RAM JANAM YADAV Vs. STATE OF U.P

JUDGEMENT

(1.) The appeal challenges the order passed by the High Court dismissing the petition filed by the present appellants which was in turn filed challenging the order passed by the Learned Sessions Judge invoking powers under Sec. 319 of the Code of Criminal Procedure (hereinafter the Cr.P.C.) and impleading the present appellants as accused.

(2.) Mr. S. Nagamuthu, learned Senior Counsel appearing on behalf of the petitioner submitted that the High Court, while dismissing the petition, has relied upon the judgment of the Devision Bench of this Court in the case of "Jogendra Yadav and Ors. Vs. State of Bihar and Anr." reported in (2015) 9 SCC 244. Mr. S. Nagamuthu submits that the law laid down in "Jogendra Yadav and Ors. Vs. State of Bihar and Anr." does not lay down the correct position of law. He submitted that the said judgment holds that an accused who is impleaded by invoking powers under Section 319 of Cr.P.C. does not have an opportunity to file a discharge application under Sec. 227 of the Cr.P.C., in as much as he has an opportunity of being heard before being impleaded as an accused. It is submitted that there are divergent views of various High Courts. Some High Courts have held that, in view of the principles of natural justice, an accused is entitled to be heard prior to exercising of powers under Sec. 319 of Cr.P.C., while other High Courts have held that such a hearing is not necessary.

(3.) It is the submission of Mr. S. Nagamuthu that, since "Jogendra Yadav and Ors. Vs. State of Bihar and Anr." is decided by two learned Judges of this Court, the following issues are required to be referred to a larger Bench: (1), as to whether an accused who is impleaded under Sec. 319 of Cr.P.C. is entitled to file an application for discharge or not (2) as to whether a person before being impleaded as an accused is entitled to prior hearing or not. We had requested Sh. Ranjit Kumar, learned Senior Counsel to assist as an Amicus Curiae. Both Mr. S. Nagamuthu and Sh. Ranjit Kumar have done in-depth research and have relied upon various authorities.