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Allahabad High Court · body

2009 DIGILAW 3637 (ALL)

MOHIT SINGH v. STATE OF U. P.

2009-12-02

A.K.ROOPANWAL

body2009
JUDGMENT Hon’ble A.K. Roopanwal, J.—This application under Section 482, Cr.P.C. has been moved for setting aside the order dated 24.9.2009 passed by the Additional Sessions Judge, Court No. 3, Ballia, in S. T. No. 34 of 2008, State v. Ashok Singh and another, under Section 302, I.P.C. Police Station Nagra, District Ballia, whereby the Court in exercise of its power under Section 319, Cr.P.C. summoned the applicants to stand trial for the offence punishable under Section 302, I.P.C. 2. It appears from the record that the applicants alongwith others were named in the FIR. However, after investigation charge sheet was not submitted against them. After recording of the statements of PW1 Akhilanand Singh and PW2 Sanjay Singh an application was moved by the prosecution for summoning the applicants as their participation in the crime was specifically told by these witnesses. That application was allowed by the impugned order dated 24.9.2009. 3. I have heard Mr. V. P. Srivastava, learned Senior Counsel, assisted by Mr. Lav Srivastava, Mr. Shashi Kumar, learned AGA for the State and perused the record. 4. Mr. Srivastava placed two contentions in support of this application, firstly, that the co-accused Ashok Singh was tried and has been convicted, therefore, now the present applicants cannot be tried together with the co-accused Ashok Singh, which is mandatory for the application of Section 319, Cr.P.C., secondly, that the exercise of powers under Section 319, Cr.P.C. should not be exercised at a belated stage i.e. at the time when all the evidence has been concluded and there appears nothing to be decided in this case by the Court. 5. So far as the first argument is concerned, that cannot be accepted. In 2002(5) SCC 738 , Shashikant Singh v. Tarkeshwar Singh and another, it has been held by the Apex Court that if by the time the person summoned could be brought before the Court the trial is concluded, the person summoned can be tried for the offence for which he was summoned. This opinion of the Apex Court was on the basis of the interpretation of the words “could be tried together with the accused” embodied in Section 319, Cr.P.C. Therefore, this argument cannot be accepted that due to the conclusion of the trial of the co-accused the applicants cannot be tried as Section 319, Cr.P.C. would have no application. 6. This opinion of the Apex Court was on the basis of the interpretation of the words “could be tried together with the accused” embodied in Section 319, Cr.P.C. Therefore, this argument cannot be accepted that due to the conclusion of the trial of the co-accused the applicants cannot be tried as Section 319, Cr.P.C. would have no application. 6. So far as the second argument is concerned, in that regard there is no denial of this preposition that the powers under Section 319, Cr.P.C. should be exercised sparingly keeping in mind all the attending circumstances of the case. To support this argument Mr. Srivastava relied on 2000(3) SCC 262 , Michael Machado and another v. Central Bureau of Investigation and another, and 2004(13) SCC 30 , Prasanna Das and another v. State of Orissa. I feel that the facts of both these cases do not apply on the facts of the present case. In Michael Machado’s case 49 witnesses had been examined, who had not mentioned the reference of the proposed accused. Only three remaining witnesses took their name. In such view of the matter, the Apex Court was of the opinion that there was no justification at all to summon the accused on the testimony of three witnesses. That was not a case where the Apex Court had categorically refused to take cognizance against the proposed accused on the ground of delay in moving the application. 7. So far as the case of Prasanna Das is concerned, in that case the summoned accused were not supplied with the copies and were also not granted opportunity to cross-examine all the witnesses. In such circumstances the Apex Court accepted their appeal and remanded the matter back for retrial. This was not a case where the summoning order was totally quashed on the ground that it was passed at a belated stage. 8. Viewing the present case in the light of the present circumstances, we would find that the prosecution tried to get the applicants summoned at the very early stage of the trial. However, the delay took place as the matter went up to the High Court from where it was remanded and in the meantime the case of the co-accused Ashok Singh was concluded. However, the delay took place as the matter went up to the High Court from where it was remanded and in the meantime the case of the co-accused Ashok Singh was concluded. In such circumstances the delay had no meaning at all and on that basis it would not be justified to refuse or reject the prayer made by the prosecution. 9. Thus, I do feel that the argument of Mr. Srivastava that because of the fact that the delay had occurred in summoning the accused, there is no purpose at all to bring the applicants to books. 10. It appears from the impugned order that two star witnesses have categorically right from the beginning assigned the active participation of the applicants in the crime and in such view of the matter, there was every genuine cause with the trial Court to bring them to books to try them for the offences complained of against them. 11. In view of the above, I do not find any illegality or impropriety in the order impugned in this application. 12. The application is rejected. However, it is expected that the Court concerned shall decide the bail application as per law laid down in Lal Kamlendra Pratap Singh v. State of U.P. and others, 2009(2) Crimes 4 SC. ———