RAM SWAROOP Vs. LATOORI

JUDGEMENT

(1.) GIRIDHAR Malaviya, J. Heard Sri Satya Prakash learned counsel for the applicant and perused the impugned order. It has been contended by Sri Satya Prakash that once the applicants who were accused earlier had been not proceeded against and final report had been submitted against them by the investigating agency, the provisions of Section 319, Code of Criminal Procedure could not be attracted in the present case. According to learned counsel the words 'any person not being the accused' in the section should be under stood to indicate that a person who has never been suspected to be an accused and such a person alone could be summoned by the court under Section 319, Code of Criminal Procedure, after some evidence in the case had been record ed. However no such explanation has been added to the section itself. In the common sense 'not being the accused' would normally mean a person who is not an accused before a Court. It is difficult to comprehend that the section could not cover even such persons against whom despite there being convincing evidence forthcoming before a court against some one who is not an accused before it, still the court could not proceed against that person merely because during the investigation the police, for some reason, could not find sufficient evidence against that person with the result that he was not charge-sheeted. Sri Satya Prakash contends that if during the investigation any person had not been named and still the accused is summoned, any state ment made before the court would be contradictory to the statement recorded under Section 161, Criminal Procedure Code and as such any statement can never be of any consequence to warrant summoning of that person as an accused. Be that as it may, whether such evidence should not be sufficient to warrant summoning of a person as an accused under Section 319, Criminal Procedure Code should not be gone into by this Court in its revisional jurisdiction firstly because summoning of the accused would basically be an interlocutory order against which normally a revision is not maintainable and secondly this should be a matter which has to be left to the discretion of the court below. Needless to say that there can be instances of unfair or mala fide investigations and in that event it is only during the evidence of a particular witness in an enquiry or trial when the court may be convinced that the interest of justice demands enquiry or trial of such a person also against whom the police had not submitted a charge sheet for his trial and then the said person should also be brought before the court to answer the charge. What would be the evidentiary value of the evidence which may be found to be contradictory or against the statement recorded under Section 161, Criminal Procedure Code, will again be a matter of arguments and decision by the court after hearing both the sides.

(2.) THUS, there is no good ground for interference in this case. More over the impugned order was passed in the year 1986. When this order was challenged in the High Court on 11-12-1986 the proceedings in the court below had not been stayed. In a very probability by this time the proceedings in the court below also must have concluded. This would also be a strong reason for not interfering against the order of the court below by this Court in this case at this stage.