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2009 DIGILAW 203 (ALL)

KRISHNA PAL v. STATE OF U. P.

2009-01-22

VINOD PRASAD

body2009
JUDGMENT Hon’ble Vinod Prasad, J.—The order dated 11.2.2008 passed by Addl. District and Sessions Judge in S.T. No. 1122 of 2006, State v. Ram Charan and another, under Sections 307 and 504, IPC has been questioned in this application under Section 482, Cr.P.C. invoking inherent jurisdiction of this Court. 2. I have heard learned counsel for the applicant at a great length and perused the record including Annexure-3 and the impugned order. 3. Sri Chauhan, learned counsel for the applicant raised many contentions first being that during the investigation the complicity of the applicant was found to be false, secondly, only the role of exhortation has been assigned to the present applicant in the deposition of the injured recorded in the aforesaid sessions trial, thirdly, the applicant has no criminal history and has got no conviction to his credit and lastly, he relied upon a judgment of Apex Court, reported in 2007(58) ACC 254, Mohd. Shafi v. Mohd. Rafique and another, to support his argument that the summoning of the applicant exercising power under Section 319, Cr.P.C. is bad in law and the impugned order be quashed. 4. Learned AGA vehemently refuted all the contentions raised by the learned counsel for the applicant. 5. Dealing with the contentions raised by the learned counsel for the applicant first of all material collected during investigation is wholly irrelevant and is beyond the scope of Section 319, Cr.P.C. What is to be looked into, for summoning a person under Section 319, Cr.P.C., is the recorded evidence during trial and not materials collected during investigation. All the allegations made during the investigation are alien for exercise of power under Section 319, Cr.P.C., therefore, first contention raised by the learned counsel for the applicant is hereby repelled. 6. Coming to the second contention that the only role of exhortation has been assigned to the applicant, the applicant can very well be convicted with aid of Section 34 or 149 of I.P.C. 7. Coming to the third contention that applicant does not have any criminal history and therefore, should not be prosecuted, to say the least, the said argument is wholly irrelevant and has been advanced without any basis. 8. Coming to the judgment relied upon by the applicant, the said decision does not apply at all on the fact of the present case. What happened in the case of Mohd. 8. Coming to the judgment relied upon by the applicant, the said decision does not apply at all on the fact of the present case. What happened in the case of Mohd. Shafi was that the trial Judge, on the basis of examination-in-chief only did not thought it fit to summon the accused by exercise of power under Section 319, Cr.P.C. Informant being aggrieved from the aforesaid inaction on the part of the trial Judge approached the concerned High Court challenging the non-summoning of the accused. The High Court while allowing the prayer of the informant set aside the order passed by the trial Judge and directed the trial Judge to summon the accused persons. The accused was aggrieved by the order passed by the High Court against him and therefore, he had approached the Supreme Court. The Apex Court set aside the order of the High Court for the reasons that under Section 319, Cr.P.C. it is the satisfaction of the Trial Judge to summon any person as an accused. The High Court cannot substitute its satisfaction with that of the trial Judge. The Apex Court has held that if the trial Judge was not satisfied only on the basis of examination-in-chief to summon the accused, no fault can be find with the order of the trial Judge and therefore, the Apex Court set aside the order of High Court. This fact is clear from paragraph 12 and 13 of the aforesaid judgment of Mohd. Shafi (supra). That is not the situation here. The trial Judge was satisfied that the present applicant can be tried alongwith already trying accused persons and the evidence led before it is sufficient to summon him by exercising power under Section 319, Cr.P.C. The said opinion of the trial Judge cannot be said to be capricious, illegal or not sustainable in law. 9. In view of the above discussions, I find no reason to set aside the impugned order dated 11.2.2008 passed by Additional Sessions Judge in S.T. No. 1122 of 2006, State v. Ram Charan and others. This application is, therefore, devoid of merit and is hereby dismissed. 10. After this order was passed, learned counsel for the applicant requested for a direction for disposal of bail prayer of the applicant in the aforesaid trial. 11. This application is, therefore, devoid of merit and is hereby dismissed. 10. After this order was passed, learned counsel for the applicant requested for a direction for disposal of bail prayer of the applicant in the aforesaid trial. 11. On the peculiar facts of the case, I direct the trial Judge to consider and dispose of the bail prayer of the applicant in the aforesaid trial on the same day on which it is moved after hearing the public prosecutor as complete materials against the applicant is already available with the trial Judge. 12. This application stands dismissed with aforesaid direction. ————