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2015 DIGILAW 2403 (ALL)

AWNENDRA TOMAR v. STATE OF U. P.

2015-08-14

RAMESH SINHA

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JUDGMENT Hon’ble Ramesh Sinha, J.—Heard Sri Shrawan Kumar Dubey, learned counsel for the revisionist and Sri Sanjay Tripathi, learned A.G.A. on behalf of the State. 2. This revision has been filed for setting aside the summoning order dated 8.6.2015 passed by Additional Sessions Judge, Court No. 3, Firozabad in Session Trial No. 30 of 2006 (State v. Sripati and others), under Section 328, 302, 256, 257, 258, 259, 420, 467, 468 IPC and 60/64 of Excise Act, P.S. Nagla Khangar, district Firozabad as per provision of Section 319 Cr.P.C. against the revisionist. 3. The prosecution story as alleged in the First Information Report is that on 30.5.2006 the informant received an information in the morning that in village Nagla Dhuli, P.S. Nagla Khangar, District Firozabad there was a marriage of daughter of one Ram Khiladi on 28.5.2006 in which the in-laws of Ram Khiladi i.e. his father-in-law Ram Kishan and sons of Ram Kishan namely Virendra and Shiv Pal and nephew Manoj who were resident of village Tulhati, P.S. Kotwali, District Etah had come for performing some ceremony in the marriage. They had purchased some liquor from the shop of one Sripati son of Ram Kishan and Reshma, wife of Sripati situated in village Nagla Khangar. After consuming the said liquor which was purchased by them alongwith some other persons of the village, they fell ill and their condition deteriorated. While they were being medically treated and the persons who have consumed the liquor, some of them have also died out of which one Barrister son of Janak Singh resident of Maharaj ki Madahiya, Nagla Khangar, Firozabad died. On receiving the complete information it was found that Smt. Sanju was the licensee of the said liquor shop whose husband namely Avanendra Tomar used to prepare/manufacture the illegal and spurious liquors and used to sell it through Sripati and his wife Reshma. On the search/raid made at the shop of Sripati and his wife Reshma, liquor of Badshah brand was recovered and during the search some fake hologram was found on pouch of two quarters. The said spurious liquors were being sold by Avanendra Tomar through his salesman Rajesh Singh Tomar from his shop at village Nagla Khangar, Firozabad. 4. On the search/raid made at the shop of Sripati and his wife Reshma, liquor of Badshah brand was recovered and during the search some fake hologram was found on pouch of two quarters. The said spurious liquors were being sold by Avanendra Tomar through his salesman Rajesh Singh Tomar from his shop at village Nagla Khangar, Firozabad. 4. The said First Information Report was lodged against the revisionist alongwith three other accused persons namely Sripati, Smt. Reshma and Rajesh Singh Tomar on 30.5.2006 at police station Nagla Khangar, District Firozabad. The charge-sheet was submitted against three accused persons namely Sripati, Smt. Reshma and Rajesh Singh Tomar and the revisionist was exhonerated during the course of investigation by the Investigating Officer. The charges were framed against co-accused persons by the trial Court for the offence in question and during the course of trial the evidence of P.W.-1 Shankar Kumar, P.W.-2 Kamlakar, P.W.-3 Lekhraj, P.W.-4 Dharmendra Singh, P.W.-5 Guddi, P.W.-6 Lajjawati, P.W.-8 Ketki Devi who have stated that the liquor in question was brought from the shop of country made liquor of the revisionist from village Khangar and on the basis of said evidence the trial Court has summoned the revisionist under Section 319 Cr.P.C. vide order dated 8.6.2015 against which the present revision has been filed. 5. It has been argued by the learned counsel for the revisionist that though the First Information Report lodged by opposite party No. 2 against the revisionist alongwith three other accused persons but no charge-sheet was submitted against him, but during the course of the trial though evidence has come up against the applicant in the statement of prosecution witnesses but an application under Section 319 Cr.P.C. has been moved by a co-accused Smt. Reshma Devi wife of Shripati who is also facing trial and the said application has been allowed by the trial Court and the applicant has been summoned. He submitted that the summoning of the applicant on the basis of application moved by the co-accused is wholly bad in the eyes of law and be set aside. 6. He submitted that the summoning of the applicant on the basis of application moved by the co-accused is wholly bad in the eyes of law and be set aside. 6. The learned A.G.A. on the other hand has vehemently opposed the quashing of the impugned order and submitted that as per the provisions contained under Section 319 Cr.P.C. the Court can suo-moto or on the application of the informant or even of the accused can summon an accused to face trial alongwith other accused, if there appears to be evidence against him which shows also his participation in the crime alongwith other accused, hence the order passed by the trial Court summoning the revisionist does not suffers from any illegality and he in support of his arguments has placed reliance on the judgment of Bholu Ram v. State of Punjab and another, (2008) 9 SCC 140 . 7. Considered the submissions advanced by learned counsel for the parties and perused the record. 8. The contention of learned counsel for the revisionist is that the revisionist cannot be summoned on an application made by accused under Section 319 Cr.P.C. has no substance as from the bare reading of Section 319 Cr.P.C. it is apparent that Section 319 Cr.P.C. empowers a Court to proceed against any person not shown to be an accused, if it appears from an “evidence” that such person also committed an offence for which he can be tried together with an accused. 9. Sometimes trial Court while hearing a case against one or more accused finds from the evidence that some person other than the accused before him were involved in that very offence. It is only proper that a trial Court should have power to summon by joining such person as an accused in the case. The primary object under Section 319 Cr.P.C. is that the whole case against all the accused should be tried and dispose of not only expeditiously but also simultaneously. 10. Justice and convenience both require that cognizance against the newly added accused should be taken in the same case and in the same manner as against the original accused. The power must be regarded and conceded as incidentally and ancillary to the main power to take cognizance as part of normal process in the administration of criminal justice. 10. Justice and convenience both require that cognizance against the newly added accused should be taken in the same case and in the same manner as against the original accused. The power must be regarded and conceded as incidentally and ancillary to the main power to take cognizance as part of normal process in the administration of criminal justice. It is a settled law that power under Section 319 Cr.P.C. can be exercised either on an application made to the Court or by the Court suo-moto. It is in the discretion of the Court to take an action under the said section and the Court is expected to exercise the jurisdiction judicialy and judiciously having regard to the facts and circumstances of the case of each case. 11. In the instant case, the revisionist’s participation has also come into light during the evidence recorded of the prosecution witnesses namely Shankar Kumar P.W.-1, Kamlakar P.W.-2, Lekhraj P.W.-3, Dharmendra Singh P.W.-4, Guddi P.W.-5, Lajjawati P.W.-6, Ketki Devi P.W.-8 who have categorically stated before the trial Court that the liquor was brought from the shop of country made liquor of the revisionist, village Khangar and the deceased died after consuming the same, hence to say that the said application under Section 319 Cr.P.C. ought to have been moved by the prosecution and not by the accused Smt. Reshma Devi appears to be not tenable as the trial Court was well within its jurisdiction to allow the said application even of the accused finding evidence against the revisionist for being tried together with the other accused for the offence in question in view of Section 319 Cr.P.C., hence, the impugned order passed by the trial Court does not suffers from any illegality. 12. In the present case the First Information Report was lodged by Shankar Kumar, the Excise Inspector who has also been examined as P.W.-1 by the trial Court but it is very disturbing that the application under Section 319 Cr.P.C. should have been moved by the prosecution through him, but not having done so, the Court has rightly summoned the revisionist for trial on the basis of the evidence of the prosecution witnesses who supported the prosecution case. 13. 13. Taking into account the proposition of law as has been laid down by the Apex Court in the case of Bholu Ram v. State of Punjab and another (supra), the case the summoning of the revisionist is also just, proper and legal. 14. The revision lacks merit and is accordingly dismissed.