Kallu vs State of U.P.

G.S.N. Tripathi, J.—After perusal of the record, it appears that an application for summoning the Petitioner Kallu, son of Umrao, u/s 319, Code of Criminal Procedure was moved. After the statements of P.W. 1 Nathu Ram and P.W. 2 Vinod Kumar had been recorded in the trial Court (before the learned Addl. Sessions Judge). It also appears that in the original F.I.R. the names of Dhanu, Smt. Ram Kunwar and Ram Prasad alone find place as accused. But during the course of investigation, other witnesses, namely Kasturi and Kallu (Petitioner) also were found to be co-accused in this heinous crime. The learned Addl. Sessions Judge considered the matter on 19.9.1994. He also perused the case diary containing the allegations against these two accused, namely, Smt. Kasturi and Kallu. He also found that the investigating Officer had himself stated that investigation against Kallu was pending and he had not been arrested, although Smt. Kasturi had been arrested and a charge-sheet had been sent against her. Therefore, the learned Addl. Sessions Judge found that it will be proper to ask the I.O. himself to send a supplementary charge-sheet against the accused Kallu. He, accordingly, did not deem it proper to pass any order u/s 319, Code of Criminal Procedure.

However, on 5.4.95, it was found that a supplementary charge-sheet against Kallu had been submitted by the Investigating Officer. That had been received in the Court. Therefore, the learned Addl. Sessions Judge, formally allowed the application u/s 319, Code of Criminal Procedure. It is against this order that this petition has been moved in this Court u/s 482, Code of Criminal Procedure.

I have heard learned Counsel for the parties at a stretch and gone through the record. I find that there is absolutely no force in this petition and it deserves to be dismissed.

In fact, the accused Kallu had been mentioned in the case diary itself as a person against whom efforts were being made to procure his presence-through the warrant of arrest by the I.O. But till the submission of the charge-sheet, he had not been able to lay his hand upon him. The learned Addl. Sessions Judge realized this difficulty. Therefore, he did not deem it proper to pass any order u/s 319, Code of Criminal Procedure on 19.9.94. He thought it proper to wait for the supplementary charge-sheet to be submitted by the I.O. himself.

That purpose was achieved and the supplementary charge-sheet against the accused Kallu, the Petitioner, was submitted before 5.4.95. The original application u/s 319, Code of Criminal Procedure had been pending till then. Learned Addl. Sessions Judge should have summoned the accused Kallu on the basis of supplementary charge-sheet. A further order for summoning the accused u/s 319, Code of Criminal Procedure was redundant. It need not have been passed as it was not warranted by law. It is, accordingly, found that the additional sentence in the order dated 5.4.95 that the accused was being summoned u/s 319, Code of Criminal Procedure is held to be redundant and unnecessary and it is held that the accused has been in fact summoned on the basis of a supplementary charge-sheet against him.

With this clarification, the petition is dismissed. Stay order, if any is, hereby, vacated.