Subhash Chandra Tiwari And Others vs State Of U.P. & Another on 2 August, 2010

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

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