JUDGMENT Ravindra Singh, J.
1. Heard Sri H.N. Singh and Sri B.N. Singh learned counsels for the applicant and learned A.G.A.
2. This application has been filed against the order dated 01-02-2005 passed by learned Sessions Judge, Sonbhadra in Session Trial No. 184 of 2004, State v. Matuk Lal and Ors. under Sections 498A and 304B I.P.C. and Section 3/4 Dowry Prohibition Act, whereby the application under Section 319 Cr.P.C. filed by D.G.C. (Crl.) was allowed and the applicant Ram Awadh and co-accused Sikendar were summoned to face the trial under Sections 498A and 304B I.P.C. and Section 3/4 Dowry Prohibition Act and non-bailable warrants were issued against the applicant and co-accused.
3. The facts, in brief, of the present case are as under:-
An F.I.R. was lodged by one Kashi Ram Yadav in Case Crime No. C-2/2004 under Section 304B I.P.C. and Section 3/4 Dowry Prohibition Act on 24.7.2004 against the applicant and co-accused Matuk Lal, Ramkeshwar Yadav, Smt Kewali, Anti Lal, Smt. Chukani Devi and Sikandar. After completing the investigation the I.O. submitted the charge sheet dated 10.9.2004 in the court of the learned Magistrate only against Matuk Lal, Ramkeshwar Yadav. Smt Kewali, Anti Lal and Smt Chukani alias Lalti Devi for the offences punishable under Section 304B I.P.C. and Section 3/4 Dowry Prohibition Act, but the charge sheet against the applicant and co-accused Sikandar was not submitted. On the basis of the charge sheet submitted by the I.O. the learned Magistrate took the cognizance against the abovementioned five persons, who were charge sheeted by the I.O. and the case was committed to the Court of the Sessions. During the pendency of the trial the statement of P.W. 1 Kashi Ram and P.W. 2 Ganga Ram were recorded in the court of Learned Sessions Judge on 11.1.2005 and 17.1.2005 respectively. Thereafter, on the basis of Statements of P.W.1 Kashi Ram and P.W. 2 Ganga Ram, the learned D.G.C. (Crl.) moved an application dated 21.1.2005 under Section 319 Cr.P.C. in the court of learned Sessions Judge, Sonbhadra praying therein that on the basis of the statements of the P.W. 1 Kashi Ram and P.W.2 Ganga Ram the applicant and the co-accused Sikander have also committed the alleged offence, so they may be summoned to face the trial, together with the other co-accused. Against that application, the objection was filed by the co-accused Matuk Lal and others through his counsel. After considering the statements of the P.W.1 Kashi Ram and P.W. 2 Ganga Ram and the objection filed by the accused persons the learned Sessions Judge, Sonbhadra allowed the application dated 21.1.2005 filed under Section 319 Cr.P.C. on 1.2.2005 and summoned the applicant and co-accused Sikandar to face the trial for the offences punishable under Section 498A and 304B I.P.C. and Section 3/4 Dowry Prohibition Act and non-bailable warrants were issued against them.
4. It is contended by the learned counsel for the applicant that the applicant was also named in the F.I.R. along with other co-accuse persons, but during the investigation the I.O. came to conclusion that he was falsely implicated, so no charge sheet was submitted against him, but the charge sheet was submitted against the five accused persons and the cognizance was taken against them and their case was committed to the court of the Sessions, where the statements of P.W.1 Kashi Ram and P.W. 2 Ganga Ram were recorded. On the basis of the statements of P.W.1 Kashi Ram and P.W. 2 Ganga Ram also no offence punishable under Sections 498A and 304B I.P.C. and 3/4 Dowry Prohibition Act is made out because the applicant was having no concerned with the family of Matuk Lal, who was married with deceased Smt. Indrawati Devi, because Matuk Lal is Yadav by caste and the applicant does not belong to his caste. He is Kahar by caste. As such he is not having the blood relationship with the husband of the deceased. The applicant was falsely implicated in the present case because he was Pradhan of the village and due to ill will of the P.W. 1 Kashi Ram and P.W. 2 Ganga Ram.
5. It is further contended by the learned counsel for the applicant that even according to the provisions of the Section 319 Cr. P. C. the applicant cannot be summoned to face the trial because the crucial wordings of the Section 319 Cr. P. C. is that "any person not being the accused has 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 the applicant was accused. He was named in the F.I.R., but subsequently the charge sheet was not submitted against him by the I.O. According to the provisions of Section 319 Cr. P. C. any person not being the accused has committed any offence may be summoned to face the trial. The applicant was an accused in the above-mentioned offences, so he can not be summoned, because if the accusation is made against any person, in F.I.R. during investigation of this case, be becomes accused, during investigation also the words accused is used for him as evident from the perusal of the Section 167 & 169 Cr.P.C. If against that person charge sheet is not submitted and no cognizance is taken by the learned Magistrate, even then that person shall be called accused. So the summoning order dated 1.2.2005 passed by the learned Sessions Judge, Sonbhadra in Sessions Trial No. 184 of 2004 is illegal and is liable to be set aside.
6. The submission made by the learned counsel for the applicant is controverted by the learned A.G.A. by submitting that on the basis of the statements of P.W. 1 Kashi Ram and P.W. 2 Ganga Ram prima facie offences under Section 498A and 304B I.P.C. and Section 3/4 Dowry Prohibition Act are made out, because there is clear involvement of the applicant. There is specific allegation against the applicant that he took the active part in the commission of the murder of the deceased. The applicant was named in the F.I.R., but no charge sheet was submitted against the applicant and co-accused Sikandar by the I.O. The learned Magistrate has not taken any cognizance against the applicant, the cognizance was taken by the Magistrate only against the five accused persons, who were charge sheeted. Though the cognizance was not taken against the applicant, so the applicant cannot be said to be accused for the purpose of provisions of Section 319(1) Cr. P.C., therefore, the applicant was rightly summoned by the learned Sessions Judge to face the trial for the aforesaid offence vide order dated 01.02.2005, so the impugned order dated 1.2.2005 does not suffer from any irregularity or illegality.
7. In view of the facts and circumstances of the case and the submissions made by the learned counsel for the applicant and learned A.G.A. and from the perusal of the record it reveals that the applicant was named in the F.I.R., but he was not charge sheeted and only five persons were charge sheeted by the I.O. Thereafter, on the basis of the police report the learned Magistrate took the cognizance only against the five accused persons, who were charge sheeted and no cognizance was taken against the applicant the case of the five accused persons was committed to the court of Sessions, where the statements of P.W. 1 Kashi Ram and P.W. 2 Ganga Ram were recorded in which they have made allegations against the applicant to show his active involvement in the commission of the above-mentioned offence There is a specific allegation against the applicant to commit the murder of deceased Smt. Indrawati, he has actively participated in the commission of the murder of deceased Smt Indrawati Devi, therefore, there is sufficient material against the applicant for taking the cognizance and summoning him to face the trial in the above-mentioned offences.
8. The second submission of the learned counsel for the applicant that the provisions of Section 319 Cr. P.C. shall not be applicable in the present case on the basis of the expression that "any person not being the accused may be summoned to face the trial" because the applicant was named as accused in the F.I.R., if a person is made accused in F.I.R. during investigation but he is not charge sheeted and no cognizance is taken against him, even then he shall be called the accused. So he cannot be summoned under Section 319 Cr.P.C., is having no substance, because,
(i) if accusation is made against any person in F.I.R. or during investigation of the case i.e. pre cognizance stage that person shall be called accused during investigation, if the I.O. comes to the conclusion that the accusation was false and the final report is submitted or he is not charge sheeted, that person shall not be called accused because he was made accused only on the ground of the accusation if the accusation is not established during investigation that person does not remain an accused: on the same consideration the word accused is used under Section 167 Cr.P.C. & under Section 169 Cr.P.C. the word accused is used for a person till the investigation as if upon an investigation it appears to officer-in-charge of the Police Station that there is no sufficient evidence or reasonable ground of suspicion to justify forwarding of the accused to a Magistrate, than the word person is used
(ii) For the purposes of the Section 319 Cr.P.C., the definition of the 'accused' is that any person, who is not facing the trial. The accused is who is facing the trial.
(iii) The expression that "any person not being the accused" under Section 319 Cr. P. C. means a person against whom no process has been issued, such person shall be called 'accused' as held by Hon'ble Supreme Court in the case of Sohan Lal and Ors. v. State of Rajasthan, AIR 1990 Supreme Court 2158.
(iv) a person can be called accused in relation to a complaint case even before issue of process and in other cases when the magistrate takes cognizance against him as held by the Hon'ble Supreme Court in the case of Sohan Lal and Ors. v. State of Rajasthan, AIR 1990 SC 2158
(v) the phrase "any person not being the accused" under Section 319 Cr. P. C. does not exclude from its operation following persons:-
(a) The person released by the police under Section 169 Cr.P.C.
(b) The complainant where the court finds that there is a prima facie case against him.
(c) The person who has been released by the police as a result of his innocent disclosed during the investigation
(vi) The word "any person not being the accused" occurring under Section 319 Cr. P. C. cannot be interpreted to mean a person who has never been suspected to be an accused. "The case of Joginder Singh v. State of Punjab, reported in A.I.R. 1979 SC 399 "is an authority for the proposition that the expression "any person not being the accused" clearly covers any person who is not being tried already by the Court, in that case a criminal complaint was registered against 5 persons, including the 2 appellants The police having found that the two appellants were innocent, charge sheeted the remaining three persons and they were committed to trial. At the trial evidence having shown the appellants' involvement in the crime, the prosecution moved an application that they be tried along with the three accused and the Sessions Judge directed the appellants to stand trial together with other accused. Their revision application in the High Court was dismissed. In their appeal in this Court it was, inter alia, submitted that Section 319 Cr. P. C. was inapplicable to the facts of this case because the phrase "any person not being the accused" occurring in the section excludes from its operation an accused who had been released by the police. This Court rejected the contention holding that the said expression clearly covered any person, who has not been tried already by the Court and the very purpose of enacting such a provision like Section 319 clearly shows that even a person, who had been dropped by the police during investigation, but against him there is evidence showing his involvement in the offence before the criminal Court was included in the said expression."
9. In view of the above decision and the reasons as referred above the applicant, who is named in the F.I.R., but after investigation he was not charge sheeted and no cognizance was taken against him by the learned Magistrate on the police report, can be summoned to face the trial under Section 319 Cr.P.C., because on the basis of the statements of PW-1 and 2 recorded, it appears that he has committed the offence, for which he can be tried together with co-accused, who are facing the trial. So the impugned order dated 1.2.2005 passed by the learned Sessions Judge summoning the applicant under Section 319 Cr. P. C. to face the trial in S.T. No. 184 does not suffer from any irregularity or illegality, therefore, the prayer for quashing the impugned order dated 1.2.2005 is refused.
10. It is further contended by the learned counsel for the applicant that the non-bailable warrant has been issued against the applicant by the learned Sessions Judge on 1.2.2005 at the stage of the summoning him as an accused. During investigation it was found by the I.O. that he was falsely implicated, the applicant has no concern with the husband of the deceased and he is village Pradhan. He is law-abiding person. He wants to appear before the court concerned but due to non-bailable warrants issued against him he will not be permitted to appear in the court by the police and he will be arrested, so a suitable direction may be issued so that the applicant may be able to appear in the court and his bail application may be considered on the same day.
11. In view of the facts and circumstances of the case it is directed that in case the applicant appears before the court concerned within a period of 20 days from today and if applies for bail, the same may be considered and disposed of, in strict compliance of the directions given by the larger Bench of this Court in Criminal Misc. Application No. 2154 of 1995, Smt. Amrawati and Ors. v. State of U.P. decided on 15.10.2004. The non-bailable warrant issued against the applicant shall be kept in abeyance for 20 days only. In case the applicant does not appear in the court within the aforesaid period, the non-bailable warrant issued against him shall become executable.
12. With this observation the petition is finally disposed of.