VIJAY KUMAR VERMA, J. - (1.) CAN a person summoned pursuant to an order passed by a Court in exercise of power conferred by Section 319 of the Code of Criminal Procedure, 1973 (Cr.P.C. for short) be tried for the offence for which he is summoned after the conclusion of the trial wherein such an order of summoning was passed, is also a question that falls for determination in this revision, which has been preferred against the order dated 5.2.2004 passed by 1st Additional Sessions Judge, Chitrakoot in ST. No. 263 of 2000 (State v. Jagdish) under Section 302, I.PC., whereby the revisionists and one other person Rahmat Ullah Khan have been summoned to face trial together with the charge-sheeted accused-Jagdish.
(2.) THE facts leading to the filing of this revision, in brief, are that murder of S. P. Bezeleel was committed in the intervening night of 1/2.5.1998 in a house situated in Mission Compound Karwi, District Chitrakoot. First Information Report was lodged on 2.5.1998 at 7.45 a.m. by his son Noel Bezeleel at P.S. Karwi, where a case under Section 302I.PC. was registered at crime No. 163/98 against (1) Jagdish Prasad; (2) Anna Mary Grothe; (3) Miss Aase Jorgensen and (4) Rahmat Ulla Khan. After investigation, charge-sheet was submitted against Jagdish only. On the case being committed to the Court of Session, ST. No. 263 of 2000 was registered against the accused Jagdish, who was charged under Section 302, I.PC. After recording the statement of P.W. 1 Noel Bezeleel, the public prosecutor moved an application under Section 319, Cr.P.C. to summon Anna Mary Grothe, Aase Jorgensen and Rahmat Ullah Khan to face trial together with the accused Jagdish. That application has been allowed by the Court below vide impugned order and the revisionists as well as Rahmat Ullah Khan have been summoned to face trial under Section 302, I.P.C. in case crime No. 163 of 1998, P.S. Karwi together with accused Jagdish. Hence, this revision. Although counter affidavit of the complainant Noel Bezeleel has been filed, but his Counsel was not present on the date of hearing. Hence, arguments of Sri Pradeep Kumar, learned Counsel for the revisionists and learned A.G.A. representing the State have only been heard.
(3.) AT the outset, it was contended by learned Counsel for the revisionists that the impugned order has become ineffective and inoperative, because the trial of charge-sheeted accused Jagdish has already been concluded vide judgment dated 22.7.2004 and since, ST. No. 263 of 2000 is not pending, hence, trial of the revisionists cannot be made now. The contention of the learned Counsel for the revisionists was that the persons, who have been summoned to face trial under the provisions of Section 319, Cr.P.C. can be tried only if the trial of the charge-sheeted accused is pending and if the trial of the charge-sheeted accused is concluded, the persons summoned pursuant to an order passed by the Court in exercise of the power conferred by Section 319, Cr.P.C. cannot be tried. I am not impressed with this argument. It is true that the charge-sheeted accused Jagdish has been acquitted vide judgment dated 22.7.2004 (Annexure SA-I to the supplementary affidavit dated 19.11.2007), but in my considered view, on this ground, the impugned order has not become ineffective or inoperative. While admitting this revision on 24.2.2004, this Court had stayed the operation of the impugned order dated 5.2.2004 and therefore, in view of the stay order granted by this Court, the trial of the revisionists in ST. No. 263 of 2000 was not possible. The impugned order, when passed cannot be said to be without jurisdiction, since at that stage, the trial against charge sheeted accused Jagdish was pending and the revisionists, who were summoned vide impugned order could be tried together with him. Therefore, if during the pendency of this revision, the trial of Jagdish has concluded, the impugned order dated 5.2.2004 would not become ineffective and inoperative. Section 319, Cr.P.C. reads as under: "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) Where such person is not attending the Court, he may be arrested of 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 £ 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 upon which the inquiry or trial was commenced." ;