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2009 DIGILAW 1458 (ALL)

ISHARAR BEGUM v. DISTRICT/SESSIONS JUDGE DISTRICT MAINPURI

2009-04-16

B.N.SHUKLA

body2009
( 1 ) THIS writ petition has been preferred by the petitioners for quashing the impugned order dated 2-12-2008 passed by Civil Judge (SD), Court No. 2 Mainpuri and order dated 6-2-2009 passed by Sessions Judge Mainpuri. ( 2 ) HEARD learned counsel for the petitioners and learned AGA and perused the annexures filed alongwith the writ petition. ( 3 ) IT is submitted by learned counsel for the petitioners that the petitioners have no concern and they are living separately and were not making dowry demand. It is further submitted that the investigating officer after investigation has not submitted charge sheet against the petitioners and the trial court after placing reliance in the statement of PW 1 to PW-3 allowed application under section 319 Cr. P. C. and summoned the petitioners illegally and even Sessions Judge, Mainpuri has dismissed the revision without appreciating the entire evidence. Learned counsel for the petitioners has also submitted that the power under section 319 Cr. P. C. is to be exercised cautiously and the person should be summoned if mainly there is substantive direct evidence showing complicity. He has cited rulings giving in Ramesh and others vs. State of Tamil Nadu [2005 (52)ACC 45] and Brindaban Das and others vs. State of West Bengal (2009) 3 Supreme Court Cases 329. ( 4 ) LEARNED AGA submitted that there was ample evidence against the petitioners and this was the reason that the learned trial court has passed summoning order against the petitioners after allowing application under section 319 Cr. P. C. ( 5 ) UNDER section 319 Cr. P. C. power has been given to the court to proceed against other persons appearing to be guilty of offence during course of enquiry or trial. In Brindaban Das (supra) Apex Court has held that the evidence adduced against such persons must be substantive evidence in order to summon them for trial, warranting their prosecution thereafter with good chance of conviction. In Hardeep Singh and others vs. State of Punjab reported in AIR 2009 SC 483 the Apex Court has held that the word evidence under section 319 Cr. P. C. is comprehensive and used in broad sense. In this case Apex court has held that if ample evidence is available to initiate proceeding against person then court has power to summon them. P. C. is comprehensive and used in broad sense. In this case Apex court has held that if ample evidence is available to initiate proceeding against person then court has power to summon them. In the statement of PW-1 Israr Begum PW-2 Rubi Begum and PW-3 Dharampal @ Veer Bahadur Singh filed alongwith writ petition these witnesses have made allegation against the petitioners regarding dowry demand. While considering application under section 319 Cr. P. C. trial court has considered statement of these prosecution witnesses and found that there appears from evidence that these persons not being accused have committed offence for which they could be tried together with the accused and trial court has passed impugned order. Revision preferred against this order was also dismissed by the revisional court. Substantive evidence was available before the trial court while allowing application under section 319 Cr. P. C. and the impugned orders are not liable to be quashed. .