AASEJORGENSEN Vs. STATE OF U P

JUDGEMENT

(1.) VIJAY Kumar Verma, J. Can a person summoned pursuant to an order passed by a Court in exercise of power conferred by Section 319 of the Code of Criminal Procedure, 1973 (Cr. P. C. for short) be tried for the offence for which he is summoned after the conclusion of the trial wherein such an order of summoning was passed, is also a question that falls for determination in this revision, which has been preferred against the order dated 5. 2. 2004 passed by 1st Additional Sessions Judge, Chitrakoot in ST. No. 263 of 2000 (State v. Jagdish) under Section 302, I. PC. , whereby the revisionists and one other person Rahmat Ullah Khan have been summoned to face trial together with the charge-sheeted accused-Jagdish.

(2.) THE facts leading to the filing of this revision, in brief, are that murder of S. P. Bezeleel was committed in the intervening night of 1/2. 5. 1998 in a house situated in Mission Compound Karwi, District Chitrakoot. First Information Report was lodged on 2. 5. 1998 at 7. 45 a. m. by his son Noel Bezeleel at P. S. Karwi, where a case under Section 302i. PC. was registered at crime No. 163/98 against (1) Jagdish Prasad; (2) Anna Mary Grothe; (3) Miss Aase Jorgensen and (4) Rahmat Ulla Khan. After investigation, charge-sheet was submitted against Jagdish only. On the case being committed to the Court of Session, ST. No. 263 of 2000 was registered against the accused Jagdish, who was charged under Section 302, I. PC. After recording the statement of P. W. 1 Noel Bezeleel, the public prosecutor moved an application under Section 319, Cr. P. C. to summon Anna Mary Grothe, Aase Jorgensen and Rahmat Ullah Khan to face trial together with the accused Jagdish. That application has been allowed by the Court below vide impugned order and the revisionists as well as Rahmat Ullah Khan have been summoned to face trial under Section 302, I. P. C. in case crime No. 163 of 1998, P. S. Karwi together with accused Jagdish. Hence, this revision.

(3.) SECTION 319 (4) (a), Cr. P. C. shows that the proceedings against the person/persons under sub-section (1) are required to be commenced as afresh and the witnesses reheard. The entire proceedings have to be recommenced from the beginning of the trial. All the witnesses have to be examined afresh. Opportunity has to be granted to such a person to cross-examine those witnesses. There has to be de hovo trial. Under sub-section (4) (b) of the aforesaid provision, it is specifically made clear that it will be presumed that newly added person had been an accused person when the Court took cognizance of the offence upon which the enquiry or trial was commenced. It means that by virtue of SECTION 319 (4) (b), a legal fiction is created that cognizance would be presumed to have been taken so far as newly added accused is concerned. Therefore, having regard to the provisions of sub-section (4) (a)and (b) of SECTION 319, in my considered view, due to conclusion of the trial against charge-sheeted accused, order passed by the Court under SECTION 319 (1), Cr. P. C. summoning other persons to face trial, would not become inoperative or ineffective.