TARA Vs. STATE OF UP

JUDGEMENT

(1.) Heard Shri P.N. Mishra and Sri Jitendra Pal Singh, learned counsel for the revisionists, Shri M.C. Gupta for opposite party No.2 and learned Additional Government Advocate. This criminal revision has been filed against an order dated 14.09.2009 passed by the Additional Sessions Judge, FTC No.4, Mathura in ST No. 87 of 2009, summoning the revisionists under sections 147,323/149, 307/149,452 and 506 IPC in exercise of powers under section 319 of the Code of Criminal Procedure. The revisionists were summoned after the evidence of the informant PW1 Smt. Shyamwati and one of the injured PW2 Sahab Singh which disclosed that on the date of incident the revisionists and the other co-accused had assaulted the injured with various weapons at about 3.00 p.m. Prior to this after the police had submitted a final report, a protest petition was filed by the complainant, Shyamwati, and then after following the procedure of a complaint case the 6 co-accused other than the revisionists were summoned on 10.03.2008, but no order was passed summoning the revisionists.

(2.) No contention was raised on merit by the learned counsel for the revisionists. Only one submission was made, that as the learned Judicial Magistrate, Court No.8, Mathura had refused to summon the revisionists by the order dated 10.03.2008, whilst summoning the co-accused Gyani, Bhagat Singh, Ram Babu, Yashpal, Kripal and Suresh, it amounted to an order discharging the revisionists. It was contended that a discharged revisionist could not be summoned in exercise of powers under section 319 Cr.P.C. In support of this contention, learned counsel has placed reliance in the case of Sohan Lal and Ors. v. State of Rajasthan.1

(3.) I am not in agreement with the submission of the learned counsel. Sohan Lal's (supra) case is clearly distinguishable from the present case. In Sohan Lal the police had submitted a charge sheet under section 173 Cr.P.C. against the accused persons under sections 147/323/325/336/427 IPC on which the Judicial Magistrate had taken cognizance. Subsequently the Magistrate had passed an order discharging the two appellants (4 and 5), whilst charging the appellants 1, 2 and 3 only under section 427 IPC. The apex Court observed that so far as the 3 accused who had been charged under section 427 Cr.P.C. as they were already accused before the Court, they could have been summoned under the other sections 147/427/336/323/325 IPC only in exercise of powers under section 216 Cr.P.C, which permits alteration of the sections for which an accused is charged, but not in exercise of powers under section 319 Cr.P.C. The said summoning order was therefore upheld. However, so far as the two accused who had been discharged under all sections, it was not proper to summon them in exercise of powers either under section 216 Cr.P.C. or under section 319 Cr.P.C. Having been discharged under all sections appellants 4 and 5 could not be summoned under any section, as powers under section 216 Cr.P.C. only lie for adding or altering an existing charge. They could also not be summoned in exercise of powers under section 319 Cr.P.C. because in view of the order discharging them in purported exercise of powers under section 245 Cr.P.C. the said order it was observed by the Apex Court had attained finality and it could only be set aside after an enquiry by the Sessions Judge or High Court after the enquiry as contemplated under section 398 Cr.P.C.