SARFRAZ Vs. STATE NCT OF DELHI
LAWS(DLH)-2009-5-104
HIGH COURT OF DELHI
Decided on May 08,2009

SARFRAZ Appellant
VERSUS
STATE (NATIONAL CAPITAL TERRITORY OF DELHI) Respondents


Referred Judgements :-

AMARJIT SINGH ALIAS AMBA V. STATE OF PUNJAB [REFERRED TO]
SOHAN LAL VS. STATE OF RAJASTHAN [REFERRED TO]
SARASWATIBEN D/O MANILAL MAVSANG VS. THAKORLAL HIMATLAL [REFERRED TO]


JUDGEMENT

- (1.)THE petitioner is aggrieved by an order passed by the Additional session Judge dated 6th February, 2007 whereby, the application moved by the complainant i. e. the present petitioner, requesting the Sessions Judge to take cognizance of the offence of murder of his father against Yusuf, Ashfaq, imran, Ms. Afsari and Ms. Salma who had been discharged by the Sessions court vide its earlier order dated 7th February, 2001 on the ground that evidence which came up for consideration in terms of the report under section 173 Crpc does not make out a case against them. The said order which was passed by the Additional Sessions Judge on 7th February, 2001 was assailed by the present petitioner by filing a Revision petition before this court registered as Criminal Revision Petition No. 109/2001 and the said revision petition was disposed of by Honble Mr. Justice R. S. Sodhi as his lordship then was by passing the following order:
"with the assistance of counsel for the petitioner as also counsel for the State, who is not aggrieved by the order under challenge, I have gone through the judgment under challenge, I find that the learned Additional Sessions Judge has discharged the females on the ground that there is no material giving rise to such grave suspicion as to warrant a charge. Merely because one witness may have named them is not incumbent to frame a charge. The court is required to consider the entire material and if grave suspicion arises will go on to frame charge. In that view of the matter, I find no infirmity, perversity, impropriety, illegality or jurisdictional error in the order under challenge. It is needless to point out that in the event during trial there is evidence on record to show that some more persons have committed the offence, surely they can be summoned under Section 319 Cr. P. C. "

(2.)IT is the case of the petitioner that in terms of the aforesaid directions, he moved an application before the trial judge which has been dismissed by the impugned order dated 06. 02. 2007. The relevant portion of the order which is subject matter of the present revision petition is as under:
"it is submitted by Ld. Counsel for applicant that from the statements of latter who was examined as PW1, Mohd. Akil (PW2), Smt. Rahisa (PW6), Mohd. Shokeen (Pw7) and maulana Mohd. Alam (Pw9) it is clear that the persons sought to be summoned as accused in this case were also involved in the commission of the crime. It is further the plea of ld. Counsel that from the statement of Pws mentioned above, it has become apparent that accused mustakeen Khan knew that deceased was suffering with heart ailment and knowing that, same caused injuries on the person of latter which was sufficient to cause his death. Ld. Counsel requested to amend the charge and try accused Mustakeen for offence of murder of deceased Wali mohd. Application is opposed by Ld. Counsel appearing on behalf of accused persons stating that same will unnecessarily prolong the trial of the case and an early disposal of a case is a fundamental right of accused persons. Ld. Counsel also referred a case titlted as Sohan lal Vs. State of Rajasthan AIR 1990 supreme Court 2158 alleging that the accused persons once discharged in a case cannot be summoned again to face trial in view of section 319 Cr. PC. Section 319 Cr. PC empowers a trial court to proceed against a person/persons for the offence which he/they appear to have committed, where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any such person not being an accused has committed any offence for which the same could be tried together with the accused. Ld. Counsel reminded me about an order of our own high Court dated 17. 5. 04 in this very case filed by present applicant it was observed by the High Court that " it is needless to point out that in the event during trial there is evidence on record to show that some more persons have committed the offence, surely, they can be summoned U/s 319 Crpc". Contending that from the statements of material witnesses referred above, there is clear evidence against the persons who have already been discharged in this case to implicate in offence in question. Though, it is not a stage to evaluate the evidence meticulously as same may amount giving finding before evidence is concluded, I think it necessary to peek into the evidence on record to come into conclusion as to whether there is sufficient evidence against persons mentioned above to summon them as accused in this case, in view of section 319 Cr. PC. "

(3.)THE petitioner submits that this order of the learned Additional sessions Judge is not tenable in view of the order of this Court whereby directions were given to consider the question of summoning other persons named in the application based upon the evidence which has come on record. It is also submitted that once during evidence anything comes on record as disclosed by the petitioner in his application, it was incumbent upon the Additional Sessions Judge to have acted under Section 319 Cr. P. C. and summon the accused person name in the application.


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