Delhi High Court
State vs Chander Shekhar & Ors. on 1 May, 2009
Author: Mool Chand Garg
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL. REV. P. NO. 106/2007
% Date of decision: 01.05.2009
STATE ...PETITIONER
Through: Mr. Navin Sharma, Advocate
Versus
CHANDER SHEKHAR & ORS. ...RESPONDENTS
Through: Mr. Ram Kishan, Advocate for
respondent no. 2.
CORAM:
HON'BLE MR. JUSTICE MOOL CHAND GARG
1. Whether the Reporters of local papers
may be allowed to see the judgment?
2. To be referred to Reporter or not?
3. Whether the judgment should be
reported in the Digest?
MOOL CHAND GARG, J. (ORAL)
1. This revision petition has been filed against the order dated
11.10.2006 passed by the learned Additional Sessions Judge whereby
the ASJ, after summoning one Shammi Kumar a witness cited by
prosecution as accused under Section 319 Cr.P.C. vide his order dated
20.9.2006 not only discharged him, but after recording the statement
of Shammi Kumar under Section 313A Cr.P.C. he also discharged
Chander Shekhar an accused who was sent for trial along with other
accused persons to face a charge under Section 29 of Arms Act.
2. It is submitted by the learned APP that both the orders dated
20.9.2006 and 11.10.2006 are not sustainable in law for the reason
that for summoning any additional accused the procedure has been
prescribed under Section 319 Cr.P.C. which reads as under:-
Section 319 Power to proceed against other persons
appearing to be guilty of 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.
(2) (2) Where such person is not attending the Court, he
may be arrested or summoned, as the circumstances of
the case may require, for the purpose aforesaid.
(3) Any person attending the Court although not under
arrest or upon a summons, may be detained by such
Court for the purpose of the inquiry into, or trail of, the
offence which he appears to have committed.
(4) Where the Court proceeds against any person under
sub-section (1), then-
(a) the proceedings in respect of such person shall be
commenced afresh, and witnesses re-heard;
(b) subject to the provisions of clause (a0, the case may
proceed as if such person had been an accused person
when the Court took congnizance of the offence upon
which the inquiry or trial was commenced.
3. As no evidence had come on record, the orders summoning
Shammi Kumar was illegal and therefore his statement under Section
313A Cr.P.C. also could not have been recorded.
4. Vide second order dated 11.10.2006, the learned Additional
Sessions Judge after recording the statement of Mr. Shammi Kumar
under Section 313A Cr.P.C. discharged Chander Shekhar who in fact
had been sent for trial as stated above along with other accused
person in this case to face the charge under Section 29 of the Arms
Act, though on the basis of evidence collected during the investigation
of the case.
5. It is not a case where after appreciating the material placed on
record by the prosecution under Section 173 Cr.P.C, the court has
formed an opinion that no case is made out against Chander Shekhar.
6. The very fact is that Shammi Kumar could not have been
summoned in the manner as has been done in the present case, his
statement recorded illegally under Section 313A Cr.P.C. was also of no
relevance.
7. Whether Chander Shekhar was to be discharged or not was
possibly only if the learned Additional Sessions Judge would have come
to a finding from the material place on record by the prosecution that
no case is made out against him which is not the case. The other
occasion for acquitting Chander Shekhar could have if entire
prosecution recorded by the prosecution would have disclosed any
offence committed by him at the stage of his recording his statement
under Section 313 Cr.P.C. However, none of these situation arisen.
8. In view of the aforesaid, both the orders dated 20.9.2006 and
11.10.2006 cannot be sustained and are set aside.
9. Consequently Shammi Kumar would not have been tried as
accused till such time, the learned Additional Sessions Judge find any
evidence which may come against him and on the testimony of
witnesses examined by prosecution and if a case is made out against
him under Section 319 Cr.P.C. 10. However, as far as the Chander
Shekhar is concerned since his order of discharge is illegal he will
naturally be continued as an accused in this case. However, the
question of charge against him under Section 29 of the Arms Act would
be required to be considered by the learned Additional Sessions Judge
after giving an opportunity of hearing to the prosecution as well as
Chander Shekhar on the question of framing of charge. Till such time
this issue is decided the trial court will not proceed with the recording
of prosecution evidence.
11. With these observations, the revision petition stands disposed of.
Parties are directed to appear before the trial court 21st August, 2009,
the date already fixed in the matter.
12. Copy of the order be sent to the trial court for information and
compliance.
MOOL CHAND GARG, J.
MAY 01, 2009
b
