Court No. - 66
Case :- APPLICATION U/S 482 No. - 29145 of 2019 Applicant :- Abid And Another Opposite Party :- State Of U.P. And Another Counsel for Applicant :- A.C.Srivastava,Ravitendra Pratap Singh Chandel Counsel for Opposite Party :- G.A.
Hon'ble Rajul Bhargava,J.
Heard Sri A.C.Srivastava, learned counsel for the applicants, Sri J.S. Malviya,learned counsel for informant/opposite party no.2 as well as the learned A.G.A. and perused the material placed on record.
The applicants by way of filing the present application have sought to quash the impugned order dated 4.06.2019 passed by Additional District and Sessions Judge, Court No.5, Moradabad in S.T. No.139 of 2018 (State of U.P. Vs. Rashid and others) arising out of Case Crime No. 611 of 2017 under Sections 147, 148 and 302 I.P.C., Police Station Thakurdwara, District Moradabad upto the extent it relates to the applicants.
Learned counsel for the applicants has assailed the impugned order dated 4.06.2019 whereby the trial court has summoned the applicants to face trial under Sections 147, 148 and 302 I.P.C. in exercise of power under Section 319 Cr.P.C. Submission of learned counsel for the applicants is that court below has completely ignored the material collected during investigation especially statements of the witnesses in which they have stated that the applicants have not taken part in the incident and some of those witnesses who have not stated about the presence of the applicant, now have stated in trial that the applicants have also taken part in commission of murder. Therefore, in view of law laid down by Apex Court in Brijendra Singh & Ors. Versus State of Rajasthan, AIR 2017 Supreme Court 2839 it was incumbent on the part of the judge exercising power under Section 319 Cr.P.C. to consider the material collected during investigation and if the trial judge had gone into material he certainly would have restrained himself in exercise of power under Section 319 Cr.P.C. and have not summoned the applicants. Therefore, the impugned order dated 4.06.2019 passed by District and Sessions Judge, Court No.5, District Moradabad may be quashed.
Learned counsel for the informant as well as learned A.G.A. have submitted that judgement referred to by learned counsel for the applicants has been decided on its own facts and they have placed reliance on the judgement rendered in Hardeep Singh Vs. State of Punjab and others (2014) 3 SCC 92 wherein Constitution Bench has interpreted and held all that is required by the Court for invoking its powers under Section 319 Cr.P.C. is to be satisfied that from the evidence adduced before it, the person against whom no charge-sheet has been filed, but whose complicity appears to be established more than prima facie, i.e. from the evidence recorded against other charge- sheeted accused, should be tried together with the accused I have considered the submission made by learned counsel for the revisionists and the provisions of Section 319 Cr.P.C. and have arrived at a conclusion that no interference is called for in the impugned order.
In the light of aforesaid, the instant application is dismissed.
Order Date :- 30.7.2019 MN/-