Court No. - 50 Case :- CRIMINAL REVISION No. - 2895 of 2010 Petitioner :- Shyam Sundar & Others Respondent :- State Of U.P. & Another Petitioner Counsel :- K.K. Dwivedi Respondent Counsel :- Govt. Advocate Hon'ble Ashok Kumar Roopanwal,J.
This criminal revision is directed against the order dated 9.7.10 passed by
the Special Judge, SC/ST Act/Additional Sessions Judge, Agra whereby the
court in exercise of the powers under Section 319, Cr.P.C. summoned the
revisionists to stand trial for the offences punishable under Sections 323/34,
307/34, 427, 504, 506, IPC and 3(2)(5), SC/ST Act.
It appears from the record that the revisionists and some others were
nominated in the FIR but after investigation the revisionists were exonerated.
Thereafter, when the case came at the stage of trial and the statement of PW-1
was recorded, he clearly stated that the revisionists were also amongst those
who committed the occurrence. Relying on the statement of PW-1 the trial
court passed the impugned order.
Heard Mr. K.K. Dwivedi, learned counsel for the revisionists, learned AGA
and perused the record.
Mr. Dwivedi argued two points in support of this revision. Firstly, that the
application under Section 319, Cr.P.C. was incompetent on behalf of the
witness as it was not forwarded by the Public Prosecutor and secondly, the
court should have exercised the powers only after the examination of some
other witnesses.
So far as the first point is concerned, in that regard I would like to say that
even a witness can move an application under Section 319, Cr.P.C. without it
being forwarded by the Public Prosecutor. It is clear from the definition of
Section 319, Cr.P.C. It says that where, in the course of 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.
It appears from the definition that if any person not being an accused has
committed an offence for which such person could be tried together with the
accused, the court may proceed against such accused. The gist of this
definition is that the court can exercise the discretion if it appears to the court
that some person other than the accused already on trial had also committed
the occurrence. This provision does not bar that the court cannot act on the
initiation of a witness.
So far as the second argument is concerned that the statement of PW-1 was
not sufficient to exercise the powers under Section 319, Cr.P.C., in that regard
I would like to say that Mr. Dwivedi has not been able to show as to why the
statement of PW-1 was not sufficient to summon the revisionists.
I have gone through the statement of PW-1 and my view is that the
statement is of the nature which if considered independently that in all
probabilities would fasten guilt upon the revisionists for the offence
punishable under Sections 323/34, 307/34, 427, 504, 506, IPC. As Section
3(2)(5), SC/ST Act is only an enabling Section, the cognizance in it is
infructuous and it can be seen only at the time of the conclusion of the trial as
to whether the conviction is liable to be enhanced in the light of Section 3(2)
(5), SC/ST Act or not.
In view of the above, I do not find any merits in this revision. Revision is
dismissed.
However, liberty is given to the court below to decide the bail application
of the revisionists, if moved, within a period of 15 days from today
expeditiously and if there is no impediment to decide it on the same day, the
same day. During this period no coercive measure shall be issued and if
issued, shall remain stayed.
Order Date :- 30.7.2010
T. Sinha