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2014 DIGILAW 568 (ALL)

Parvinder Kumar @ Pinky v. State of U. P.

2014-02-17

VIRENDRA VIKRAM SINGH

body2014
JUDGMENT Virendra Vikram Singh,J.: - Heard learned counsel for the applicant and learned AGA for the State. 2. Brief facts given rise to the present application is that on 28.4.2008, one Jitendra Singh, lodged a report nominating the applicant and co-accused Kavindra with the facts in brief that they both in the marriage party with intent to kill made fires on Virendra and Subhash. Virendra succumbed to the injuries so received. During investigation, the local police arrived at the conclusion that the offence under Sections 304, 307 I.P.C. is made out against the accused Kavindra, however, it did not found any evidence against the applicant. After submission of chargesheet against the co-accused Kavindra, case against him was committed to the Court of sessions wherein S.T. No.1135 of 2008, charge was framed against the co-accused on 15.1.2010 and the trial proceeded in which the witnesses of fact have been examined. 3. The grudge of the applicant is that while the case was being tried by the Court of sessions that the investigation was taken up by CBCID, who on 5.1.2014 moved application against the applicant that he is not available despite issuance of non-bailable warrant against him and prayed for issuance of process under Section 82 Cr.P.C. This application by the impugned order has been allowed giving rise to the present application. 4. It has been argued that while the case in question was taken cognizance by the Court of sessions, it was the jurisdiction of the sessions court alone to have summoned any other accused in exercise of powers under Section 319 Cr.P.C. No other court than the court of sessions could take cognizance of the offence, hence, the order in question is bad in law and is liable to be quashed. 5. It cannot be disputed that the court of sessions in exercise of its powers under Section 319 Cr.P.C. is empowered to summon any other accused, who could be tried alongwith the other accused facing trial. The provision of Section 319 Cr.P.C. is an enabling provision which provides powers to take cognizance by the Court of sessions and these powers are infact exception to the provision of Section 193 Cr.P.C. which provides a bar for the court of sessions to take cognizance of the offence. But for the provision of Section 319 Cr.P.C. cognizance of any offence could have been taken by the concerned magistrate only. But for the provision of Section 319 Cr.P.C. cognizance of any offence could have been taken by the concerned magistrate only. The magistrate on the application of the investigation officer of CBCID having been satisfied that the applicant is not traceable, has issued non-bailable warrant and process under Section 82 Cr.P.C. against the applicant and thus, he has not committed any illegality and in no case, the same can be said to be an abuse of the process of the court. 6. The application lacks merit and hereby rejected.