1. By way of this application under Section 482 Cr.P.C., [email protected] Indu Bala Nishad, approached this Court for quashing the impugned order dated 9.06.211 passed by Additional Sessions Judge, Ambedkar Nagar in Session Trial No. 58 of 2002 (State v. Rajendra) in Case Crime No. 28 of 2008, under Sections 147, 148, 324, 325, 323, 307 504 and 201 IPC, Police Station Bheeti, District Ambedkar Nagar, whereby, he summoned accused-applicant herein to face the trial on the application of prosecution under Section 319 Cr.P.C.
2. Facts leading to present application in nut-shell are as under : Informant, Vishwa Nath Nishad lodged FIR bearing Crime No. 28 of 2009, under Sections 147, 148, 324, 325, 323, 307 504 and 201 IPC, against six persons including present applicant stating that on 25.01.2009 at about 10:00 am, accused persons-Rajendra, Ramakant, Koyla, Neelam Ramrati and Nidra (present applicant) started abusing and beating his father with their respective weapons. When he, Kanahiya, Ravi Shankar, Rampher, Kaushalya, Sanmati and his mother rushed to rescue him, all the accused persons started beating them, due to which, they received injuries. Incident was witnessed by many persons. Accused Rajendra assaulted his father, Rampher, with Ganasha with intention to kill death. Case came to be investigated by the Investigating Officer and submitted charge-sheet against the accused persons except present applicant.
3. During trial PW-1 Vishwanath Nishad and PW-2, Ravi Shanker were examined by the prosecution and both the witness supported the prosecution case and deposed about the complicity of the present applicant. After considering the statement of PW-1 and 2, Trial Court passed the impugned order in exercising power conferred under Section 319 Cr.P.C. and summoned the applicant herein to face the trial.
4. I have heard Sri Vinod Kumar Pandey, learned counsel for applicant, learned AGA for State and perused the record available on file.
5. Learned counsel for accused-applicant submitted that accused-applicant has been summoned in the case without evidence for the purpose of harassment and humiliation. No case is made out against her. After completing investigation, Investigating Officer did not find any case against the applicant and not submitted charge-sheet against her. During investigation, witness-Ravi Shankar Nishad has stated before Investigating Officer that Nidra (present applicant) had gone to take gross for cattle in her field with Smt. Dakhinwa in his village on 25.01.1989, meaning thereby, she was not present on the spot at the time of incident and witness-Dakhinwa also supported the same version in her statement before Investigating Officer. Relying upon the statement of Ravi Shanker Nishad and Smt. Dakhinwa, Investigating Officer did not find any evidence against the applicant herein and did not submit charge-sheet against her.
6. It is further submitted that prosecution did not produce complete witness of fact and learned Trial Court passed impugned order of summoning the applicant herein without application of mind.
7. Relining upon the judgment of Raja Ram alias Raj Kumar and Others v. State of U.P. and Another, 2019 (2) JIC 139, All, Criminal Revision No. 142 of 2019, decided on 11.03.2019, he submitted that application under Section 482 Cr.P.C. be allowed and impugned order 09.06.2011 summoning the applicant herein be quashed.
8. Learned AGA for the State opposed the submission made by learned counsel for applicant and submitted that applicant herein is named in FIR. Investigating Officer of the case did not submit charge-sheet against her. Considering the statement of PW-1 and 2 before the Trial Court, learned Trial Court rightly summoned the present applicant to face the trial with other co-accused in exercise of power under Section 319 Cr.P.C. and applicant under Section 482 is liable to be dismissed.
9. In case of Raja Ram alias Raj Kumar (supra), revisionist-Raja Ram alias Raj Kumar, at the time of incident was not present on the spot and he was present in hospital at Aligarh in connection with medical treatment of his daughter-in-law. CCTV footage also supported this fact. On relying CCTV footage, this Court allowed the revision and impugned order was set aside on this ground but in the present case, due to fact being totally different, applicant is not entitled to get the benefit of case law cited by him.
10. Section 319 CrPC allows the court to proceed against any person who is not an accused in a case before it. Thus, the person against whom summons are issued in exercise of such powers, has to necessarily not be an accused already facing trial. He can either be a person named in Column 2 of the charge-sheet filed under Section 173 CrPC or a person whose name has been disclosed in any material before the court that is to be considered for the purpose of trying the offence, but not investigated. He has to be a person whose complicity may be indicated and connected with the commission of the offence.
11. The legislature cannot be presumed to have imagined all the circumstances and, therefore, it is the duty of the court to give full effect to the words used by the legislature so as to encompass any situation which the court may have to tackle while proceeding to try an offence and not allow a person who deserves to be tried to go scot-free by being not arraigned in the trial in spite of the possibility of his complicity which can be gathered from the documents presented by the prosecution.
12. The court is the sole repository of justice and a duty is cast upon it to uphold the rule of law and, therefore, it will be inappropriate to deny the existence of such powers with the courts in our criminal justice system where it is not uncommon that the real accused, at times, get away by manipulating the investigating and/or the prosecuting agency. The desire to avoid trial is so strong that an accused makes efforts at times to get himself absolved even at the stage of investigation or inquiry even though he may be connected with the commission of the offence.
13. In my opinion, Section 319 CrPC is an enabling provision empowering the court to take appropriate steps for proceeding against any person not being an accused for also having committed the offence under trial."
14. In Ranjit Singh v. State of Punjab, (1998) 7 SCC 149, this Court held that:
"20. ... it is not necessary for the court to wait until the entire evidence is collected for exercising the said powers."
15. In Mohd Shafi v. Mohd Rafiq, (2007) 14 SCC 544, it was held that the prerequisite for exercise of power under Section 319 CrPC is the satisfaction of the court to proceed against a person who is not an accused but against whom evidence occurs, for which the court can even wait till the cross-examination is over and that there would be no illegality in doing so. A similar view has been taken by a two Judge Bench in Harbhajan Singh, (2009) 13 SCC 608.
16. In S. Mohammed Ispahani v. Yogendra Chandak, (2017)16 SCC 226, in para 35, Court has observed and held as under:
"35. It needs to be highlighted that when a person is named in the FIR by the complainant, but police, after investigation, finds no role of that particular person and files the charge-sheet without implicating him, the Court is not powerless, and at the stage of summoning, if the trial court finds that a particular person should be summoned as accused, even though not named in the charge-sheet, it can do so.
17. In Rajesh and Others v. State of Haryana, Criminal Appeal No. 813 of 2019 decided on 01.05.2019, Court held that :
"We have given our thoughtful consideration to the diverse views expressed in the aforementioned cases. Once examination-in-chief is conducted, the statement becomes part of the record. It is evidence as per law and in the true sense, for at best, it may be rebuttable. An evidence being rebutted or controverted becomes a matter of consideration, relevance and belief, which is the stage of judgment by the court. Yet it is evidence and it is material on the basis whereof the court can come to a prima facie opinion as to complicity of some other person who may be connected with the offence. "
18. In view of the above facts and circumstances of case and for the reasons stated above, I see no reason to interfere with impugned order passed by the Trial Court. No interference is called for by this Court. The present application fails and deserves to be dismissed and is, according, dismissed.
Order Date :-28.8.2019 Akram