RAMASHRAY Vs. STATE OF U P

JUDGEMENT

(1.) MRS. Poonam Srivastava, J. Heard Sri Arvind Srivastava, learned Counsel for the petitioner and learned A. G. A. for the State.

(2.) THE order passed by the learned Additional Session Judge (Fast Track Court No. 2) Mahrajganj dated 24-11-2006 summoning the petitioner under Section 319 Cr. P. C. is impugned in the instant writ petition Written argument has been submitted by (he Counsel for the petitioner

(3.) RELIANCE has been placed by the Counsel for the petitioner on a number of decisions. The first decision is, Sohan Lal and Ors. v. State of Rajasthan, (1990) 4 Supreme Court Cases 580. The submission is that the persons who has been discharged under Section 245 Cr. P. C. of all or some of the charges is an 'accused' hence cannot be summoned in exercise of powers under Section 319 Cr. P. C. It is true that in the event, the Court, at the commencement of the trial discharges an 'accused' of certain offences, he cannot be summoned under Section 319 Cr. P. C. but the conclusion of the Investigating Officer cannot be said to be an order of discharge. It is only a conclusion of the Investigating Officer after completing the investigation that he chose not to charge-sheet the person against whom allegations were made in the First Information Report. The role of Investigating Officer is only to arrive at a conclusion after completing investigation and submit a report under Section 173 Cr. P. C. In the event, he arrives at a conclusion that a person named in the First Information Report does not appear to have committed the offence alleged on the basis of material collected he submits his conclusion. The Magistrate is not bound to accept it. The powers under Section 319 Cr. P. C. depends absolutely on the discretion of the Court and on his conclusion after recording some evidence during the trial. In the event, the Court finds that some other persons also appears to be involved in the Court, he is well within his right to summon such a person to face the trial alongwith other accused. Not being charge-sheeted is not equivalent to a discharge as in Sections 227, 239 or 245 of the Code, and, therefore, the decision relied upon by the Counsel for the petitioner is not applicable to the facts of the present case. The second decision relied upon by the Counsel is, Pulunisumy Gounder and Anr. v. State Represented by Inspector of Police, (2005) 12 Supreme Court Cases 327. It is argued that there are no reasonable prospect against the petitioner ending in conviction.