Ashok Singh vs State of U.P.

Ravindra Singh, J.—Heard Sri O.P. Singh, senior advocate, assisted by Sri Vijai Tripathi, learned Counsel for the applicant and learned A.G.A. for the State of U.P.

This application has been filed by the applicant Ashok Singh, with a prayer to quash the order dated 5.11.2005 passed by the learned Additional Fast Track Court 5 Kanpur Nagar in S.T. No. 367 of 2005, whereby the application u/s 319, Cr. P.C. has been rejected and the order dated 5.7.2007 passed by the Fast Track Court No. 1, Kanpur Nagar whereby second application u/s 319, Cr. P.C. has been rejected.

The facts in brief of this case are that the F.I.R. of this case has been lodged by the applicant on 30.12.2004 at 3.10 p.m. in respect of the incident which had occurred on 22.9.2004 at about 5.00 p.m. in Case Crime No. 408 of 2004 under Sections 498A, 304B, I.P.C. and Section 3/4 of Dowry Prohibition Act P.S. Bidhuna District Kanpur Nagar alleging therein that Smt. Bittan alias Savitri Devi was married with the co-accused Manish Singh alias Raju on 6.6.2002, thereafter, the demand of dowry was raised by her in law and due to non-fulfilment of the dowry kerosene oil was poured on the deceased and she was set on fire on 22.9.2004 at about 5.00 p.m., thereafter, she was brought to Ursala Hospital where her dying declaration has been recorded, she succumbed to her injuries on 9.10.2004 at about 9.00 p.m. the case was investigated, thereafter, the charge-sheet was submitted against Manish Singh alias Raju and Ors., after taking cognizance the case was committed to the Court of Sessions by the learned Magistrate concerned where the examination-in-chief of P.W. 1 Asok Singh was recorded, on the basis of the examination-in-chief of P.W. 1, application u/s 319, Cr. P.C. was moved, the same was rejected on 2.11.2005 thereafter, a second application u/s 319, Cr. P.C. was moved, the same was also rejected on 5.7.2007, being aggrieved from the above mentioned orders, applicant filed the present application invoking the power under Sections 482, Cr. P.C.

It is contended by the learned Counsel for the applicant that the application u/s 319, Cr. P.C. was moved after examination-in-chief of P.W. 1 Ashok Singh but the same was rejected by the trial court on 5.11.2007 mainly on the ground that the application u/s 319, Cr. P.C. was moved only after the examination-in-chief of P.W. 1, who was not cross-examined, P.W. 1 was not an eye-witness of the alleged incident, his examination-in-chief was based on hearsay evidence and there was no sufficient evidence to exercise power conferred u/s 319, Cr. P.C., whereas on the basis of the examination-in-chief of P.W. 1, there was specific allegation against the proposed accused Chhiddan Singh and Ram Bahadur Singh also, it is a case of dowry-death where eye witness account generally is not available, in such case it has to be considered the circumstances for the purpose of prosecution the learned trial court has passed an illegal order dated 5.11.2005 by rejecting the application u/s 319, Cr. P.C. Thereafter, some other evidence was adduced in the Court, on the basis of that evidence second application was moved u/s 319, Cr. P.C., the same has been rejected by the learned trial court with the observation that it was moved on almost the same grounds against the same proposed accused while the first application u/s 319, Cr. P.C. was rejected on merits subsequent application is not maintainable and the Court was having no jurisdiction to revise his own order, the rejection of the second application u/s 319, Cr. P.C. is not proper, which is illegal because there is no bar to move the second application u/s 319, Cr. P.C., on the basis of subsequent evidence adduced in the Court but subsequent evidence involving the proposed accused is sufficient. Therefore, the learned trial court has committed manifest error in passing the order dated 5.7.2007, the same may be set aside.

In reply to the above submission, it is submitted by the learned A.G.A., that there is no illegality in the impugned orders passed by the trial court in rejecting the applications u/s 319, Cr. P.C., because the first application was rejected by the learned trial court on the ground that there was no sufficient evidence for invoking the power u/s 319, Cr. P.C., the second application was rejected on the ground that it was moved on almost the same ground. The learned trial court has not committed any error in passing the impugned orders, therefore, the prayer for quashing the same may be refused.

Considering the submission made by the learned Counsel for the applicant and the learned A.G.A., and from the perusal of the record, it appears that the learned trial court has rejected the first application u/s 319, Cr. P.C., mainly on the ground that it was moved immediately after the examination-in-chief of P.W. 1, Ashok Singh whereas P.W. 1, was not cross-examined and the trial court come to the conclusion that there was no sufficient evidence to invoke the powers u/s 319, Cr. P.C., the learned trial court discussed some other material also. The impugned order dated 5.11.2005 is well reasoned order, it requires no interference by this Court. Therefore, the prayer for quashing the impugned order dated 5.11.2005 is refused.

So far as the order dated 5.7.2007 is concerned as alleged by the learned Counsel for the applicant that the second application was moved u/s 319, Cr. P.C., when other evidence was also adduced in the Court concerned but it was rejected only on the ground that it was not maintainable and the trial court was having no jurisdiction to revise its own order. The view taken by the learned trial court in rejecting the second application u/s 319, Cr. P.C. is not proper because at this stage of the trial whenever sufficient evidence is adduced for summoning the proposed accused, the application u/s 319, Cr. P.C. may be filed and the trial court has power to invoke power conferred u/s 319, Cr. P.C., if on the same material second application u/s 319, Cr. P.C. is filed which is not maintainable but if after rejection of the first application u/s 319, Cr. P.C., some other evidence is adduced in the Court concerned and on the basis of other evidence if application u/s 319, Cr. P.C. is filed, the same shall be heard and disposed of on its merit such application is maintainable, the same cannot be rejected by saying that the Court has no jurisdiction to revise in its order and it was not maintainable.

In such circumstances, the learned trial court has committed the manifest error by not deciding the second application on its merit, therefore, impugned order dated 5.7.2007 is illegal and is hereby set aside.

However, it is directed that the learned trial court shall pass a fresh order on the second application u/s 319, Cr. P.C.

With the above direction this application is finally disposed of.