Court No. - 34
Case :- APPLICATION U/S 482 No. - 13748 of 2004 Applicant :- Om Prakash Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Brijesh Sahai,Jai Prakash Singh Counsel for Opposite Party :- Govt. Advocate,B. Ram
Hon'ble Sudhir Agarwal,J.
1. Heard learned counsel for applicant and learned A.G.A. for State.
2. This application under Section 482 Cr.P.C. has been filed praying for quashing of order dated 30.11.2004 passed by Additional Sessions Judge (Fast Track Court-I), Ghazipur in Sessions Trial No. 246 of 1996 (State vs. Chandra Shekhar).
3. Applicant has been summoned under Section 319 Cr.P.C. by Trial Court relying on statement of PW-2, Daya Ram and Court below has passed a detailed order considering statement and entire evidence placed before it. Court below has recorded a finding that there is sufficient material against applicant under Sections 394, 302 IPC.
4. Learned counsel for applicant submitted that only on the basis of state of PW-2, aforesaid order has been passed. He placed reliance on Constitution Bench judgment in Hardeep Singh Vs. State of Punjab and others 2014 (3) SCC 92 wherein Court examined following five questions:
"(i) What is the stage at which power under Section 319 Cr.P.C. can be exercised?
(ii) 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?
(iii) 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?
(iv) 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 be convicted?
(v) 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?"
5. The aforesaid questions have been answered in para 117 of judgment as under:
“Question Nos. (i) and (iii)
A. In Dharam Pal and Ors. v. State of Haryana and Anr. 2004 (13) SCC 9, the Constitution Bench has already held that after committal, cognizance of an offence can be taken against a person not named as an accused but against whom materials are available from the papers filed by the police after completion of investigation. Such cognizance can be taken under Section 193 Cr.P.C. and the Sessions Judge need not wait till 'evidence' under Section 319 Cr.P.C. becomes available for summoning an additional accused.
Section 319 Cr.P.C., significantly, uses two expressions that have to be taken note of i.e. (1) Inquiry (2) Trial. As a trial commences after framing of charge, an inquiry can only be understood to be a pre-trial inquiry. Inquiries under Sections 200, 201, 202 Cr.P.C.; and under Section 398 Cr.P.C. are species of the inquiry contemplated by Section 319 Cr.P.C. Materials coming before the Court in course of such enquiries can be used for corroboration of the evidence recorded in the court after the trial commences, for the exercise of power under Section 319 Cr.P.C., and also to add an accused whose name has been shown in Column 2 of the charge-sheet.
In view of the above position the word 'evidence' in Section 319 Cr.P.C. has to be broadly understood and not literally i.e. as evidence brought during a trial.
Question No. (ii)
A. Considering the fact that under Section 319 Cr.P.C. a person against whom material is disclosed is only summoned to face the trial and in such an event under Section 319(4) Cr.P.C. the proceeding against such person is to commence from the stage of taking of cognizance, the Court need not wait for the evidence against the accused proposed to be summoned to be tested by cross-examination.
Question No. (iv)
A. 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. The difference in the degree of satisfaction for summoning the original accused and a subsequent accused is on account of the fact that the trial may have already commenced against the original accused and it is in the course of such trial that materials are disclosed against the newly summoned accused. Fresh summoning of an accused will result in delay of the trial therefore the degree of satisfaction for summoning the accused (original and subsequent) has to be different.
Question No. (v)
A. A person not named in the FIR or a person though named in the FIR but has not been charge-sheeted or a person who has been discharged can be summoned under Section 319 Cr.P.C. provided from the evidence it appears that such person can be tried along with the accused already facing trial. However, insofar as an accused who has been discharged is concerned the requirement of Sections 300 and 398 Cr.P.C. has to be complied with before he can be summoned afresh.”
6. The aforesaid judgment in fact lay down very clearly that power under Section 319 Cr.P.C. can be exercised by Court against a person not named in First Information Report or no charge-sheet is filed by Police against him and the accused can be summoned only on the basis of examination-in-chief of witness and need not wait for cross-examination etc. With regard to degree of satisfaction of Court for summoning the accused under Section 319 Cr.P.C, Court has said that test are same as applicable for framing charge.
7. In view of above, Court below, was well within its power to summon accused applicant under Section 319 Cr.P.C. on being prima facie satisfied about involvement of applicant in commission of offence, on the material brought before it and, therefore, impugned summoning order cannot be faulted. I, therefore, find no reason to interfere.
8. Dismissed.
9. Interim order, if any, stands vacated.
Order Date :- 30.09.2019 AK