Person Summoned U/S 319 CrPC Can't Avail Remedy Of Discharge U/S 227 CrPC: Allahabad High Court

Referring to top Court's judgement in the case of Jogendra Yadav Vs. State of Bihar (2015), a bench of Justice Rajesh Singh Chauhan opined thus:

“…an accused summoned under Section 319 CrPC is entitled to invoke the remedy under the law against an illegal and improper exercise of power under Section 319 CrPC, however, the same cannot have the effect of the order being undone by seeking a discharge under Section 227 CrPC”

The Court made this observation while dealing with an application filed by the petitioner under Section 482 CrPC to set aside an order of the Additional Session Judge, (P.O.C.S.O.-I), Ambedkar Nagar passed refusing to discharge him in a rape case.

It was the case of the petitioner that though he was neither named in the FIR nor the charge sheet, he was summoned under Section 319 CrPC on the application of the complainant and thereafter, when he moved a discharge plea, the same was rejected by the court of ASJ, Ambedkar Nagar.

It was contended that it was improper on the part of the Trial Court to allow application under Section 319 CrPC only for the reasons that during the investigation, the prosecutrix had recorded her statement under Section 164 CrPC wherein she had levelled allegations against the present applicant.

On the other hand, the Counsel for the state submitted that persons not mentioned in the First Information Report (FIR) or in the charge sheet, or those who have been discharged, could still be summoned under Section 319 of the Criminal Procedure Code (CrPC).

The counsel emphasized that there is no barrier to summoning a person under Section 319 of the CrPC solely based on the statement of the complainant under Section 164 of the CrPC.

Against this backdrop, the Court observed that if the trial Court finds it necessary during the trial that any person who was not named in the F.I.R. or was also not named in the charge sheet but there is some material/evidence to suggest that he/she is also responsible in committing such offence, he/she may be summoned under Section 319 CrPC.

The Court further noted that the exercise of power under Section 319 CrPC must be placed on a higher pedestal and therefore, even though a person summoned under this provision is entitled to invoke the remedy under the law against an illegal and improper exercise of power under Section 319 CrPC, but the same cannot have the effect of the order being undone by seeking a discharge under Section 227 CrPC.

In view of this, noting that the applicant had been summoned on the basis of the statement made by the complainant under section 164 CrPC, the Court disposed of the application at the admission stage giving liberty to the applicant/petitioner to appear before the Court on the date fixed to participate in the proceedings and to participate in the proceedings and shall not take unnecessary adjournments.

Appearances

Counsel for Applicant: Janardan Singh, Madan Gopal Tripathi

Counsel for Opposite Party: G.A., Vishva Nath Pratap Singh

Case title - Suresh Kumar Singh vs. State Of U.P. Thru. Addl. Chief Secy. Deptt. Of Home, Lko. And Another 2024 LiveLaw (AB) 79

Case citation: 2024 LiveLaw (AB) 79

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