The Lucknow Bench of the Allahabad High Court while disposing an application held that a person, who is summoned under Section 319 Cr.P.C cannot avail the remedy of discharge under Section 227 CrPC.
A Single Bench of Justice Rajesh Singh Chauhan passed this order while hearing an application under section 482 filed by Suresh Kumar Singh.
The application under Section 482 Cr.P.C has been filed by the applicant to set aside the order dated 12.04.2023 passed by the Additional Session Judge, (POCSO-I), Ambedkar Nagar in Session Trial under Section 363, 366 & 376 IPC at Police Station- Ahirauli, District Ambedkar Nagar.
Counsel for the applicant has contended that despite the fact that the applicant was not named in the F.I.R nor in the charge-sheet though on the application of the complainant filed under Section 319 Cr.P.C, the trial Court summoned the applicant vide order dated 20.08.2015.
Counsel for the applicant has informed the Court that challenging the order dated 20.08.2015, the applicant has filed a petition before the Court i.e U/S 482/378/407 (Suresh Singh Vs State of U.P and Another) and the Court vide order dated 14.03.2019 granted liberty to the applicant therein to file a discharge application before the Court concerned. In compliance of the aforesaid order dated 14.03.2019, the applicant filed discharge application before the trial Court and that application was rejected by the trial Court vide impugned order dated 12.04.2023.
Counsel for the applicant further submitted that in the meantime, the applicant appeared before the trial Court and he has been enlarged on bail.
He has further submitted that if there being no cogent material/ evidence is available on record against the person, he/she should not be summoned under Section 319 Cr.P.C.
Anirudh Kumar Singh, A.G.A-I has further submitted that he is unable to comprehend as to why the Investigating Officer has not filed charge-sheet against the applicant when there was the statement of the prosecutrix recorded under Section 164 Cr.P.C wherein, she has levelled specific allegations against the applicant.
He has further submitted that on the basis of a statement of the prosecutrix recorded under Section 164 Cr.P.C, the applicant could have been summoned under Section 319 CrPC.
Anirudh Kumar Singh, A.G.A-I referring to the aforesaid judgement has stated with vehemence that this has been the consistent view of the Apex Court that the persons who are not named in the FIR nor named in the charge-sheet or who have been discharged before framing of the charges may be summoned under Section 319 CrPC.
The Court observed that,
Having considered the material placed on record and having regard to the dictum of the Apex Court (supra), I am of the considered opinion that if the trial Court finds it necessary during the course of trial that any person who was not named in the F.I.R or was also not named in the charge-sheet but there are some material/evidence to suggest that he/she is also responsible in committing such offence, he/she may be summoned under Section 319 CrPC. It is trite that there is no finality attached to Section 319 CrPC.
Further, it is also trite that exercise of power under Section 319 CrPC must be placed on higher pedestal. The accused summoned under Section 319 CrPC are entitled to invoke the remedy under the law against an illegal and improper exercise of power under Section 319 CrPC but that cannot have the effect of the order being undone by seeking a discharge under Section 227 Cr.P.C, therefore, the Apex Court in re: Jogendra Yadav (supra) has held that a person, who is summoned under Section 319 Cr.P.C cannot avail the remedy of discharge under Section 227 CrPC.
In the case, the petitioner has been summoned under Section 319 Cr.P.C for the reason that the prosecutrix had levelled specific allegation against the petitioner while recording her statement under Section 164 Cr.P.C during course of investigation, hence, I do not find any infirmity or illegality in the impugned order dated 12.04.2023 whereby the discharge application of the petitioner has been rejected in view of dictum of Apex Court in re: Jogendra Yadav (supra).
Considering the aforesaid submissions advanced by the counsel for the parties and without interfering the order dated 12.04.2023, the Court disposed of the application filed under Section 482 Cr.P.C, finally, at the admission stage giving liberty to the applicant/petitioner to appear before the Court concerned on the date fixed i.e 08.02.2024 to participate in the proceedings and he shall further participate in the proceedings and shall not take unnecessary adjournments.
If the applicant appears before the trial Court on 08.02.2024 i.e the date fixed, the non-bailable warrant dated 10.01.2024 shall not be executed against him. In case, the applicant does not appear before the Court concerned on the date fixed, the trial Court would be at liberty to take steps against him strictly in accordance with law, the Court ordered.