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2011 DIGILAW 2951 (ALL)

Chand Kali v. State of U. P.

2011-12-22

NAHEED ARA MOONIS

body2011
Naheed Ara Moonis, J. Heard Sri Manvendra Singh ,learned counsel appearing on behalf of the revisionist and learned AGA and have been taken through the record. The instant revision has been filed against the order dated 18.11.2011 passed by Additional Sessions Judge Court No.6 Fatehpur in Sessions Trial No. 214 of 2010 arising out of Case Crime No. 71A of 2008 under section 307 IPC Police Station Khaga District Fatehpur whereby the application moved by the complainant revisionist under section 319 Cr.P.C. was rejected The genesis of the case as surfaced in a short compass by the prosecution is that the revisionist (complainant) filed an application under section 156 (3) Cr.P.C. before the court below . The learned Magistrate took cognizance of the matter and directed to investigate and register the case . The first information report was lodged against Harish Chandra, Gyan Singh, Amar Singh , Kishun Pal and Baboo vide Case Crime No.71A of 2008 under section 147/148/307 IPC . The investigating officer proceeded to investigate the matter. After collecting the material evidence Harish Chandra , Amar Singh and Babu Lodh . The accused persons Gyan Singh and Kishun Pal were exonerated . Final report was submitted against them. After submission of the charge sheet, the case was committed to Sessions Trial No. 214 of 2010 ( State Vs. Harish Chandra and others ) . During trial the statement of the Smt. Chand Kali and Raju was recorded as P.W. 2 & 3. The statement of Smt. Chand Kali (P.W.1) and Raju (P.W.) shows that the accused Gyan Singh, and Kishun Pal were also involved in the commission of the offence and were assigned the role of firing which hit Raju. The investigating officer did not conduct the investigation in fair and impartial manner therefore, Gyan Singh and Kushun Pal were not charge sheet. In these circumstances revisionist moved an application under section 319 Cr.P.C. on 12.7.2011 with a prayer that the Gyan Singh and Kishun Pal may be summoned as they were actively involved in committing the said crime but the court below rejected the application under section 319 Cr.P.C. on extraneous consideration. Learned counsel for the revisionist had laid emphasis that there exists a possibility that the accused so summoned is in all likelihood would be convicted. The question of testing the evidence by cross examination would arise only after addition of the accused. Learned counsel for the revisionist had laid emphasis that there exists a possibility that the accused so summoned is in all likelihood would be convicted. The question of testing the evidence by cross examination would arise only after addition of the accused. There was no embellishment in the statement of the witnesses. They had unearthed the actual of all the accused persons which cannot be gainsaid at the threshhold. There was sufficient evidence against the accused persons before the court below and the court below has committed mini-trial by exonerating the accused persons without summoning them under section 319 Cr.P.C. though section 319 Cr.P.C delineates as under :- "319 Power to proceed against other persons appearing to be guilty of offence. (1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the court may proceed against such person for the offence which he appears to have committed. (2) Where such person is not attending the court he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid. (3) Any person attending the court although not under arrest or upon a summons, may be detained by such court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed. (4) Where the court proceeds against any person under sub-section (1) then (a) the proceedings in respect of such person shall be commenced afresh, and witnesses re-heard; (b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the court took cognizance of the offence upon which the inquiry or trial was commenced. There is great possibility that the accused appellant so summoned is in all likelihood would be convicted . Such satisfaction can only be arrived at inter alia upon completion of the cross examination of the said witnesses. Per contra learned AGA contended that the court below has not committed any error in rejecting the application . The statement of the P.W. 1 and 2 was duly considered and arrived to the conclusion that the Gyan Singh and Kishun Pal were not found involved in the said came on the basis of evidence . Per contra learned AGA contended that the court below has not committed any error in rejecting the application . The statement of the P.W. 1 and 2 was duly considered and arrived to the conclusion that the Gyan Singh and Kishun Pal were not found involved in the said came on the basis of evidence . The impugned order cannot be said to be illegal or vulnerable. Having regard to the rival submissions advanced by the learned counsel for the parties, this Court is of the view that the order passed by the trial court dated 18.11.2011 is not tenable and is hereby set aside . The revision is accordingly allowed. The court below is directed to pass fresh order in accordance with law within two months from the date of production of certified copy of this order relying upon the decision of the Apex Court in Mohd. Shafi Vs. Mohd. Rafiq and others 2007 (58) A.C.C.254 .