Allahabad High Court
Ashish @ Shani Gupta vs State Of U.P. And Another on 5 August, 2022
Bench: Gautam Chowdhary
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 83
Case :- APPLICATION U/S 482 No. - 19995 of 2021
Applicant :- Ashish @ Shani Gupta
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Rajesh Kumar Sharma,Abhas Sharma
Counsel for Opposite Party :- G.A.,Anand Pati Tiwari
Hon'ble Gautam Chowdhary,J.
Heard learned counsel for the applicant, learned A.G.A. for the State and perused the material on record.
This application under Section 482 Cr.P.C. has been filed by the applicant with a prayer to stay the effect and operation of impugned order dated 03.08.2021 passed in Special Case No. 816 of 2020 (State Vs. Ramji Porwal), arising out of Case Crime No. 280 of 2020, under Sections 363, 366, 376 I.P.C. and Section 3/4 POCSO Act, Police Station Ajitmal, District Auraiya. It is further prayed that proceedings of aforesaid case may be dropped against the applicant.
It is contended by the learned counsel for the applicant that though the applicant was named in the first information report but after investigation, the Investigating agency found complicity of the applicant to be false and, therefore, exonerated them and submitted charge sheet against other accused persons, as such, order impugned be set aside. Learned counsel for the applicant has further contended that while passing the order impugned the Courts below has not recorded the satisfaction that as per the evidence available on record would lead to conviction of the applicant, therefore, passing of the orders impugned is bad in law.
In support of his contention, learned counsel for the applicant has relied upon judgement of Hon'ble Apex Court in the case of Sarabjit Singh and another Vs. State of Punjab and another, reported in (2010) 2 SCC (Cri) 141, in which Hon'ble Apex Court has held that 'an order under Section 319, should not be passed only because first informant or one of the witnesses seeks to implicate other persons(s)- sufficient and cogent reasons are required to be assigned by court so as to satisfy ingredients of Section 319.' Learned counsel for the petitioners has also relied upon judgment of Hon'ble Apex Court in the case of Hardeep Singh Vs. State of Punjab and others, reported in (2010)2 SCC (Cri) 355, in which Hon'ble Apex Court has held that 'power under Section 319 can be exercised only if the court is satisfied that the accused summoned in all likelihood would be convicted.' Leaned counsel for the applicant has further relied upon judgments in the case of Krishnappa Vs. State of Karnataka, reported in 2004(50) ACC 343 and in the case of Mohd. Shafi Vs. Mohad. Rafiq and another, reported in 2007(58) ACC 254. Learned counsel for the applicant has also relied upon the judgment of Hon'ble Apex Court reported in 2009 (2) SCC 696 (Lal Suraj alias Suraj Singh another Vs. State of Jharkhand), in support of his contention. Learned counsel for the petitioners has further relied upon a decision of Hon'ble Apex Court reported in 2009 (65) ACC 971 (Ram Singh and others Vs. Ram Niwas and another), in which Hon'ble Apex Court has held that in the event, it appears from the evidence that any person, not being an accused, has committed any offence for which he could be tried together with the accused, the court may proceed against him for the offence which he appears to have committed. It has been further held that the provision of Section 319, Cr.P.C. confers an extraordinary power upon a court to summon a person who, at the relevant time, was not being tried as an accused, subject, of course, to fulfilment of the condition that it appears to the court that he had committed an offence. A finding to that effect must be premised on the evidence that had been brought on record.
Learned A.G.A. has contended that complicity of the applicant came into light in the statement of P.W.1 and P.W.2 who have named the applicant and has assigned the specific role of the applicant in commission of an offence therefore, the order impugned summoning the applicant in exercise of power under Section 319, Cr.P.C. has rightly been passed and there is no illegality in the impugned orders.
Under Section 319, Cr.P.C., the court can summon any person as an accused who has not been charge sheeted or is not an accused, but before passing the order the court has to satisfy itself that there is a prima facie evidence against the person to be summoned by the court.
Learned A.G.A. has placed reliance of judgment of Hon'ble Apex Court in the case of Ram Pal Singh and others Vs. State of U.P. and another, reported in 2009(75) AIC 4 (SC), wherein Hon'ble Apex Court has held that all that is required by Court for invoking its powers under Section 319 of Cr.P.C. is, to be satisfied that from the evidence adduced before it, a person against whom no charge has been framed, but whose complicity in the offence appears to be clear, should be tried together with the other co-accused. Discretion is left with the Court to take a decision in the matter. It is further held that where prosecution witnesses had named appellants as persons, who were involved in the commission of offence, though they were not named in the charge sheet, trial court was not justified by rejecting the application under Section 319, Cr.P.C.
From the perusal of the statement of P.Ws.1 and 2, since there are specific allegations against the applicant, therefore, there is no illegality, incorrectness or impropriety in the order impugned by which the applicant has been summoned.
The prayer for quashing the order impugned is hereby refused.
Interim order, if any, stands vacated.
With the aforesaid directions, this application dismissed.
Order Date :- 5.8.2022
Abhishek Singh
