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2009 DIGILAW 3217 (ALL)

TARA v. STATE OF U. P.

2009-10-07

AMAR SARAN

body2009
JUDGMENT Hon’ble Amar Saran, J.—Heard Shri P.N. Misra and Sri Jitendra Pal Singh, learned counsel for the revisionists, Shri M.C. Gupta for opposite party No. 2 and learned Additional Government Advocate. 2. This criminal revision has been filed against an order dated 14.9.2009 passed by the Additional Sessions Judge, FTC No. 4, Mathura in ST No. 87 of 2009, summoning the revisionists under Sections 147, 323/149, 307/149, 452 and 506, IPC in exercise of powers under Section 319 of the Code of Criminal Procedure. 3. The revisionists were summoned after the evidence of the informant PW 1 Smt. Shyamwati and one of the injured PW 2 Sahab Singh which disclosed that on the date of incident the revisionists and the other co-accused had assaulted the injured with various weapons at about 3 p.m. Prior to this after the police had submitted a final report, a protest petition was filed by the complainant, Shyamwati, and then after following the procedure of a complaint case the 6 co-accused other than the revisionists were summoned on 10.3.08, but no order was passed summoning the revisionists. 4. No contention was raised on merit by the learned counsel for the revisionists. Only one submission was made, that as the learned Judicial Magistrate, Court No. 8, Mathura had refused to summon the revisionists by the order dated 10.3.2008, whilst summoning the co-accused Gyani, Bhagat Singh, Ram Babu, Yashpal, Kripal and Suresh, it amounted to an order discharging the revisionists. It was contended that a discharged revisionist could not be summoned in exercise of powers under Section 319, Cr.P.C. In support of this contention, learned counsel has placed reliance in the case of Sohan Lal and others v. State of Rajasthan, 1990 SCC (Cri) 650. 5. I am not in agreement with the submission of the learned counsel. Sohan Lal’s (supra) case is clearly distinguishable from the present case. In Sohan Lal the police had submitted a charge sheet under Section 173, Cr.P.C against the accused persons under Sections 147/323/325/336/427, IPC on which the Judicial Magistrate had taken cognizance Subsequently the Magistrate had passed an order discharging the two appellants (4 and 5), whilst charging the appellants 1, 2 and 3 only under Section 427, IPC. In Sohan Lal the police had submitted a charge sheet under Section 173, Cr.P.C against the accused persons under Sections 147/323/325/336/427, IPC on which the Judicial Magistrate had taken cognizance Subsequently the Magistrate had passed an order discharging the two appellants (4 and 5), whilst charging the appellants 1, 2 and 3 only under Section 427, IPC. The apex Court observed that so far as the 3 accused who had been charged under Section 427, Cr.P.C. as they were already accused before the Court, they could have been summoned under the other Sections 147/427/336/323/325, IPC only in exercise of powers under Section 216, Cr.P.C., which permits alteration of the sections for which an accused is charged, but not in exercise of powers under Section 319, Cr.P.C. The said summoning order was therefore upheld. However, so far as the two accused who had been discharged under all sections, it was not proper to summon them in exercise of powers either under Section 216, Cr.P.C or under Section 319, Cr.P.C. Having been discharged under all sections appellants 4 and 5 could not be summoned under any section, as powers under Section 216, Cr.P.C. only lie for adding or altering an existing charge. They could also not be summoned in exercise of powers under Section 319, Cr.P.C because in view of the order discharging them in purported exercise of powers under Section 245, Cr.P.C., the said order it was observed by the Apex Court had attained finality and it could only be set aside after an enquiry by the Sessions Judge or High Court after the enquiry as contemplated under Section 398, Cr.P.C. 6. In the present case, after a final report was submitted, on a protest petition, the Magistrate had decided to adopt the procedure of a complaint case, and after examining the complainant Smt. Shyamwati under Section 200, Cr.P.C. (and the other injured witness Sahab Singh under Section 202, Cr.P.C, the 6 co-accused were summoned, but no order was passed summoning the the revisionists, even though they were also nominated as having taken an active part in attacking the injured with weapons. The said order refusing to summon the revisionists, because the Magistrate is of the opinion that there is no sufficient evidence at that stage to proceed against them, could at the highest only be described as an order dismissing the complaint against them under Section 203, Cr.P.C. 7. The said order refusing to summon the revisionists, because the Magistrate is of the opinion that there is no sufficient evidence at that stage to proceed against them, could at the highest only be described as an order dismissing the complaint against them under Section 203, Cr.P.C. 7. Moreover, an order refusing to summon particular accused purportedly in exercise of powers under Section 203, Cr.P.C. is completely different from an order discharging the accused under Sections 227, 239, 245 and 249, Cr.P.C. As Sohan Lal (supra) itself clarifies that so far as proceedings against an accused against whom initially a police report was filed pursuant to the FIR under Section 190(1)(a), but a final report was submitted, there was no fetter in summoning other accused in exercise of powers under Section 319, Cr.P.C. The Apex Court in Joginder Singh v. State of Punjab, 1979 (1) SCC 345 , has clarified that simply because a person was named as an accused in the FIR, he would still be “any person not being the accused” and an accused who has not been charge sheeted would clearly be considered as “any person not being the accused.” The position of the accused against whom a complaint has been filed before a Magistrate under Section 190(1)(a), but where the Magistrate has refused to proceed against him by summoning him, or dismissed the complaint against him in exercise of powers under 203, Cr.P.C. is similar to the case of an accused who was not charge sheeted by the police and no order taking cognizance against him had been passed by the learned Magistrate. 8. The Apex Court has observed in S.S. Khanna v. Chief Secretary, Patna, (1983) 3 SCC 42 , that where some accused persons against whom a complaint had been filed along with other persons, against whom the Court was not proceeding after the enquiry under Section 202, Cr.P.C, the said accused persons could be summoned at a later stage in exercise of powers under Section 319, Cr.P.C. to stand trial along with earlier charge sheeted accused for the same or a connected offence. The said decision, which has been cited by the learned trial judge applies on all fours to the facts of the instant case where the Magistrate has not chosen to proceed against the accused-revisionists accused after the complainant and other witnesses statements were recorded under Sections 200 and 202, Cr.P.C. Thereafter after the witnesses PW 1 (complainant) and PW 2, an injured were examined the revisionists had been summoned as the evidence recorded also suggested their involvement in the offence. 9. In view of the aforesaid discussion I see not illegality in the said order. The Revision is devoid of merit and is dismissed. ———