Allahabad High Court
Raghunath Shastri vs State Of U.P. And 6 Others on 5 July, 2022
Author: Karunesh Singh Pawar
Bench: Karunesh Singh Pawar
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 89 Case :- CRIMINAL APPEAL No. - 5809 of 2021 Appellant :- Raghunath Shastri Respondent :- State Of U.P. And 6 Others Counsel for Appellant :- Pavan Kumar Srivastava Counsel for Respondent :- G.A.,Kamal Kumar Singh Hon'ble Karunesh Singh Pawar,J.
Heard learned counsel for the appellant and learned Additional Government Advocate as also Mr. Kamal Kumar Singh, learned counsel for respondents 2 to 7.
Under challenge is the impugned order dated 16.10.2021 passed by Special Judge (SC/ST), Mau in Sessions Trial No.113 of 2017 (State Vs. Angad Singh) arising out of case crime no.77 of 2013, under Sections 147, 323,504,506, 452, 395 I.P.C. and Section 3(1)(10) of S.C./S.T. Act, P.S. Kotwali, District Mau by which learned Special Judge has rejected the application under section 319 CrPC filed by the appellant wherein it was prayed that the respondents 2 to 7 be summoned in the aforesaid sessions trial.
Learned counsel for the appellant submits that his application under section 319 CrPC has been rejected by the trial court on the ground that the earlier application under section 319 CrPC was rejected by the trial court vide order dated 4.12.2019 which is on record, after considering the statements of P.W.1 and P.W.2. Against this order dated 4.12.2019, the appellant had filed a 482 petition No.3109 of 2020 Raghunath Shastri versus State of U.P. and six others, which was dismissed as mis-conceived vide order dated 28.1.2020. Order dated 28.1.2020 is extracted below :
"Heard learned counsel for the applicant, learned AGA for the State and perused the record.
The instant application under Section 482 Cr.P.C. has been filed by the applicant with a prayer to quash the order dated 4.12.2019 passed by the learned Special Judge, S.C./S.T. Act, Mau in Special Sessions Trial No.113 of 2017 (State Vs. Angad Singh) arising out of case crime no.77 of 2013, under Sections 323,325,504,506 IPC and Section 3(1)(10) of S.C./S.T. Act, P.S. Kotwali, District Mau whereby the application moved on behalf of the applicant under Section 319 Cr.P.C. against the accused respondent nos.2 to 7 to summon them to face the trial has been rejected.
From the perusal of the application under Section 319 Cr.P.C. it is absolutely clear that it has been moved only on the basis of statement of the complainant and other witnesses recorded under Section 161 Cr.P.C.
Hence this application is absolutely misconceived. It is accordingly dismissed at this stage. "
Learned counsel for the appellant submits that Coordinate Bench of this Court while rejecting the application under section 482 CrPC failed to appreciate that earlier application under section 319 CrPC moved by the appellant was filed after statements of P.W.1 and P.W.2 have been recorded by the trial court and it has been rejected under the impression that application under section 319 CrPC has been moved only on the basis of the statements of the complainant and other witnesses recorded under section 161 CrPC.
Per contra, Mr. Kamal Kumar Singh, learned counsel for respondents 2 to 7 submits that a perusal of the first application moved by the appellant under section 319 CrPC depicts that the said application was moved only on the basis of statement given by prosecution witnesses under section 161 CrPC. The fact that statement of P.W.1 and P.W.2 has been recorded has been concealed by the appellant/applicant while arguing the 482 CrPC petition. The application under section 319 CrPC dated 25.11.2017 nowhere refers to the statement of P.W.1 and P.W.2 recorded before the trial court, therefore, under this impression and suppression of this material fact, the Court was persuaded to pass order dated 28.1.2020.
The trial court while rejecting the application of the appellant vide its order dated 16.10.2021 has considered the fact that P.W.1 and P.W.2 both have been examined before the trial court. In the said order, it has been mentioned that the statement of P.W.1 Raghunath Shashtri has been completed on 1.10.2019. The statement of other witness, i.e. P.W.2 Chandrawati Devi has been concluded on 6.6.2019. At the time of rejecting first application under section 319 CrPC, the application under Section 319 CrPC given by the applicant was considered and decided on merit after considering the statements of P.W.1 and P.W.2 and therefore, the trial court has no jurisdiction to review its earlier order which has been passed on merit and accordingly has rejected the application under section 319 CrPC given by the applicant.
On due consideration to the arguments advanced by learned counsel for the parties and perusal of the record, it appears that while moving the first application under section 319 CrPC, the applicant in that application has not disclosed the fact that the statements of P.W.1 and P.W.2 have been recorded before the trial court. It appears that respondents 2 to 7 were not represented in the first round of litigation and this court on the basis of pleadings made by the applicant has passed the order dated 28.1.2020 in the petition filed under section 482 CrPC.
A perusal of the order dated 4.12.2019 further shows that the same has been passed on merit by the trial court after considering the statements of P.W.1 and P.W.2. Therefore, I do not find any illegality in the impugned order dated 16.10.2021 passed by the Special Judge. The appeal being devoid of merit is dismissed.
At this stage, learned counsel for the appellant after conceding the fact that the statements of P.W.1 and P.W.2 have already been recorded while moving his first application under section 319 CrPC prays that he may be granted liberty to file appropriation application under section 319 CrPC if the complicity of respondents 2 to 7 is found in further statements of prosecution witnesses. Learned A.G.A. has no objection to this innocuous prayer.
Accordingly, liberty is granted to learned counsel for the appellant to move appropriate application, if occasion so arises.
Order Date :- 5.7.2022 kkb.