Kamla vs State of U.P.

K.N. Sinha, J.—Heard learned Counsel for the revisionist and learned A.G.A.

The present revision came up before this Court, aggrieved by the order dated 16.10.2002 and 14.11.2002, passed by the I Ind Additional Sessions Judge, Ghaziabad in S.T. No. 48 of 2002, State v. Anil and Anr. u/s 306 I.P.C. by which the revisionist was summoned as accused to face the trial u/s 319, Cr. P.C.

As it is borne out by the record, Suresh Kumar lodged a report on 15.7.2000 at 8.10 p.m. with police station Mussoorie, district Ghaziabad alleging that in the night between 7/8 July, Anil son of Vijay Pal came to the roof of complainant''s house with an intention to commit theft. The complainant woke up and Anil was caught hold of by the complainant and others. But by the intervention of the people of Mohalla, the matter was subsided. However, accused Anil and Vijay Pal facing trial and the revisionist spread a rumour that Anil had come to meet Km. Ranjeeta, the daughter of the complainant. The daughter of complainant Km. Ranjeeta was shocked by rumour and ultimately on 9th July, 2000, the complainant''s daughter Km. Ranjeeta put an end to her life because of this defamation. Consequently, the report was lodged against the revisionist, her husband and her son. The police investigated the case and submitted charge-sheet against the two accused. The case was committed to the Court of Sessions which took cognizance, framed charge and entered into the prosecution evidence. Complainant was examined as P.W. 1 and in his examination-in-chief, the name of revisionist Smt. Kamala Devi also came. On the application of the prosecution, considering the F.I.R. and the statement of complainant, the Additional Sessions Judge summoned the revisionist u/s 319, Cr. P.C. by the order dated 16.10.2002, which has been challenged in the present revision.

In the present revision, it has been challenged that the trial court had not considered the matter properly and it is well-settled principle of law that for invoking the power u/s 319, Cr. P.C., it should appear to the Court from the evidence that the person being summoned has committed an offence. The learned Counsel for the revisionist has submitted that on the allegation of mere spreading rumour by the complainant, the revisionist could not be summoned. He has relied upon a decision in the case of Michael Machado and Anr. v. Central Bureau of Investigation and Anr. 2000 (1) ACrR 747 (SC): JT 2000 (2) SC 531, in which the following observation has been made:

The Court while deciding whether to invoke the power u/s 319 of the Code, must address itself about the other constraints imposed by the first limb of Sub-section (4) that proceedings in respect of newly added persons shall be commenced afresh and the witnesses re-examined. The whole proceedings must be re-commenced from the beginning of the trial, summon the witnesses once again and examine them and cross-examine them in order to reach the stage where it had reached earlier. If the witnesses already examined are quite a large in number, the Court must seriously consider whether the objects sought to be achieved by such exercise is worth wasting the whole labour already undertaken. Unless the Court is hopeful that there is reasonable prospect of the case as against the newly brought accused ending in conviction of the offence concerned, we should say that the Court should refrain from adopting such a course of action.

I have very carefully examined this authority. The facts of that case are quite different to the case in hand. In the said case, the Investigating Officers had already recommended to the Bank for initiating departmental action against those officers who were summoned u/s 319, Cr. P.C. Moreover, 49 prosecution witnesses, who were earlier examined, had not named except when the last three witnesses were examined. The learned Magistrate came to the conclusion that the Appellants were also involved in the crime.

The Apex Court held that in such circumstances, the proceedings in respect of newly added person shall be commenced afresh and the witnesses be examined. The whole proceeding must be recommenced from beginning of the trial. The statements of about 49 witnesses do not show any evidence so as to implicate the new accused. Their names came in the evidence of enabling the trial court to proceed to its normal culmination in the circumstances of the case.

In the present case, only the examination-in-chief of one witness (complainant) has been recorded. This statement is in conformity with the allegations set forth in the F.I.R. The F.I.R. was lodged against the revisionist as well but the charge-sheet was submitted only against two accused leaving the revisionist. The F.I.R. shows the allegation against the revisionist was the same, as against the accused already facing trial. The girl is said to have committed suicide after being defamed. The role of the revisionist as shown in the F.I.R. and in the statements are similar.

In Shiv Narain and Ors. v. State of U.P. and Anr. 2000 (1) ACrR 921: 2000 CriLJ 3346, this Court held that the power u/s 319, Cr. P.C. can be exercised even on the basis of evidence of witness or witnesses recorded in examination-in-chief.

The Apex Court in Rukhsana Khatoon v. Sakhawat Hussain and Ors. 2002 (1) ACrR 419 (SC): 2002 (44) ACC 411, held that an accused though named in F.I.R. and not charge-sheeted can be summoned by the learned Sessions Judge. It has also been held that Section 319, Cr. P.C. can be invoked both by the Court having original jurisdiction and also by the Court to which the case has been committed or transferred for trial.

I, therefore, do not find any force in the contention of the learned Counsel for the revisionist. The revision is devoid of any force and deserves to be dismissed.

In the result, the revision fails and is dismissed. There shall be no order as to costs.