Heard learned counsel for the applicant, the learned A.G.A. and perused the record.
This application has been filed with a prayer to quash the order dated 20.5.2010 passed by the learned Additional Sessions Judge, Court No.9, Kanpur Dehat in S.T. No. 453 of 2009, under Sections 366, 363 and 376 I.P.C. arising out of case Crime No. 28 of 2009, P.S. Rasoolabad, district Kanpur Dehat whereby the learned Additional Sessions Judge, Court No.9, Kanpur Dehat summoned the applicant to face trial along with other accused persons. It is contended by the learned counsel that the applicant though named in the first information report but after investigation no charge sheet was submitted against him by the Investigating Officer. During the trial statement of P.W. 1 was recorded in which the complicity of the applicant was found, therefore, the court below has passed the order summoning the applicant also to face the trial. There is manifest illegality in the order passed by the court below while exercising power under Section 319 Criminal Procedure Code.
In my considered view the accused persons cannot get benefit of any such discrepancy because it is the statement before the court comes within the purview of 'evidence' as mentioned under Section 319 Cr.P.C. The Trial Court has not committed any error in taking cognizance against the applicant and other accused persons. In this regard the observations made by the Apex Court in Lok Ram Vs. Nihal Singh & another, 2006 (55) ACC P. 585( S.C.) about the scope of Section 319 Cr.P.C. is necessary to be mentioned here:-
9. On a careful reading of Section 319 of the Code as well as the aforesaid two decisions, it becomes clear that the Trial Court has undoubted jurisdiction to add any person not being the accused before it to face the trial along with other accused persons, if the Court is satisfied at any stage of the proceeding on the evidence adduced that the persons who have not been arrayed as accused should face the trial. It is further evident that such person even though had initially been named in the FIR as an accused, but not charge sheeted, can also be added to face the trial. The Trial Court can take such step to add such persons as accused only on the basis of evidence adduced before it and not on the basis of materials available in the charge-sheet or the case diary, because such materials contained in the charge- sheet or the case diary do not constitute evidence. Of course, as evident from the decision in Sohan Lal and others v. State of Rajasthan reported in AIR 1990 S.C. P. 2158, the position of an accused who has been discharged stands on a different footing.
10."Power under section 319 of the Code can be exercised by the Court suo motu or on an application by someone, including accused already before it. If it is satisfied that any person other than accused has committed an offence he is to be tried together with the accused. The power is discretionary and such discretion must be exercised judicially having regard to the facts and circumstances of the case. Undisputedly, it is an extraordinary power which is conferred on the Court and should be used very sparingly and only if compelling reasons exist for taking action against a person against whom action had not been taken earlier. The word 'evidence' in Section 319 contemplates that evidence of witnesses given in Court. Under sub-section(4)(1)(b) of the aforesaid provision, it is specifically made clear that it will be presumed that newly added person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced. That would show that by virtue of sub-section (4) (1) (b) a legal fiction is created that cognizance would be presumed to have been taken so far as newly added accused is concerned".
In view of the aforesaid legal aspect and from the perusal of judgment and order under challenge itself, I find no illegality in the order passed by the court below and the prayer to quash the order dated 20.5.2010 is refused. However, it is directed that in case the applicant moves an application for appearance/surrender before the court concerned within 30 days from today and applies for bail, the same shall be heard and disposed of expeditiously, if possible, on the same day by the courts below. Till then no coercive steps shall be taken against the applicant in the above mentioned case.
with the aforesaid direction this application is finally disposed of.
Order Date :- 15.6.2010 Shahnawaz