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Allahabad High Court · body

2003 DIGILAW 634 (ALL)

TULSI v. STATE OF U. P.

2003-03-26

R.C.DEEPAK

body2003
R. C. DEEPAK, J. ( 1 ) THE present criminal revision has been preferred by the revisionists tulsi S/o Raj Kishor and Vijay Singh S/o prasiddha Narain R/o Village Adhanpur, police Station Nevadhiya, District Jaunpur against the order dated 7-3-2003 passed by the then Additional District and Sessions judge/fast Track Court IInd, Jaunpur in sessions Trial No. 320 of 2001, summoning them under Section 319, Cr. P. C. to stand trial for the offence punishable under Sections 147, 148, 149, 307, 302, 323, 324 and 506, IPC. ( 2 ) THE abovenamed revisionists have filed a copy of First Information Report in the Case Crime No. 97 of 1999, statements of Girja Shanker Singh, Smt. Ram Rati, Smt. Meera Devi, report of the Investigating Officer, copy of the charge-sheet and copy of the application dated 27-2-2003, marked as annexures 1 to 7 respectively, in support of their revision. ( 3 ) A perusal of the First Information report (Annexure 1) shows that the complainant Ashok Kumar Singh S/o Girja shanker Singh R/o Village Adhanpur, P. S. Nevadhiya, District Jaunpur lodged a report with the police station Nevadhiya, Jaunpur mentioning therein that on 25-7-1997 at about 7 am. Tulsi, Vijay Singh (Revisionists) along with 7 others armed with Ballams. Swords and country made pistols came to his house and started digging his land to raise construction whereupon his younger brother Bachcha alias Udrej came out from his house. On the exhortation of co-accused paras, Vishwanath and Megh Nath, accused ravindra Kumar Singh committed his (Bachcha alias Udrej) murder with his country made pistol. Hearing the hue and cry his elder brother, father, other brother hawaldar Singh rushed to the place of occurrence, Ravindra Kumar Singh caused fire arm injuries to his elder brother and co-accused Babloo, Vikki, Vishwanath, Tulsi and Vijay Singh caused injuries to them with spears and sword. After sustaining injuries they fell down on the ground. Smt. Meera devi and Smt. Ram Rati are also alleged to have witnessed the occurrence. ( 4 ) THE Investigating Officer investigated into the matter and submitted charge-sheet against 7 persons exonerating the abovenamed revisionists. The accused were committed to the Court of Sessions for trial. The Examination-in-Chief of complainant ashok Kumar Singh was recorded. He supported the facts mentioned in the First information Report (Annexure 1) clearly stating therein the involvement of the revisionists in the offence. The accused were committed to the Court of Sessions for trial. The Examination-in-Chief of complainant ashok Kumar Singh was recorded. He supported the facts mentioned in the First information Report (Annexure 1) clearly stating therein the involvement of the revisionists in the offence. Thereafter he moved an application dated 27-2-2003 requesting therein for summoning them under Section 319, Cr. P. C. The application was allowed against which the present revision has been filed as referred to above. ( 5 ) I have heard Sri H. N. Singh, learned counsel for the revisionists, learned Additional Government Advocate for the. State and perused the entire record. ( 6 ) LEARNED counsel for the revisionists has emphatically argued that the revisionists were named as accused in the First information Report but during the course of investigation and interrogation under Section 161, Cr. P. C. in particular, the witnesses girja Shanker Singh, Smt. Ram Rati and smt. Meera Devi have not named them indicating their involvement in the offence. Thus the Investigating Officer could not collect any evidence against them and exonerated them. In this continuation he has further argued that the trial Court has summoned them on the solitary statement of the complainant Ashok Kumar Singh irwhis Examination-in-chief and that that statement is no evidence in the eye of law for all these he has relied upon Sohan Lai v. State of rajasthan, reported in AIR 1990 SC 2158 . The Honble Supreme Court has made observations in this case as under :"the above views have to yield to what is laid down by this Court in the decisions above referred to. The provisions of Section 319 had to be read in consonance with the provisions of S. 398 of the Code. Once a person is found to have been the accused in the case he goes out of the reach of S. 319. Whether he can be dealt with under any other provisions of the Code is a different question. In the case of the accused who has been discharged under the relevant provisions of the Code, the nature of finality to such order and the resultant protection of the persons discharged subject to revision under S. 398 of the Code may not be lost sight of. In the case of the accused who has been discharged under the relevant provisions of the Code, the nature of finality to such order and the resultant protection of the persons discharged subject to revision under S. 398 of the Code may not be lost sight of. This should be so because the complainants desire for vengeance has to be tempered with though it may be as Sir James stephen says : the Criminal Law stands to the passing of revenge in much the same relation as marriage to the sexual appetite. (General view of the Criminal Law of England, p. 99 ). The A. P. P. s application under Section 216, in so far as the appellants 1 to 3 were concerned, could be dealt with under S. 216. Appellants 4 and 5 could be dealt with neither under S. 216, nor under S. 319. In that view of the matter the impugned order of the Magistrate as well as that of the High court insofar as the appellants 4 and 5, namely, Vijaya Bai and Jiya Bai are concerned, have to be set aside which we hereby do. The appeals are allowed to that extent. " ( 7 ) I have carefully gone through the judgment in the above case. The facts and circumstances in the above case are quite dif- ferent from those of the present case, therefore, the argument of the learned counsel for the revisionists is not tenable. ( 8 ) SECTION 319, Cr. P. C. reads as under :319. Power to proceed against other persons appearing to be guilty of offence. (1) 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. (2) Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid. (3) Any person attending the Court, although not under arrest or upon a summons may be detained by such Court for the purpose of the Inquiry into, or trial of, the offence which he appears to have committed. (3) Any person attending the Court, although not under arrest or upon a summons may be detained by such Court for the purpose of the Inquiry into, or trial of, the offence which he appears to have committed. (4) Where the Court proceeds against any person under sub-section (1) then (a) the proceedings in respect of such person shall be commenced afresh, and the witnesses re-heard; (b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced. ( 9 ) IT is apparently clear from the provisions of Section 319, Code of Criminal Procedure that where in the course of inquiry 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 not be tried together with that accused, the Court may proceed against such person for the offence which he appears to have committed. ( 10 ) IN case of Joginder Singh v. State of punjab, reported in 1979 ACC 43 : ( 11 ) THE following observations have been made by the Honble Apex Court (Para 9): "as regards the contention that the phrase "any person not being accused occurring in Section 319 excludes from its operation an accused who has been released by the police under Section 169 of the Code and has been shown in column No. 2 of the charge-sheet, the contention has merely to be stated to be rejected. The said expression clearly covers any person who is not being tried already by the Court and the 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 expression. ( 12 ) IN this continuation it is pertinent to mention here that the Honble Supreme court has further reiterated this very view in another case of Municipal Corporation of delhi v. Ram Kishan Rastogi, reported in air 1983 SC 67 : (1983 Cri LJ 159) and smt. ( 12 ) IN this continuation it is pertinent to mention here that the Honble Supreme court has further reiterated this very view in another case of Municipal Corporation of delhi v. Ram Kishan Rastogi, reported in air 1983 SC 67 : (1983 Cri LJ 159) and smt. Rukhasana Khatoon v. Sakhawat husain, reported in AIR 2002 SC 2342 : (2002 All LJ 1516): (2002 Cri LJ 2969) which is implicitly clear as under : "in our view, the impugned order is, on the face of it, illegal and erroneous. It is against the provisions of S. 319. Cr. P. C. and the decisions rendered by this Court interpreting the same. In Kishun Singh v. State of Bihar, (1993) 2 SCC 16 : (1993 AIR SCW 771) this Court considered a case where a fir was lodged naming 20 persons including the two appellants as assailants of the deceased who died in the occurrence. After investigation, police submitted its report under Section 173, Cr. P. C. showing 18 persons other than the two appellants as offenders. The Magistrate committed those 18 persons named in the report to the Court of session under Section 209, Cr. P. C. to stand trial. Before Sessions Court, an application under Section 319 of the Code was filed praying that remaining two accused be summoned and arranged as accused. The sessions Court impleaded them as co-accused. That order was finally challenged before this court and the Court dismissed the appeal by holding that Section 319, can be invoked both by the Court having original jurisdiction as well as the Court to which the case has been committed or transferred for trial. Similar is the view taken in Girish Yadav v. State of M. P. , (1996) 8 SCC 186 : ( AIR 1996 sc 3098 ) : (1996 Cri LJ 2159 ). ( 13 ) CONSIDERING the facts as stated above. I arrive at an irresistible conclusion that the court of Sessions has committed no illegality or irregularity in summoning the revisionists as accused vide its order dated 7- 3-2003. Therefore, the order dated 7-3-2003 is hereby confirmed. ( 14 ) THE revision is accordingly dismissed. Petition dismissed.