tayyab as accused must have recorded the finding that Tayyab has committed an offence and secondly that for such offence, Tayyab could be tried along with already arraigned accused. Learned Counsel for the applicant has argued that unless these two findings are recorded, the discretionary power u/s 319 of the Cr. P.C., cannot be exercised merely on entertaining some doubts from the evidence about the involvement of any person other than the accused in the offence. He has also argued that Tayyab Khan has not been charge-sheeted by the police and therefore, before summoning Tayyab as accused, these two findings are required. Learned Counsel has argued that manifest injustice has occurred and process of the Court has been abused.

Section 319 of the Cr. P.C. is as follows:

Section 319.-Power to proceed against other persons appearing to be guilty of offence.-(1) 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.

(2) Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid.

(3) Any person attending the Court, although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed.

(4) Where the Court proceeds against any person under Sub-section (1) then:

(a) the proceedings in respect of such person shall be commenced afresh, and witnesses reheard ;

(b) subject to the provisions of Clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced.

I find that there is power conferred on the Court in the course of any inquiry or trial of an offence and the phrase used in the language of the aforesaid section, indicates that there is complete discretion to the Court concerned during inquiry or trial to summon any person as an accused.

Learned Counsel has referred a decision of the Hon''ble Supreme Court in Michael Machado and Anr. v. Central Bureau of Investigation and Anr. 2000 (1) ACrR 747 (SC): 2000 SCC (Cri) 609, in which the Hon''ble Supreme Court has observed that basic requirement for invoking the above section is that it should appear to the Court from the evidence collected during trial or in the inquiry that some other person who is not arraigned as an accused in that case, has committed an offence for which that person could be tried together with the accused already arraigned. It is not enough that the Court entertained some doubt from the evidence, about the involvement of another person in the offence. In other words, the Court must have reasonable satisfaction from the evidence already collected regarding two aspects. First is that the other person has committed offence. Second is that for such an offence, that other person could as well be tried along with already arraigned accused.

In view of the aforesaid legal position referred by the learned Counsel for the Petitioner, I examined the impugned order. I find that the learned Sessions Judge has referred two things in the order ; firstly, the contents of F.I.R. and secondly the statement of P.W. 1, Anil Kumar Yadav recorded in the Court. He has correctly not referred any statement recorded u/s 161, Cr. P.C. In my opinion, this Court can interfere in the order of summoning the accused not sent up for trial on the grounds: (i) The Sessions Judge has no jurisdiction to issue process against such person ; (ii) There was a fundamental legal defect going to the root of the proceedings ; (iii) There was absolutely no cause against the Petitioner on the version laid in evidence oral or documentary adduced before the Court ; (iv) All the essential ingredients for the offence for which he has been summoned were not laid in the F.I.R. or did not appear in evidence ; (v) There was anything capricious or arbitrary in the exercise of such discretion by the Sessions Judge or ; (vi) There has been abuse of the process of the Court.

I find neither of these grounds available in the impugned order. In my opinion, it would be improper to interfere with the exercise of the jurisdiction by the Sessions Judge u/s 319(1) . The sufficiency of the material placed before the Court, cannot be gone into by this Court unless it is a case of no evidence at all. Whether the evidence pointed out by the learned Sessions Judge in impugned order is sufficient or not, no opinion can be expressed in this petition u/s 482, Cr. P.C. but I wish to say that it is not a case where this Court in its power u/s 482, Cr. P.C. will interfere with the discretionary power of the learned Sessions Judge u/s 319(1) of the Cr. P.C.

In view of the above, this petition is dismissed at the admission stage.