SANDEEP SHARMA Vs. STATE

JUDGEMENT

(1.) This Criminal Revision Petition No. 305 of 1999 is directed against the order of the Additional Sessions Judge dated 13.8.1999 whereby he declined to discharge the accused whom he had summoned in exercise of powers under Section 319 of the Code of Criminal Procedure (for short 'the Code') by order dated 5.7.1999 during pendency of the trial upon statement of Public Witness 4, Gyassudin. It is the case of the petitioner that during the investigation of the case arising out of the statement of Gyassudin before the police on 1.7.1997, FIR No. 501 /97 came to be registered at Police Station Seelampur under Section 307/34 of Indian Penal Code (for short 'TPC'). The statement of Gyassudin dated 1.7.1997 reads as follows:

(2.) It is further the case of the petitioner that facts leading to Gyassudin making complaint resulting in FIR No. 501 /97 have been investigated by the Investigating Agency which found that the petitioner had no connection with the case arising therefrom and therefore, after complete investigation, the petitioner had not been put up for trial. The petitioner's case, which was investigated in case arising out of FIR No. 501/97, was that on 29.9.1992 Gyassudin and his two associates, namely, Mirazuddin and Salim attacked the petitioner and his friends with knives upon which FIR No. 252/92 under Sections 307/324/34, Indian Penal Code, was registered at Police Station, Indraprastha Estate. That case is pending trial. During pendency of the trial of the case arising out of FIR No. 252/92, Gyassudin tried to prevail upon the petitioner to compound the offence, but upon the petitioner not acceding to the request of Gyassudin, Gyassudin on 15.7.1996 sent Shahid @ Kalia, a muscleman of the area, to pressurise the petitioner for compromise. When the petitioner did not succumb to the pressure of Shahid, Shahid is stated to have attempted to open fire from his country-made pistol which fortunately did not operate. Shahid was caught red-handed and a case under Section 506/120-B, Indian Penal Code was registered against Gyassudin and Shahid which is pending trial pursuant to FIR No. 222/96, Police Station Preet Vihar and charges have already been framed. In order, therefore, to pressurise the petitioner herein to settle the affairs, Gyassudin has deliberately introduced the name of the petitioner in his complaint dated 1.7.1997 which gaverise to FIR No. 501/97.

(3.) It was the case of the petitioner that from 25.6.1997 till 6.7.1997 he was not in Delhi and was holidaying at various places with his friends, Manoj Sharma and Mahinder Bhardwaj. Thisalibi setup by the petitioner was investigated by the police who was satisfied that the petitioner was not in Delhi on 1.7.1997 and that on that date he was at Dalhousie in Himachal Pradesh. This alibi ws supported by receipts and other material both documentary and oral. It was on this investigation that the challan presented before the Court did not array the petitioner as an accused but, however, arrayed Salauddin and Nuruddin. The trial proceeded on that basis but the Court felt that the petitioner herein ought to have been arrayed as an accused and, therefore, joined the petitioner as an accused.-This order of joining the petitioner as a co-accused was challenged by the accused before recording of the evidence by way of a revision petition in the High Court. The High Court on merits of the case by order dated 16.2.1999 held that upon the material available, the petitioner could not be added as an accused. Therefore, the trial commenced against Salauddin as Nuruddin remained absconding. During trial, Gyassudin was examined as Public Witness 4 who, in his examination-in-chief, set up a completely different case from that for which Salauddin had been charged and was being tried. During his exam ination-in-chief, Gyassudin completely exonerated Salauddin and Nuruddin but instead named the petitioner as the sole assailant. This witness was declared hostile and was cross-examined by the learned Additional Public Prosecutor. At this stage of the trial, the Trial Court exercising its powers under Section 319 of the Code, on the basis of statement of Gyassudin as Public Witness 4, summoned the petitioner by its order dated 5.7.1999 and framed charges by order dated 13.8.1999. The charge framed was as follows :