- (1.) RAVINDRA Singh, J. Heard Sri H. N. Singh and Sri B. N. Singh learned Counsels for the applicant and learned A. G. A,.
(2.) THIS application has been filed against the order dated 01-02-2005 passed by learned Sessions Judge, Sonbhadra in Session Trial No. 184 of 2004, State v. Matuk Lal & Ors. , under Sections 498-A and 304-B I. P. C. and Section 3/4 Dowry Prohibition Act, whereby the application under Section 319 Cr. P. C. filed by D. G. C. (Crl.) was allowed and the applicant Ram Awadh and co- accused Sikendar were summoned to face the trial under Sections 498-A and 304-B I. P. C and Section 3/4 Dowry Prohibition Act and non- bailable warrants were issued against the applicant and co- accused. The facts, in brief, of the present case are as under : An FIR was lodged by one Kashi Ram Yadav in Case Crime No. C- 2/2004 under Section 304-B I. P. C. and Section 3/4 Dowry Prohibition Act on 24-7-2004 against the applicant and co-accused "matuk Lal, Ramkeshwar Yadav, Smt. Kewali, Anti Lal, Smt. Chukani Devi and Sikandar. After completing the investigation the I. O. submitted the charge-sheet dated 10-9-2004 in the Court of the learned Magistrate only against Matuk Lal, Ramkeshwar Yadav. Smt. Kewali, Anti Lal and Smt. Chukani alias Lalti Devi for the offences punishable under Section 304-B I. P. C. and Section 3/4 Dowry Prohibition Act, but the charge-sheet against the applicant and co-accused Sikandar was not submitted. On the basis of the charge-sheet submitted by the I. O. the learned Magistrate took the cognizance against the abovementioned five persons, who were charge-sheeted by the I. O. and the case was committed to the Court of the Sessions. During the pendency of the trial the statement of P. W. 1 Kashi Ram and P. W. 2 Ganga Ram were recorded in the Court of Learned Sessions Judge on 11. 1 2005 and 17-1-2005 respectively. Thereafter, on the basis of Statements of P. W. 1 Kashi Ram and P. W. 2 Ganga Ram, the learned D. G. C. (Crl.) moved an application dated 21 1. 2005 under Section 319 Cr P. C. in the Court of learned Sessions Judge, Sonbhadra praying therein that on the basis of the statements of the P. W. 1 Kashi Ram and P. W. 2 Ganga Ram the applicant and the co-accused Sikander have also committed the alleged offence, so they may be summoned to face the trial, together with the other co-accused Against that application, the objection was filed by the co-accused Matuk Lal and others through his Counsel. After considering the statements of the P. W. 1 Kashi Ram and P. W. 2 Ganga Ram and the objection filed by the accused, persons the learned Sessions Judge, Sonbhadra allowed the application dated 21-1-2005 filed under Section 319 Cr. P. C. on 1-2-2005 and summoned the applicant and co-accused Sikandar to face the trial for the offences punishable under Section 498-A and 304-B I. P. C. and Section 3/4 Dowry Prohibition Act and non-bailable warrants were issued against them. It is contended by the learned Counsel for the applicant that the applicant was also named in the FIR alongwith other co- accused persons, but during the investigation the I. O. came to conclusion that he was falsely implicated, so no charge-sheet was submitted against him, but the charge-sheet was submitted against the five accused persons and the cognizance was taken against them and their case was committed to the Court of the Sessions, where the statements of P. W. 1 Kashi Ram and P. W. 2 Ganga Ram were recorded. On the basis of the statements of P. W. 1 Kashi Ram and P. W. 2 Ganga Ram also no offence punishable under Sections 498-A and 304-B I. P. C. and 3/4 Dowry Prohibition Act is made out because the applicant was having no concerned with the family of Matuk Lal, who was married with deceased Smt. Indrawati Devi, because Matuk Lal is Yadav by caste and the applicant does not belong to his caste. He is Kahar by caste. As such he is not having the blood relationship with the husband of the deceased. The applicant was falsely implicated in the present case because he was Pradhan of the village and due to ill will of the P. W. 1 Kashi Ram and P. W. 2 Ganga Ram.
(3.) IT is further contended by the learned Counsel for the applicant that even according to the provisions of the Section 319 Cr P. C. the applicant cannot be summoned to face the trial because the crucial wordings of the Section 319 Cr. P. C. is 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. " In the present case the applicant was accused. He was named in the FIR. , but subsequently the charge-sheet was not submitted against him by the I. O. According to the provisions of Section 319 Cr. P. C any person not being the accused has committed any offence may be summoned to face the trial. The applicant was an accused in the above- mentioned offences, so he cannot be summoned, because if the accusation is made against any person, in FIR during investigation of this case, be becomes accused, during investigation also the words accused is used for him as evident from the perusal of the Section 167 & 169 Cr. P. C. If against that person charge-sheet is not submitted and no cognizance is taken by the learned Magistrate, even then that person shall be called accused. So the summoning order dated 1-2-2005 passed by the learned Sessions Judge, Sonbhadra in Sessions Trial No. 184 of 2004 is illegal and is liable to be set aside. The submission made by the learned Counsel for the applicant is controverted by the learned A. G. A. by submitting that on the basis of the statements of P. W. 1 Kashi Ram and P. W. 2 Ganga Ram prima facie offences under Section 498-A and 304-B I. P. C. and Section 3/4 Dowry Prohibition Act are made out, because there is clear involvement of the applicant. There is specific allegation against the applicant that he took the active part in the commission of the murder of the deceased. The applicant was named in the FIR. , but no charge-sheet was submitted against the applicant and co-accused Sikandar by the I. O. The learned Magistrate has not taken any cognizance against the applicant, the cognizance was taken by the Magistrate only against the five accused persons, who were charge-sheeted. Though the cognizance was not taken against the applicant, so the applicant cannot be said to be accused for the purpose of provisions of Section 319 (1) Cr. PC, therefore, the applicant was rightly summoned by the learned Sessions Judge to face the trial for the aforesaid offence vide order dated 1-2-2005, so the impugned order dated 1-2-2005 does not suffer from any irregularity or illegality.;