- (1.) HEARD the learned Counsel for the petitioner Sri S. K. Awasthi and learned Government Advocate.
(2.) THIS writ petition has been filed under Articles 226/227 of the Constitution of India, challenging the order dated 14-11-2002 passed by the learned Additional Sessions Judge, Court No. 3, Hardoi wherein the pending, trial the Additional Sessions Judge has summoned the petitioner in exercise of his power under Section 319 Cr. P. C. An objection has been raised that the writ petition under Articles 226/227 of the Constitution would not be maintainable against the aforesaid orders as it is revisable. The learned Counsel for the petitioner despite opportunity being given to him that let this petition be converted into Criminal Revision so that the same may be listed before the appropriate Bench, insisted that because he has raised questions of law and has prayed for the issuance of a writ of prohibition, therefore, the writ petition is maintainable.
(3.) IT is to be noted that a writ of prohibition cannot be issued against a Court particularly in the instant case to the Court of Additional Sessions Judge who is proceeding with the criminal trial in accordance with the provisions of Code of Criminal Procedure. There cannot be any presumption of deprivation of liberty of the petitioner on the ground that he has been summoned under Section 319 Cr. P. C. The provisions of Article 21 of the Constitution of India, would not be of any assistance to him. Article 21 itself says that no person shall be deprived of his life or personal liberty except according to procedure established by law. A person who has been named in the FIR or who has been charge-sheeted or who is to subjected to the criminal proceedings, during the trial or during interrogation can be arrested under the procedure established by law. IT would not thus mean that such a person is being deprived of his life or personal liberty in violation of the provisions of Article 21 of the Constitution of India. In the instant case the petitioner was named in the FIR. The police has submitted final report which has not yet been accepted. On the strength of the aforesaid fact that since final report has been submitted though the same has not been accepted and the petitioner is named in the FIR, the learned Counsel for the petitioner has vehemently urged that the petitioner cannot be treated to be 'a person not being an accused'. The submission of the learned Counsel for the petitioner is that Section 319 Cr. P. C. does not give power and authority to the Sessions Judge to summon the person who is an accused and since the petitioner has been named as an accused in the FIR and final report has not yet been accepted, therefore, he does not fall within the meaning of the aforesaid provisions of Section 319 Cr. P. C.;