Rameshwar Nath Dubey vs State of U.P. and Another

B.K. Rathi, J.—Heard Sri Manish Tiwari, learned Counsel for the applicant and the learned A.G.A.

Accused Virendra is being tried in S.T. No. 53 of 1992 for offence u/s 302, Indian Penal Code before Ist Additional Sessions Judge, Ballia. It appears that hearing of the case has already been concluded and the case was reserved for judgment.

The learned trial court on 24.1.2002, has ordered that while he was examining the record for judgment, he found that the name of the applicant has been mentioned in the first information report that he has also been nominated in the statement by Raj Narain, P.W. 1, recorded in the Court ; that Shivadhar Singh, P.W. 2 and Garaj Narain Singh, P.W. 3, has also supported the statement of P.W. 1 that apart from this, case diary shows that in the statements u/s 161, Criminal Procedure Code Amar Nath Singh and Shravan Kumar Singh also nominated the applicant. Therefore, he has ordered that the applicant be summoned u/s 319, Criminal Procedure Code to stand trial with other accused. Aggrieved by it, the present petition has been preferred.

It is contended that the case diary and the first information report cannot be relied for passing the order u/s 319, Criminal Procedure Code The learned Counsel for the applicant has referred to the provisions u/s 319, Criminal Procedure Code, Clause (1) of the same is as follows:

Power to proceed against other persons appearing to be offence.--(1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed.

From the perusal of the above Clause (1), it appears that the accused can be summoned on the basis of the evidence, which is produced in the Court and not on the basis of the evidence collected by the Investigating Officer. Therefore, the trial court clearly erred in passing the order on the basis of F.I.R. and the statements of the witnesses recorded u/s 161, Criminal Procedure Code

The learned trial court has also observed that the case against the Petitioner is supported by Raj Narain, P.W. 1. However, it is argued that he is not a witness of the incident. He is only the first informant ; that had not seen the incident.

It has also been argued that Sri Garaj Narain Singh, P.W. 3, is the scribe of the first information report and is not the witness of the incident. Therefore, his statement does not support the participation of the applicant in the crime.

However, Shivadhar Singh, P.W. 2 in his statement has assigned the role of exhortation to the applicant. He has stated that after the victim took seat in the bus, the applicant exhorted to close the door and to take the bus to Ballia. This shows that Shivadhar, P.W. 2, has alleged participation of the applicant. His statement is sufficient to summon the applicant u/s 319, Criminal Procedure Code The order, therefore, cannot be quashed for the reason that the trial court in the order has also relied on the evidence which could not be relied for passing order u/s 319, Criminal Procedure Code

Therefore, I do not find any ground to interfere in the impugned order.

The petition is without merit and is hereby dismissed.