VINOD PRASAD, J. - (1.) A .C.J.M. Court No. 1, Muzaffarnagar has passed an illegal order on 16.7.2009 in Case No. 3351/9 of 2008 (Nazma Vs Nawab Arshad) under Sections 406, 506 I.P.C., P.S. Kotwali Nagar, District Muzaffar Nagar. It has rejected the prayer of the prosecution to summon Shabina under Section 319 Cr.P.C. for the reason that under Section 204 Cr.P.C. she was not summoned. A.C.J.M. has observed that if a person has not been summoned under Section 204 Cr.P.C. then, if his/her name appears in statement under Section 244 Cr.P.C., then the application under Section 319 Cr.P.C. is not maintainable in his/her respect.
(2.) I have heard learned counsel for the applicant and learned A.G.A. The opinion by A.C.J.M. Court No. 1, Muzaffarnagar is wholly illegal. If a person has not been summoned under Section 204 Cr.P.C. and his name subsequently appears in statement recorded by the Court under Section 244 Cr.P.C. then application under Section 319 Cr.P.C. is maintainable. The statement under Section 244 Cr.P.C. recorded by the Court is an "evidence". The Court can always rely on such a statement and, therefore, prosecution can always utilize the said statement under Section 244 Cr.P.C. to add any person as an accused to stand trial along with the already trying accused. Merely because Sabina, who was desired to be summoned by the prosecution under Section 319 Cr.P.C., was not summoned under Section 204 Cr.P.C. is no ground not to summon her under Section 319 Cr.P.C. and ask her to stand trial. It is only the merit of the statement under Section 244 Cr.P.C. which is relevant for utilizing power under Section 319 Cr.P.C.
(3.) PHRASEOLOGY of the said Section 319 Cr.P.C. clearly indicates that the power to summon any person as an accused to face the trial along with already trying accused clearly indicates that during trial if it appears from the evidence that any person not been an accused has committed any offence for which such person can be tried together with the accused, the Court may proceed against such person for the offence which he appears to have been committed. The word "evidence" as has been used in Section 319 Cr.P.C. means the statement recorded in the Court in accordance with the provisions of the Evidence Act. The statement under Section 244 Cr.P.C is one of such statement which is an "evidence" as it has been recorded by a Court during a trial.;