Court No. - 49
Case :- CRIMINAL REVISION No. - 1259 of 2018 Revisionist :- Ziyaul Haq And Another Opposite Party :- State Of U.P. And Another Counsel for Revisionist :- Nazrul Islam Jafri Counsel for Opposite Party :- G.A.,Anil Kumar Ray
Hon'ble Saumitra Dayal Singh,J.
Heard learned counsel for the applicants and learned A.G.A. for the State and Sri Anil Kumar Rai, learned counsel for the opposite party no.2.
The present revision has been filed against the impugned judgment and order dated 10.4.2018 passed by learned Additional Session Judge, Court No.12, Kanpur Nagar relating to Session Trial No. 169 of 2017 (State Vs. Raju Kharadi) arising of case crime no. 954 of 2016, under Sections 325, 452, 506 IPC, Police Station Chakeri, Kanpur Nagar.
Learned counsel for the applicants submits that while in the FIR lodged by the opposite party no.2, it had been alleged that the present applicants and one Raju Kharadi had assaulted the said opposite party no.2 and one Naved and such statements (under Section 161 Cr.P.C.) were allegedly recorded by the police during the course of investigation, two independent witnesses namely Afsar Alam and Faheem were also examined by the police who had allegedly stated that Raju Kharadi alone had assaulted opposite party no.2 and Naved. Relying on the statement of the independent witnesses, the police submitted a final report against the present applicants and charged only Raju Kharadi.
It has also been stated that Raju Kharadi has been enlarged on bail by this Court in Criminal Misc. Bail Application No. 17230 of 2017, that was allowed on 15.12.2017.
Presently, before the trial Court, statements of both injured witnesses, namely opposite party no.2 and Naved have been recorded as PW-1 and PW-2, respectively. Those statements reflect that the said injured witnesses named the present applicant in the offence as alleged. Consequently, the learned trial Court has summoned the applicants under Section 319 Cr.P.C.
Learned counsel for the applicants submits that there exists evidence of those independent witnesses in favour of the applicants and therefore, the applicants ought not to be summoned till those witnesses had been examined during the trial.
Ari Anil Kumar Rai, learned counsel for the opposite party no.2 refutes the submission so advanced by learned counsel for the applicants. He submits that in fact the said Afsar Alam and Faheem are not independent witnesses but are tenants of the present applicants.
In any case, it has been submitted that the statement of Afsar Ali and Faheem cannot be relied upon at this stage, as admittedly those statements had been recorded during police investigation, while the applicants have been named as accused during trial, in the statements of the injured witness.
Having considered the argument so advanced by learned counsel for the parties, it does appear that the statement of Afsar and Faheem were recorded during the police investigation and that at present statement of the injured witness have been recorded during trial, implicating the applicants with the offence as alleged.
So far as exercise of powers under Section 319 Cr.P.C. is concerned, the same has to be occasioned if it appears from the evidence that any person (to be summoned), though not accused, has committed any offence for which he could be tried together with the accused.
In view of the facts and circumstances of the present case, the statement of the injured witnesses clearly gives rise to a situation where it has appeared to the trial Court, on the basis of testimony of the injured witness that the applicants may be tried together with Raju Kharadi for the offence as alleged.
In view of the above, no error exists in the order summoning the present applicants.
At this state, learned counsel for the applicants submits that the non- bailable-warrant have also been issued on the applicants.
In view of the entirety of facts and circumstances of the case, it is directed that in case the applicants appear and surrender before the court below within 30 days and no more from today and apply for bail, their prayer for bail shall be considered and decided in view of the settled law laid by this Court in the case of Amrawati and another Vs. State of U.P. reported in 2004 (57) ALR 290 as well as judgement passed by Hon'ble Apex Court reported in 2009 (3) ADJ 322 (SC) Lal Kamlendra Pratap Singh Vs. State of U.P.
However, in case, the applicants do not appear before the Court below within the aforesaid period, coercive action shall be taken against them.
It is made clear that the applicants will not be granted any further time by this Court for surrendering before the Court below as directed above.
With the aforesaid directions, this application is finally disposed of. Order Date :- 26.4.2018 Mini