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Allahabad High Court
Dinesh Chandra Tiwari vs State Of U.P. And Ors. on 13 September, 2000
Equivalent citations: 2001 CriLJ 318
Author: U Tripathi
Bench: U Tripathi


U.S. Tripathi, J.

1. This revision has been preferred against the order dated 28-9-1999 passed by IInd Additional Sessions Judge, Kanpur Dehat in Special Session Trial No. 7 of 1999 summoning the applicant under Section 319 Cr.P.C. and issuing non-bailable warrant and process under Sections 82/83 Cr.P.C. against him.

2. The opposite party No. 2 lodged an F.I.R. against the applicant and some other persons under Sections 147, 148, 149, 302 I.P.C. and Section 3(2)(iv) SC & ST (Prevention of Atrocities) Act. On the basis of above report a case at crime No. 50 of 1998 was registered. After investigation, the police submitted charge sheet against six persons. No charge sheet was submitted against applicant. After examination of P.W. 1 respondent No. 2 moved an application for summoning the applicant and one Lala Ram in the said case for trial along with the other accused on the ground that she had lodged report against them and the witnesses also disclosed their involvement in their statement under Sec. (sic) Cr.P.C, but the police did not submit charge sheet against them.

3. Learned Special Judge on hearing learned counsel for the prosecution held that there was sufficient evidence on record to summon the above applicant and Lala Ram under Section 319 Cr.P.C. With these finding he allowed the application and summoned the applicant and Lala Ram for along with other accused. The above order has been challenged in this revision.

4. Heard the learned counsel for the applicant, learned A.G.A. and the learned counsel for respondent No. 2 and perused the record.

5. The learned counsel for the applicant contended that the order of summoning the applicant under Section 319 Cr.P.C. was passed without completion of cross-examination of P.W. 1 and investigation against applicant was pending and that the applicant be given opportunity to file objection against the summoning order before the Trial Court. He also placed reliance on Single Judge decision of this Court in Shailendra v. State of U.P. 1999 ACC 441. On the other hand learned counsel for the opposite party No. 2 contended that cross-examination of the witness is not essential for exercising power under Section 319 Cr.P.C. and there is no provision in the Cr.P.C. for filing objection by an accused summoned under Section 319 Cr.P.C.

6. Having heard the submission of the learned counsel for the parties I find no force in the above contention of applicants learned counsel.

7. Section 319 Cr.P.C. says that 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.

8. It was held by the Apex Court in the case of Joginder Singh v. State of Punjab, 1979 (16) ACC 43 : (AIR 1979 SC 1876) (SC) that the expression “any person not being accused” occurring under Section 319 Cr.P.C. clearly covers any person, who is not being tried already by the Court and very purpose of enacting such a provision like Section 319(1) clearly shows that even persons, who have been dropped by the police during investigation but against whom evidence showing their involvement in the offence comes before the criminal Court are included in the said case. The above view was repeated by the Apex Court in the case of Municipal Corporation of Delhi v. Ram Kishan Rohtagi, 1983 (20) ACC 50 : (AIR 1983 SC 67) (SC).

9. In the instant case, the name of applicant was mentioned in the F.I.R. After investigation he was not challaned. In her statement before the Trial Court (P.W. 1) Smt. Shakuntala stated about involvement of the applicant in her evidence. Section 319 Cr.P.C. is meant only for determining whether the evidence recorded in the Court prima facie indicates that some person other than the accused facing trial has committed the offence and in case, the evidence indicates the involvement of such person, he may be summoned to face trial.

10. For invoking provisions of Section 319 Cr.P.C. the cross-examination of the witness in the Court is not necessary. As held by Division Bench of this Court in the case of Ram Gopal v. State of U.P. 1999 (38) ACC 123 : (1999 All LJ 539) the term “evidence” as used in Section 319 Cr.P.C. does not mean “evidence completed by cross-examination” and the Court can take action under Section 319 Cr.P.C. even on the statement in the examination-in-chief of one or more witnesses. The observations in the Single Judge decision in the case of Shailendra v. State are thus against the Division Bench and therefore cannot be relied on.

11. It was also observed in the case of Shailendra v. State of U.P. (supra) relied on by the learned counsel for the applicant that summoning order is ex parte order and only on basis of examination-in-chief of two prosecution witnesses Updesh Singh Chauhan an Mithilesh Kumari the applicant has been summoned but their cross-examination has not been done so far. The revisionist first of all will appear and then he would be granted opportunity to cross-examine the witnesses and it is also provided that in case the revisionist moves an application to the effect that no case is made out against him or raising any other contentions which he desires to raise the learned Additional Sessions Judge will consider and dispose of the same after providing an adequate opportunity of hearing to the revisionist.

12. So far question of passing the summoning order under Section 319 Cr.P.C. before cross-examination of the witness is concerned, has been answered in the Division Bench case of Ram Gopal (supra). The direction regarding providing opportunity to the applicant to file objection against the summoning order appears to have been issued in view of Kailash Chaudhary’s case 1993 (30) ACC 665 which has been overruled in Full Bench decision of this Court in case of Ranjeet Singh v. State of U.P., 2000 (40) ACC 342 : (2000 All LJ 898) in which it was held that the aforesaid conclusion in Kailash Chaudhary’s case is not backed up the provisions in the Cr.P.C. and it amounts to reversing the procedure for trial, which is not permissible under the Cr.P.C. Challenging the order of issuing processes before the Court issuing said processes is in fact requiring the arms of the clock to move anti-clockwise which does not happen or at least should not happen. A parallel trial should not commence before the actual trial begins. Therefore, there appears no question of affording any opportunity to the applicant before passing summoning under Section 319 Cr.P.C. to cross-examine a witness or to file any objection against the summoning order proceeding further.

13. Lastly it was contended that the Trial Court has issued non-bailable warrant as well as processes under Sections 82/83 Cr.P.C. simultaneously which is harsh one. I do agree with the learned counsel for the applicant that the Trial Court ought to have issued summon to the applicant first and if he did nor respond to it, it would have issued non-bailable warrant and other processes provided under law.

14. Therefore, the revision has no force and it should be dismissed with the observation that at the first instance, the Trial Court shall issue summon against applicant and would adopt coercive measure to secure his attendance subsequents if he does not respond to the summons.

15. The revision is, accordingly, dismissed with the above observations.

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