RAJDHAR Vs. STATE OF U P

JUDGEMENT

(1.) List is revised. No one is present for the applicant. Learned A. G. A. appears for the State.

(2.) The applicant Rajdhar has filed this application invoking inherent powers for quashing the order dated 15-4-1999 passed by the Sessions Judge Chitrakoot in Session Trial No. 33 of 1993 under Section 302 I. P. C. The First Information Report was registered on 24-5-1991 at 7.40 a. m. against the five accused namely Rajdhar s/o Vijayanand, Premika s/o Vijyariand, Vishnu Dayal s/o Raghuman, Hemraj s/o Mahesh and Dhanpat s/o Raghuman. According to the narration of the FIR, the husband of the complainant Malkhan @ Btilbul was done to death in the middle of intervening night 23-24-5-1991. After completion of investigation, charge sheet was submitted against three accused Lavelesh s/o Khuraki, Dafola @ Raja Bhai and Mohan s/o Mahesh Chaubey, all of them were not named in the FIR. The Session Trial commenced against the said three accused under Sections 302, 120 I. P. C. Smt. Chandrawati wife of the deceased was examined as P. W. 1, Santosh Kumar son of the deceased was examined as P. W. 2. The learned Sessions Judge, Chitrakoot summoned the present applicant Rajdhar along with other two accused under Section 319 Cr. P. C. While summoning the accused, the learned Sessions Judge recorded a finding that the prosecution witnesses had made clear allegations against the named accused in the First Information Report and also stated that the Investigating Officer did not investigate the matter under the influence of the accused and submitted the charge sheet against different persons, who are not named in the First Information Report. Two named accused Vishnu Dayal and Hemraj had already died before the trial could be completed as such three accused including the present applicant were summoned. Specific allegations were levelled against the investigating officer by the two witnesses and affidavits were also given by them, which is Exhibits Ka-2 and Ka-5. Eyewitnesses have clearly exonerated the three persons namely Lavlesh, Dafola @ Raja Bhai and Mohan against whom the police submitted charge sheet. On the basis of said statement, the named accused were summoned to face the trial by means of the impugned order. Argument advanced on behalf of the applicant is that Section 319 Cr. P. C. contemplates summoning and trial of such other persons, who have not been facing the trial and the Court feels from the evidence recorded during the trial or inquiry that those person should be tried together with the other accused for the offence, it can proceed against such persons. Provision of Section 319 Cr. P. C. gives ample power to the Court to take cognizance and add "any person" not being accused before it and try him along with accused persons sent up for the trial. It has emphatically been stated that since the three accused, who were facing the trial have been acquitted by means of common order dated 15-4-1999, nothing remains to be tried and, therefore, the trial has' come to an end and the impugned order stands vitiated in law. Since no trial is pending, the learned Session Judge could not exercise powers under Section 319 Cr. P. C. Counter affidavit has been filed by the Sub-Inspector Bajrangi Singh to which rejoinder affidavit has also been filed. No counter affidavit has been filed by the opposite party No.3. The order sheet dated 9-8-2000 shows that notices have been received back after due service but no counter affidavit has been filed on behalf of the complainant. In the present case, the learned Sessions Judge had passed a composite order under Section 319 Cr. P. C. as well as; by the same order he has recorded a finding of acquittal in respect of accused Lavlesh, Dafola Raja Bhai and Mohan. After hearing counsel for the applicant and learned A. G. A. for the State, it is necessary to examine Section 319 Cr. P. C., which is reproduced below : 319. Power to proceed against the persons appearing to be guilty of offence.-

(3.) Section 319 (4) (a) prescribes that the proceedings in respect of such persons, who have been summoned during course of the trial on the basis of evidence shall be commenced afresh, and the witnesses be reheard. Sub-clause (b) of clause 4 of Section 319 Cr. P. C. entitles the Court to proceed against the newly added accused as they were accused at the time when the Court took cognizance of the offence. In the instant case, the present accused Rajdhar along with four other accused were named in the First Information Report and specific allegations were levelled against them. The learned Sessions Judge has very categorically discussed the statement of two witnesses P. W. 1 and P. W. 2. on the basis of which, he had arrived at the conclusion that the named accused should also be tried. 1 do not think that there is any illegality in that part of the judgment. However, the Sessions Judge had completely erred in law in acquitting the three accused, who were sent up for trial by means of common judgment and order on the basis of evidence of P. W. 1 and P. W. 2 alone. Perusal of the charge sheet shows that there are as many as 34 witnesses mentioned, which the prosecution proposed to examine. In the circumstances, before the prosecution has completed its evidence and arguments are advanced after an opportunity for defence is afforded, the trial is still in progress and it cannot be said to be completed. Learned Sessions Judge erred in law in recording the finding of acquittal even before the trial was completed and that part of the Judgment is against the procedure provided in Chapter XVIII of the Criminal Procedure Code. This chapter provides