This is revision against the order dated 20.03.2010 passed by Additional District Judge/F.T.C.-3, Jalaun at Orai. On the application under Section 319 CrPC by the prosecuting officer of the case for summoning Gulab Singh for his trial along with other accused persons Razzan Singh.
Although Gulab Singh has been made party in the revision but as he was not summoned by the trial court so he was not necessary party in the revision. No notice is required in the matter to him in the facts and circumstances of the case.
Heard learned counsel for the revisionist and learned AGA for the State and perused the record.
Record shows that on the application under Section 156 sub- clause (3) CrPC under the order of learned Magistrate, a report was lodged at the police station concerned against three accused Gulab Singh, Bajjau and Mantu Singh for the offences under Section 323 and 504 IPC and 3(1)(10) of SC/ST Act and this application was moved by Bharat Kumar-revisionist. After completing the investigation, charge- 2 sheet was submitted against two accused only i.e. Razzan Singh and Mantu Singh and Gulab Singh was exonerated. As charge-sheet for offence under Section 3(1)(10) SC/ST Act also filed so the trial of the accused persons was started before the Additional Session Judge/FTC Court No. 3, Jalaun who was authorized by the government to dispose of the cases under Section 3 of the Act. It is also clear from the record that earlier also an application for summoning Gulab Singh under Section 319 CrPC was moved after recording the statement of two witnesses but that was rejected by the trial court. Statement of another witness Thakur Prasad was also recorded and he has stated the active role of the Gulab Singh in the occurrence. Again present application was moved for summoning Gulab Singh for his trial along with other accused but again this application was rejected by the trial court.
Learned counsel for the revisionist argued that under the provisions of Section 319 CrPC, it is provided where in the course of any inquiry or trial of an offence, it appears from the evidence that any person not being the accused as 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. In the present case, learned counsel for the revisionist states that name of accused Gulab Singh is there in the FIR and active role was assigned to him also in the offence committed. It may be correct that in their statement under Section 161 CrPC witnesses might have not named him as an assailant but statement of witnesses under Section 161 CrPC cannot be made basis for conviction and acquittal of 3 the accused. When those two witnesses were examined in the court on oath, they both have supported the case of FIR and stated the active role of Gulab Singh in the occurrence and it was also said by them that he had also given below of "Lathi" on the body of the victim and inflicted injuries to the victim. Learned counsel for the revisionist further argued that there was sufficient evidence on record to see the trial court whether Gulab Singh was involved in the offence of "Marpeet" or not. At this stage only prima-facie case was to be seen. It was not expected by the court at this stage to scrutinize the evidence of the witnesses to see whether it is sufficient for conviction of the accused or not. Only prima-facie case was to be seen. But without any sufficient cause and jurisdiction vested in the trial court with detailed discussion of the evidence of the two witnesses and case of the prosecution, application of the prosecuting officer was rejected. Such detail order expressing his opinion on the merit of the case was not required in the matter.
I am in full agreement with the learned counsel for the revisionist that impugned order passed by the trial court is not in accordance with the evidence available on the record and require reconsideration in the matter by the trial court order also cannot be held proper.
In the facts and circumstances of the case and considering the argument of the learned counsel for the parties, it is a fit case to remand the matter to the trial court for re-consideration of the application moved by prosecuting under Section 319 CrPC. Learned counsel for the revisionist pressed that as impugned order shows that 4 trial court has also expressed his opinion in the matter if court deems fit, the case may be transfer to some other court having jurisdiction to trial the case.
Revision is hereby allowed. Impugned order passed by the trial court is hereby set aside and matter is remitted back to the trial court for afresh decision on the application. It is made clear that this court is not expressed its opinion on merit for disposal of the application under Section 319 CrPC. Learned trial court shall be free to take its own view in disposal of application according to law. Learned Session Judge of the district concerned will see that if any other officer is also available in the district to conduct such cases, it will be proper to transfer this case to that court in the facts and circumstances of the case. Order Date :- 2.4.2010 Rakesh