ANAND KUMARI Vs. STATE OF U P

JUDGEMENT

(1.) The matter was heard on 6.8.1998 and orders had been reserved, which is being pronounced today. There had been a direction on 6.8.1998 that till orders were recorded, further proceedings in case Crime No. 1218 of 1996, pending before the C.J.M., Mirzapur, would remain stayed.

(2.) By an order of the C.J.M., Mirzapur, dated 7.1.1998 the present applicants were summoned for an Offence under Section 380, I.P.C. in purported exercise of the powers of the Magistrate under Section 319, Cr.P.C. The aggrieved applicants moved a Criminal Revision No. 16 of 1998 before the Sessions Judge, Mirzapur, and the revision application was dismissed on 13.7.1998. A compLalnt was filed by one Rajendra Kumar before the C.J.M., Mirzapur, for an offence under Section 379, I.P.C. on 8.4.1996 for an incident that allegedly took place on 21.3.1996. The compLalnant and his witnesses were examined under Sections 200 and 202, Cr.P.C. and upon those statements the Magistrate recorded an order dated 26.9.1996 under Section 203, Cr.P.C. dismissing the compLalnt against the present applicants, but one Om Prakash son of applicant no.1 was summoned for an offence under Section 380, I.P.C. This order was not challenged at any point of time before any forum and, accordingly, the order attained finality. The trial against Om Prakash proceeded before the court below and during the course of trial statements of the witnesses were recorded under section 244, Cr.P.C. At that stage, an application was filed under Section 319, Cr.P.C. for summoning the accused applicants on the basis of the statements made in court and the Magistrate did record the order dated 7.1.1998 in exercise of his powers under Section 319, Cr.P.C. and he summoned the present two applicants. Only thereafter the revision application, as stated above, was preferred and was dismissed on 13.7.1998.

(3.) The order of the Magistrate, as confirmed by the Sessions Judge, was challenged mainly on two grounds. It was stated that the Magistrate, after discharging the present applicants at an earlier stage, would not have taken recourse to Section 319, Cr.P.C. as that power could be exercised against a person who was not an accused, while the present applicants were very much accused persons before the court below, albeit discharged. It was also contended that the statements made by the witnesses under Section 244, Cr.P.C. were verbatim the same as were made under Sections 200 and 202, Cr.P.C. and when these very statements were once disbelieved or thought not sufficient for issuance of summons, the same would not have been acted upon at a subsequent stage. So far the first point is concerned, the learned counsel placed reliance on a decision of the Supreme Court as reported in A.I.R. 1990 S.C. 2158 (Sohan Lal and Others Vs. State of Rajasthan). Two Hon'ble Judges of the Supreme Court had before them a case in course of a criminal appeal against a judgment of the Rajasthan High Court. In that matter one Shanti Lal had lodged a report before police against four persons for having pelted stones at his house causing damage and causing injuries to certain persons. Police submitted charge-sheet for offences under Sections 147/323/325/336/427, I.P.C. and the Magistrate, after taking cognizance and after hearing the arguments, discharged two persons of all the charges levelled against them and directed framing of charge under Section 427 I.P.C. only against some others. Subsequently, the Assistant Public Prosecutor submitted an application for amendment of charge under Section 216, Cr.P.C. in view of the evidence that was led in the case. The Magistrate took fresh cognizance for offences under Sections 147/427/336/323/325, I.P.C. not only against three persons standing trial, but also against the other two, who were discharged after hearing.