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2017 DIGILAW 2563 (ALL)

RAMVEER v. STATE OF U. P.

2017-11-07

VIJAY LAKSHMI

body2017
JUDGMENT : Vijay Lakshmi, J. 1. The applicant, by means of this application under Section 482 Cr.P.C., has invoked the inherent jurisdiction of this Court with prayer to quash the order dated 19.9.2017 passed by learned Additional Sessions Judge, Court No. 01, Bulandshahar in S.T. No. 50 of 2015 arising out of Case Crime No. 207 of 2014 under Sections 452, 323 and 308 I.P.C., Police Station Aurangabad, district Bulandshahr whereby the learned court below while allowing the application under Section 319 Cr.P.C. has summoned the revisionist to face trial. 2. Heard learned counsel for the applicant and learned A.G.A. Perused the record. 3. The contention of learned counsel for the applicant is that the applicant had left the village, where the occurrence has taken place, 15 years ago which fact has been supported by the affidavits given by the villagers to the investigating officer during investigation. That is why charge-sheet was not submitted against him. It is further contended that there is no reliable evidence against the applicant and chances of his conviction are remote. On the aforesaid grounds it has been prayed that as the summoning of the applicant under section 319 Cr.P.C. is bad in law and the same may be quashed. 4. Per contra learned AGA has opposed the prayer of the applicant by submitting that after the decision, rendered by Constitution Bench of Hon'ble Apex Court in Hardeep Singh's case, the law regarding summoning under Section 319 Cr.P.C. has been well settled. The application is without any force and is liable to be dismissed. 5. Having heard learned counsel for the applicant and learned A.G.A. and keeping in view the facts and circumstances of the case, this Court is of the considered view that the instant application is liable to be dismissed for the following reasons :- 6. A Five Judges bench of Hon'ble Supreme Court in the case of Hardeep Singh vs. State of Punjab and others [2014 (1) JIC 539 (SC)] has set at rest the entire controversy with regard to the scope and extent of Section 319 Cr.P.C. which had arisen due to variety of views having been expressed by several High Courts and also by the Supreme Court. 7. 7. Noticing the conflicting views between the two judgements of the Hon'ble Supreme Court in the case of Rakesh vs. State of Haryana, 2001 (2) JIC 757 (SC) : AIR 2001 SC 2521 ; and Mohd. Shafi vs. Mohd. Rafiq & another, 2007 (2) JIC 490 (SC), a doubt was expressed about the correctness of Mohd. Shafi vs. Mohd. Rafiq & another, 2007 (2) JIC 490 (SC) which led to the framing of following five questions by Constitutional Bench in Hardeep Singh case:- 1. What is the stage at which power under Section 319 Cr.P.C. can be exercised? 2. Whether the word "evidence" used in Section 319 (1) Cr.P.C. could only mean evidence tested by cross-examination or the Court can exercise the power under the said provision even on the basis of the statement made in the examination-in-chief of the witness concerned? 3. Whether the word "evidence" used in Section 319 (1) Cr.P.C. has been used in a comprehensive sense and includes the evidence collected during investigation or the word "evidence" is limited to the evidence recorded during trial? 4. What is the nature of the satisfaction required to invoke the power under Section 319 Cr.P.C. to arraign an accused? Whether the power under Section 319 (1) Cr.P.C. can be exercised only if the Court is satisfied that the accused summoned will in all likelihood convicted? 5. Does the power under Section 319 Cr.P.C. extend to persons not named in the FIR or named in the FIR but not charged or who have been discharged? 8. Answering the aforesaid questions, the Hon'ble Constitutional Bench of Supreme Court expressed its clear view that neither cross-examination of witness is required before summoning an additional accused under section 319 Cr.P.C., nor any categorical finding to the affect that in all likelihood the person summoned may be convicted, is necessary before exercising such power. According to Hon'ble Apex Court:- "What is required is not to have a mini-trial at this stage by having examination and cross-examination and thereafter rendering a decision on the overt act of such person sought to be added. According to Hon'ble Apex Court:- "What is required is not to have a mini-trial at this stage by having examination and cross-examination and thereafter rendering a decision on the overt act of such person sought to be added. In fact it is this mini-trial that would affect the right of the person sought to be arraigned as an accused rather than not having any cross-examination at all, for in light of sub section (4) of Section 319 Cr.P.C., the person would be entitled to a fresh trial where he would have all the rights including the right to cross-examine prosecution witnesses. Therefore, even on the basis of Examination-in-chief, the court can proceed against a person as long as the court is satisfied that the evidence appearing against such person prima facie necessitates bringing such person to face trial. In fact, Examination-in-Chief untested by cross-examination, undoubtedly in itself, is an evidence. 9. In view of the above, we hold that power under Section 319 Cr.P.C. can be exercised at the stage of completion of examination-in-chief and Court does not need to wait till the said evidence is tested on cross-examination.......There is no scope for the Court acting under Section 319 Cr.P.C. to form any opinion as to the guilt of the accused........... 10. Though under Section 319 (4) (b) Cr.P.C. the accused subsequently impleaded is to be treated as if he had been an accused when the Court initially took cognizance of the offence, the degree of satisfaction that will be required for summoning a person under Section 319 Cr.P.C. would be the same as for framing a charge." 11. In wake of the above cited legal position, there appears no substance in the arguments advanced by learned counsel for the applicant that the revisionist has been wrongly summoned without any likelihood of his conviction. 12. The application is without any force hence the prayer for quashing the impugned order is refused. 13. The application is accordingly dismissed. 14. At this juncture learned counsel for the applicant prayed that the applicant is ready to surrender before the court and to move bail application and the court below be directed to consider his bail application expeditiously in accordance with the law as laid down by this Court in the Full Bench decision of Amrawati and another Vs. 14. At this juncture learned counsel for the applicant prayed that the applicant is ready to surrender before the court and to move bail application and the court below be directed to consider his bail application expeditiously in accordance with the law as laid down by this Court in the Full Bench decision of Amrawati and another Vs. State of U.P. 2004 (57) ALR 290 affirmed by Hon'ble Supreme Court in the case of Lal Kamlendra Pratap Singh Vs. State of U.P. 2009 (3) ADJ 322 (SC). 15. Learned AGA has no objection against the aforesaid prayer. 16. As the law laid down in both the aforesaid cases, should be complied with in letter and spirit, by all courts, it is expected from the trial court that in case the applicant surrenders before it within 30 days from today and applies for bail it will decide his bail application in wake of the law laid down by this Court in the Full Bench decision of Amrawati and another Vs. State of U.P. 2004 (57) ALR 290 and affirmed by Hon'ble Supreme Court in the case of Lal Kamlendra Pratap Singh Vs. State of U.P. 2009 (3) ADJ 322 (SC). 17. It is provided that if the applicant moves an application for discharge during trial at the appropriate stage, the court below is directed to decide it expeditiously in accordance with law. 18. For the aforesaid period of 30 days only, which shall not be extended any further, no coercive action shall be taken against the applicant in the aforesaid case. In case of default the court below will be at liberty to take coercive measures against the applicant.