Crl.Rev. P. 106/2007 Page 1 of 4 * IN THE HIGH COURT OF DELHI AT NEW DELHI + CRL. REV. P. NO. 106/2007 % Date of decision: 01.05.2009 STATE …PETITIONER Through: Mr. Navin Sharma, Advocate Versus CHANDER SHEKHAR & ORS. ...RESPONDENTS Through: Mr. Ram Kishan, Advocate for respondent no. 2. CORAM: HON’BLE MR. JUSTICE MOOL CHAND GARG 1. Whether the Reporters of local papers may be allowed to see the judgment? 2. To be referred to Reporter or not? 3. Whether the judgment should be reported in the Digest? MOOL CHAND GARG, J. (ORAL) 1. This revision petition has been filed against the order dated 11.10.2006 passed by the learned Additional Sessions Judge whereby the ASJ, after summoning one Shammi Kumar a witness cited by prosecution as accused under Section 319 Cr.P.C. vide his order dated 20.9.2006 not only discharged him, but after recording the statement of Shammi Kumar under Section 313A Cr.P.C. he also discharged Chander Shekhar an accused who was sent for trial along with other accused persons to face a charge under Section 29 of Arms Act. Crl.Rev. P. 106/2007 Page 2 of 4 2. It is submitted by the learned APP that both the orders dated 20.9.2006 and 11.10.2006 are not sustainable in law for the reason that for summoning any additional accused the procedure has been prescribed under Section 319 Cr.P.C. which reads as under:- Section 319 Power to proceed against other persons appearing to be guilty of offence- (1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed. (2) (2) Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid. (3) Any person attending the Court although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trail of, the offence which he appears to have committed. (4) Where the Court proceeds against any person under sub-section (1), then- (a) the proceedings in respect of such person shall be commenced afresh, and witnesses re-heard; (b) subject to the provisions of clause (a0, the case may proceed as if such person had been an accused person when the Court took congnizance of the offence upon which the inquiry or trial was commenced. 3. As no evidence had come on record, the orders summoning Shammi Kumar was illegal and therefore his statement under Section 313A Cr.P.C. also could not have been recorded. 4. Vide second order dated 11.10.2006, the learned Additional Sessions Judge after recording the statement of Mr. Shammi Kumar under Section 313A Cr.P.C. discharged Chander Shekhar who in fact had been sent for trial as stated above along with other accused person in this case to face the charge under Section 29 of the Arms Act, though on the basis of evidence collected during the investigation of the case. Crl.Rev. P. 106/2007 Page 3 of 4 5. It is not a case where after appreciating the material placed on record by the prosecution under Section 173 Cr.P.C, the court has formed an opinion that no case is made out against Chander Shekhar. 6. The very fact is that Shammi Kumar could not have been summoned in the manner as has been done in the present case, his statement recorded illegally under Section 313A Cr.P.C. was also of no relevance. 7. Whether Chander Shekhar was to be discharged or not was possibly only if the learned Additional Sessions Judge would have come to a finding from the material place on record by the prosecution that no case is made out against him which is not the case. The other occasion for acquitting Chander Shekhar could have if entire prosecution recorded by the prosecution would have disclosed any offence committed by him at the stage of his recording his statement under Section 313 Cr.P.C. However, none of these situation arisen. 8. In view of the aforesaid, both the orders dated 20.9.2006 and 11.10.2006 cannot be sustained and are set aside. 9. Consequently Shammi Kumar would not have been tried as accused till such time, the learned Additional Sessions Judge find any evidence which may come against him and on the testimony of witnesses examined by prosecution and if a case is made out against him under Section 319 Cr.P.C. 10. However, as far as the Chander Shekhar is concerned since his order of discharge is illegal he will naturally be continued as an accused in this case. However, the question of charge against him under Section 29 of the Arms Act would be required to be considered by the learned Additional Sessions Judge after giving an opportunity of hearing to the prosecution as well as Crl.Rev. P. 106/2007 Page 4 of 4 Chander Shekhar on the question of framing of charge. Till such time this issue is decided the trial court will not proceed with the recording of prosecution evidence. 11. With these observations, the revision petition stands disposed of. Parties are directed to appear before the trial court 21st August, 2009, the date already fixed in the matter. 12. Copy of the order be sent to the trial court for information and compliance. MOOL CHAND GARG, J. MAY 01, 2009 b