RESERVED JUDGMENT IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL REVISION NO.79 OF 2003 Kunwar Pal S/o Meghraj R/o Vill.Mohammadpur Bujurg, P.S. Laksar, District Hardwar … Revisionist Versus State of Uttaranchal & five others … Respondents Dated: August 13, 2008 Sri Rajendra Singh, learned counsel for the revisionist Sri M.A .Khan, learned brief holder for the State/Respondent Nos.1 to 3 Sri S.K. Shandilya, learned counsel for Respondent No.4 No one appears for Respondent Nos.5 and 6 HON. DHARAM VEER, J. This criminal revision, preferred by the revisionist under Section 397/401 of The Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), is directed against the judgment and order dated 03.05.2003 passed by Sessions Judge, Hardwar in Criminal Revision No.596/2002, Gyan Chand & others Vs. State of Uttaranchal, whereby the learned Sessions Judge has allowed the revision and set aside the order dated 8.10.2002 passed by IInd FTC/Civil Judge (Senior Division), Roorkee. 2. I have heard Sri Rajendra Singh, learned counsel for the revisionist, Sri M.A. Khan, learned brief holder for the State/Respondent Nos.1 to 3 and Sri S.K. Shandilya, learned counsel for Respondent 2 No.4 and perused the entire material available in the file. No one appears for Respondent Nos.5 and 6, though service is reported to be sufficient. 3. In brief, the facts of the case are that in S.T. No.437 of 2000, State Vs. Pinky, the prosecution moved an application under Section 319 Cr.P.C. with a prayer that Respondent Nos.4 to 6 namely Gyan Chand, Anwar and Kirat respectively may be summoned in the court. Against the application moved by the prosecution, Respondent Nos.4 to 6 filed their objections. The prosecution in support of its case produced P.W.1 Meghraj, P.W.2 Babu Ram, P.W.3 Kunwar Pal and P.W.4 Raj Kumar in the aforesaid S.T. No.437/2000. In the statement recorded before the trial court, P.W.1 Megh Raj has stated that when he was sitting in his house, then five persons namely Gyan Chand (Respondent No.4), his sons Pinky & Situ, Anwar Singh (Respondent No.5) and his son Kirat (Respondent No.6) came. Respondent No.6-Kirat was armed with a sword and rest of the accused persons were armed with Lathis. These accused persons while abusing P.W.1 Megh Raj started beating him. Due to the above-said incident, P.W.1 Meghraj received the injuries. The evidence of P.W.1 Meghraj is also corroborated with the evidence of P.W.2 Babu Ram, P.W.3 Kunwar Pal and P.W.4 Raj Kumar, who are also the eyewitnesses of the incident. On the basis of the evidence recorded before the trial court, the 3 learned IInd FTC/Civil Judge (Senior Division) Roorkee vide order dated 8.10.2002 allowed the application moved by the prosecution and summoned the Respondent Nos.4 to 6 Gyan Chand, Anwar Singh & Kirat Singh respectively for the offences punishable under Sections 147/148/323/ 324/325/504 IPC. Against the said order dated 8.10.2002 passed by the trial court, the Respondent Nos.4 to 6 preferred a Criminal Revision before Sessions Judge, Hardwar. The learned Sessions Judge, Hardwar vide his judgment and order dated 3.5.2003 allowed the revision and set aside the judgment and order dated 8.10.2002 passed by the trial court. Feeling aggrieved by the aforesaid judgment and order dated 3.5.2003, the complainant/revisionist has preferred the present revision before this Court. 4. Sri Rajendra Singh, learned counsel for the revisionist argued that the order passed by Sessions Judge is against the law and facts on record. He further submitted that Sessions Judge has erred in law by allowing the revision on the basis of presumptions. I find force in the argument advanced by learned counsel for the revisionist. The learned Sessions Judge, Hardwar has allowed the revision only on the ground that only four witnesses have been examined by the prosecution and rest of the witnesses are remaining for recording their evidences. This finding recorded by Sessions Judge, 4 Hardwar is not correct as per law. In this circumstance, Section 319 Cr.P.C. is essential to mention here which is reproduced as under: - 319. Power to proceed against other persons appearing to be guilty of offence- (1) Where, in the court 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) 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 trial 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 the witnesses re-heard; (b) Subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence 5 upon which the inquiry or trial was commenced. 5. As per Section 319 Cr.P.C. quoted above, where, in the court 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. From a perusal of the order dated 8.10.2002 passed by IInd FTC/Civil Judge (Senior Division) Roorkee, it appears that trial court has summoned the Respondent Nos.4 to 6 on the basis of the evidence of the four eyewitnesses who have supported the prosecution case and they have given their specific evidence against Respondent Nos.4 to 6. Out of these four eyewitnesses, one is the injured witnesses P.W.1- Meghraj. Besides this, Respondent Nos.4 to 6 are also named in the FIR. Due to the foregoing facts and circumstances, I do not find any illegality, impropriety or incorrectness in the judgment and order dated 8.10.2002 passed by IInd FTC/Civil Judge (Senior Division) Roorkee. As such, the judgment and order dated 03.05.2003 passed by Sessions Judge, Hardwar is not correct and justified and the same is not as per law and the evidence available on record. 6 6. Sri S.K. Shandilya, learned counsel for the Respondent No.4 argued that a cross case is also pending in the court against the revisionists, hence the summoning order is bad in law. The argument advanced by counsel for Respondent No.4 is not sustainable in the eye of law due to the reason that the pendency of the cross-case is not at all of any effect to the pendency of the present trial. Further, the cross case is not affected by the summoning of the accused persons in any way which is to be heard on merits. 7. Learned counsel for Respondent No.4 further argued that in the present case, the FIR is delayed. This argument advanced by counsel for Respondent No.4 is also of no help. It is a matter of trial whether the FIR is delayed or whether the delay was explained by the prosecution. This fact will be decided by the trial court after recording the entire evidence of the case. 8. It was further argued on behalf of respondent no.4 that in the statements recorded u/s 161 Cr.P.C., the prosecution witnesses have not given their evidence against Respondent Nos.4 to 6. This argument is also of no help for the respondents as under Section 319 Cr.P.C., it is clear that accused persons have to be summoned on the basis of the evidence recorded in the trial court. In the instant case also, the respondent Nos.4 to 6 were summoned on the basis of the evidence recorded 7 before the trial court. After recording of evidence before the trial court, the trial court has summoned the accused persons u/s 319 Cr.P.C., therefore, there is no illegality, or impropriety in the order- dated 8.10.2002 passed by IInd FTC/Civil Judge (Senior Division) Roorkee. 9. For the reasons recorded above, the revision is allowed. The judgment and order dated 3.5.2003 passed by Sessions Judge, Hardwar is set aside and order dated 8.10.2002 passed by IInd FTC/Civil Judge (Senior Division) Roorkee, is hereby confirmed. (Dharam Veer, J.) August 13, 2008 Rajeev Dang