Allahabad High Court
Subhash Chandra Tiwari And Others vs State Of U.P. & Another on 2 August, 2010
Court No. - 45 Case :- APPLICATION U/S 482 No. - 18920 of 2010 Petitioner :- Subhash Chandra Tiwari And Others Respondent :- State Of U.P. & Another Petitioner Counsel :- Shiva Kant Srivastava Respondent Counsel :- Govt. Advocate Hon'ble Rajesh Dayal Khare,J.
Heard learned counsel for the applicants and learned A.G.A. for the State respondent.
The present 482, Cr.P.C. application has been filed against the summoning order dated 20.6.2003 passed in Magistrate Trial No. 5106 of 2001 under Section 143, 147, 353, 341, 427, 504, 506 IPC and 7 Criminal Law Amendment Act by Chief Judicial Magistrate, Azamgarh, whereby applicants have been summoned under Section 319, Cr.P.C. to face trial under the charged sections.
It is contended by the learned counsel for the applicants that though the applicants were named in the first information report but after investigation, the Investigating agency found complicity of the applicants to be false and, therefore, exonerated them and submitted charge sheet against other accused persons, as such, order impugned dated 20.6.2003 be set aside. In support of his contention learned counsel for the applicants 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 under Section 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 under Section 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 2004(50) ACC 343 and in the case of Mohd. Shafi Vs. Mohad. Rafiq and another, reported in 2007(58) ACC 254. Learned counsel for the applicants has also relied upon the judgment of Hon'ble Apex Court reported in 2009 (2) SCC 696 (Lal Suraj alias Suraj Singh another Vs. State of Jharkhand), in support of his contention. Learned counsel for the applicants has further relied upon a decision of Hon'ble Apex Court reported in 2009 (65) 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 applicants came into light in the statements of P.W.1 Radheyshyam and P.W. 2 Satyadeo Prasad Rai in their examination-in-chief, therefore, the order impugned summoning the applicants in exercise of power under Section 319, Cr.P.C. has rightly been passed and there is no illegality in the impugned order. Under Section 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 U.P. 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 under Section 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 under Section 319, Cr.P.C.
From the perusal of the statements of P.W. 1 and P.W. 2, since there are specific allegations against the applicants, 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 20.6.2003 is hereby refused.
However, considering the facts and circumstances of the case it is provided that if the applicants appear and surrender before the court below within a period of 30 days from today and apply for bail, then their 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 U.P., reported in 2004(57) ALR-290 and in the recent decision of Hon'ble Supreme Court dated 23.3.2009 in Criminal Appeal No. 538 of 2009, Lal Kamlendra Pratap Singh v. State of U.P.,, 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 applicants.
With the aforesaid directions, this application is disposed off. Order Date :- 2.8.2010 Sunil Kumar Gupta/Ashish