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2009 DIGILAW 1117 (ALL)

FIROZ AHMAD v. STATE OF U P

2009-04-06

B.N.SHUKLA

body2009
( 1 ) THIS revision has been preferred by the revisionists against the order dated 7-3-2009 passed by the Addl. Sessions Judge / Fast Track Court No. 1 Azamgarh whereby allowing the application dated 22-10-2008 under section 319 Cr. P. C. moved by the respondent no. 2 and directed to summon the revisionists to face trial alongwith other accused persons. ( 2 ) HEARD learned counsel for the revisionists, Sri Sanjay Kumar advocate appearing from the side of opposite party no. 2 and the learned AGA and perused the impugned order and other records. Learned counsel for the revisionist has argued that initially 8 accused persons were named in the F. IR. assigning weapons to them but the police submitted charge sheet only against 5 accused persons and name of the revisionists were exonerated. It is further submitted that the application under section 173 (8) Cr. P. C. moved by the opposite party no. 2 for reinvestigation was rejected by Addl. Chief Judicial Magistrate-II Azamgarh and the respondent no. 2 preferred revision which was also dismissed by the Addl. Sessions Judge Court No. 7, Azamgarh on 17-7-2006. When the trial court proceeded and evidence of PWs. were recorded then respondents moved an application under section 319 Cr. P. C. for summoning the revisionists which has been allowed by the impugned order and there was no evidence against the revisionists and even in the statement recorded under section 161 Cr. P. C. there was no allegation against the revisionists. Learned counsel for the revisionists has cited rulings given in Kailash vs. State of Rajasthan [2008 (63) ACC 194], Mohd. Shafi vs. Mohd. Rafiq and another [2007 (58) ACC 254] and Krishnappa vs. State of Karnataka [2004 (50 ACC 343]. ( 3 ) LEARNED AGA contended that there was ample evidence before the court and on the basis of which application under section 319 Cr. P. C. has been allowed by the court and the revisionists were summoned to face trial alongwith other co-accused. Merely because no fire arm injury has been caused, there was no occasion to reject the application under section 319 Cr. P. C. Under section 319 Cr. P. C. has been allowed by the court and the revisionists were summoned to face trial alongwith other co-accused. Merely because no fire arm injury has been caused, there was no occasion to reject the application under section 319 Cr. P. C. Under section 319 Cr. P. C. power has been given to the court that during the course of enquiry or trial, if it appears from the evidence that any person, not being accused, has committed any offence for which such person should be tried together with the accused, the court may proceed against such person for the offence which he appears to have committed. In Hardeep Singh and others vs. State of Punjab reported in AIR 2009 SC 483 the Apex Court has held that the word evidence used is comprehensive and broad sense. The court has also considered ruling given in Joginder Singh vs. State of Punjab reported in 1979 SCC 345 . It is undisputed fact that the respondent no. 2 has moved an application under section 319 Cr. P. C. when he has examined himself. ( 4 ) OTHER witnesses were also examined. They have named the revisionists showing their prima facie involvement in the occurrence. Merely because the statements have not been given by the witnesses under section 161 Cr. P. C. to the investigating officer not implicated the accused persons in case the testimony of the witnesses on oath could not be brushed aside at the stage considering their statement by the court on the application under section 319 Cr. P. C Learned counsel himself has considered this fact that the witnesses have implicated the revisionists in their statement before the court. The contradiction pointed out by the learned counsel for the revisionists may be looked into by the court below during trial period but at the stage of summoning of the revisionists under section 319 Cr. P. C. the court has to simply look into the evidence and it appears that from the evidence involvement of the revisionists is made out so that they should be tried with other accused then the court is competent to proceed against the revisionists. Even in the ruling cited from the side of the revisionists in Kailash, Mohd. Shafi and Krishnappa (supra) it is the view of the court that after considering the evidence, court will pass order on the application under section 319 Cr. Even in the ruling cited from the side of the revisionists in Kailash, Mohd. Shafi and Krishnappa (supra) it is the view of the court that after considering the evidence, court will pass order on the application under section 319 Cr. P. C. From the impugned order it appears that the court concerned has considered prima facie evidence available before the court concerned considering the application under section 319 Cr. P. C. and the impugned order has been passed in which no illegality or material irregularity is found. Revision has no force and dismissed. .