MOHD KHALID Vs. STATE OF U P

JUDGEMENT

(1.) -

(2.) THIS revision is directed against the order dated 16.7.1993 passed by Sri Pradyumna Kumar, Additional Sessions Judge, Jaunpur, in Sessions Trial No. 326 of 1991, State v. Salahuddin and others, summoning thereby the revisionists as the accused in exercise of his powers under Section 319 of the Code of Criminal Procedure.

(3.) LEARNED counsel for the revisionists has raised two fold arguments. His main contention is that the revisionists had been named in the F.I.R. and after due investigation, the police dropped them and did not file charge-sheet against them. It was thus contended that the revisionists could not in exercise of power under Section 319 of the Code of Criminal Procedure have been summoned. It was next contended that the uncross-examined statement of a witness does not amount to evidence within the meaning of Section 319. The learned counsel for the revisionists in support of his contention has placed reliance in the law laid down in Pradeep Kumar, revisionist v. State of U. P. and another, 2001 (2) ACrR 1873 respondents, 2001 (42) ACC 1021, in which the learned single Judge of this Court has held that if a person was already named as an accused in the F.I.R. and the charge-sheet was not submitted against him, such person cannot be summoned by invoking jurisdiction under Section 319 of the Code of Criminal Procedure. The learned counsel for the revisionists has also referred to another judgment of single Judge of this Court in Manoj Kumar and another v. State of U. P. and another, 2001 (2) ACrR 1419 : 2001 (43) ACC 292, wherein learned single Judge of this Court Hon. J. C. Gupta, J., as he then was, disagreeing with the proposition of law laid down by the single Judge in Pradeep Kumar's case (supra), referred the legal point to the larger Bench as to whether the view expressed in the case of Pradeep Kumar v. State of U. P., that in relation to a person who was named as an accused in the first information report but was not charge-sheeted by the police, powers under Section 319 cannot be invoked is correct? The learned counsel for the revisionists submitted that since the legal point involved in this revision has been referred to larger Bench, it would be proper to tag this revision along with that reference or to defer its decision till the decision of the larger Bench. I see no substance in his submission because the points involved in this revision have already been considered and settled by the Apex Court in Jogendra Singh v. State of Punjab, 1979 ACrR 438 (SC) : 1979 (16) ACC 43 and Girish Yadav and others v. State of M. P., 1996 (8) SCC 186. In Jogendra Singh's case (supra), the Apex Court has held that the expression "any person not being the accused" clearly covers any person, who is not being tried already by the Court and the very purpose of enacting such a provision like Section 319 (1), clearly shows that even persons who have been dropped by the police during the investigation, but against whom evidence showing their involvement in the offence comes before the criminal court are included in the said expression. (Emphasis supplied). The case of Girish Yadav also relates to the legality of the summoning order by which four persons named in the F.I.R. but not charge-sheeted by the police were found by the Apex Court to have been validly proceeded against. The law thus laid down by the Apex Court in both the cases referred to above settle the law point involved in this revision and answer the controversy that the person named in the F.I.R. but not charge-sheeted can also be summoned by invoking jurisdiction under Section 319 of the Code of Criminal Procedure. None of these cases has either been considered in the case of Pradeep Kumar or Manoj Kumar referred to above.