Gyanendra Singh Vs State of U.P. and Others

@JUDGMENTTAG-ORDER

K.N. Sinha, J.@mdashThe present revision has been filed against the order dated 26.7.2004 passed by Additional Sessions Judge Court No. 3 Fatehpur in Sessions Trial No. 802/ 2001. State v Rakesh Singh and Ors..

2. The brief facts, giving rise to the present revision, are that revisionist Gyanendra Singh lodged the report (Annexure 2) against Rakesh Singh, Kalika Singh Raj Karan Singh and Ram Singh who reached the place of occurrence with the fire arm and injured Shyam Singh and Ram Singh. The case was investigated and Investigating Officer submitted chargesheet only against two accused leaving Kalika Singh and Raj Karan Singh. The case was committed to the court of Session and during the course of trial two witnesses namely Gyanendra Singh Complainant was examined as PW1 and Shyam Singh was examined as PW2 After their examination the prosecution moved an application for summoning Kalika Singh and Raj Karan Singh as accused to stand trial together with the accused already facing trial requesting the court to invoke the provisions of Section 319 Cr.P.C. The trial court dismissed the said application by the impugned order.

3. Being aggrieved this revision has been filed by the appellant.

4. I have heard learned counsel for the complainant revisionist learned AGA and perused the record of the case. The revisionist had filed copy of the FIR injury reports of Shyam Singh and Ram Singh and statement of Shyam Singh and Gyanendra Singh . The injury report of Shyam Singh shows about eight fire arm injuries and one abrasion. Similarly the injury report of Ram Singh shows about seven fire arm injuries. The statement of Gyanendra Singh shows that all the accused including Kalika Singh and Raj Karan Singh had appeared at the scene of occurrence with guns and all the four accused fired on Shyam Singh and Ram Singh. Similar statement has been given by Shyam Singh PW2. The statements of complainant and injured coupled with the injury report make out a prima facie case. However, the trial judge entertained the objection filed by co-accused facing trial, and by misinterpreting the law and fact dismissed the application. The co-accused has no locus standi to contest the said application. The application for invoking Section 319 Cr.P.C. was moved by the prosecution and it was for the court to assess the evidence and come to conclusion. The court has considered the defence (alibi) of one of the accused Raj Karan Singh who was a police constable. The case against the other person Kalika Singh was rejected as there was no direct: evidence nor any fire arm was recovered. It is highly surprising as to how the trial court has assessed this type of evidence. The trial court has observed that there is no proper evidence at this stage to summon Kalika Singh and Raj Karan Singh u/s 319 Cr.P.C. As has been discussed above, in the statement of complainant and one injured they have stated that Kalika Singh and Raj Karan Singh also fired by firearm. The injury reports show number of injuries on the body of two injured and what could be more than this as the proper evidence or direct evidence.

5. The trial judge has relied upon judgments of apex Court Smt. Rukhasana Khatoon v. Sakhawat Hussain 2002 (44) ACC 411 : (2002 ALJ 1516) quoted out few lines from the head note and never cared to read the law laid down and apply the same. The trial Judge again relied upon Ram Gopal and Another Vs. State of U.P., (in the order wrongly typed as 193) and left it by simply quoting few lines from the head note. Both the judgment quoted above show that the trial court was fully empowered to summon the accused after invoking the provisions of Section 319 Cr.P.C. In cases where accused has been named in the FIR but during investigation no charge sheet was filed against him, Such person can be summoned u/s 319 Cr.P.C. by the court if sufficient evidence existed against him. The trial judge no doubt cited the said authority but hardly read or cared for applying the law laid down therein. The court had to consider the evidence adduced before it and not the defence of the person who has yet not appeared before the court.

6. The trial court further relied upon a judgment of the single judge of this court Pradeep Kumar v. State of U.P. 2001 CriLJ 1873, in which the judgment of the apex court reported in 2000 CriLJ 795 : ( Michael Machado and Another Vs. Central Bureau of Investigation and Another, ) was relied upon. This judgment of this court was not a correct law in view of the pronouncement of the apex court in various judgments. The judgment of Pradeep Kumar (supra) lays down that a person who was earlier named as an accused in the First Information Report but not charge sheeted the provision of Section 319 Cr.P.C. can not be invoked. This authority was cited before Hon. J.C. Gupta, J. in case of Manoj Kumar v. State of U.P. 2001 (43) ACC 292 : (2001 ALJ 1959) wherein the law laid down in Pradeep Kumar''s case was not agreed to by Hon. J.C. Gupta J and it was referred to a larger bench. The apex court in the case of Smt Rukhsana Khatoon (Supra) has already held, which is against the judgment of Pradeep Kumar''s case.

7. The trial judge did not apply the law of the apex court though cited at page 3 of his judgment and the Division Bench of this Court and took the shelter of judgment of Pradeep Kumar''s case to dismiss the application. The revision is therefore allowed. The order dated 26.7.2004 is set aside. The interim order dated 19.8.2004 is vacated. The matter is remanded back for reconsidering the matter afresh in the light of law laid down by the apex court and properly appreciate the prosecution evidence in the light of observations made in the body of the judgment and pass fresh order.

8. The Registry of this Court shall send a copy of this judgment to the District & Sessions Judge, Fatehpur within a week, for future guidance to the officer concerned and to direct him to properly appreciate the law laid down by the superior courts and follow the principles of law in true letter and spirit.