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#16 o/o 29.07 .2OLI'
Present: Mr.Sunil Kumar Bhatt, Advocate for the petitioner.
Mr. Pawan Narang, APP for the respondent/State.
+Crl.Rev.P. No.187/2O11 & Crl.M.A. No.4713l2Oll(stav)
The petitioner is aggrieved of the order of learned Additional
Sessions Judge dated 04.03.2011 pursuant to which the petitioner has been summoned as an accused to undergo trial along existing accused persons under Section 319 Cr.P.C. thus:
The impugned order is reproduced
"Since PW Sahana Praveen @ Munni who is said to be the wife of deceased has been examined and during examination she had disclosed that her deceased husband had left the house with one Ayub by saying that he will come back house within half an hour. Since deceased did not return back and Ayub is last seen in the present case.
Whereas neither the police have made him witness nor accused in the present case. Neither any application has been moved by Ld. APP for
State to proceed against Ayub.
On perusal of record, it is relevant that PW1 Nooruddin has disclosed the name of Ayub in his statement.
Further, on perusal of statement of PW1l Sl Ajay Kumar, it is also revealed that this witness had interrogated both Manjoor and Ayub but he had discharged both of them as he did not find out their involvement in the present case to which this court is not satisfied.
On perusal of record, this court is satisfied that there is sufficient material against Ayub to proceed against him. Accordingly, NBW is hereby issued against accused Ayub through DCP, North East Delhi.
Since matter is old and pertaining to year 2006. Hence in order to avoid further delay it is necessary that NBW be executed through
DCP, North East, Delhi in order to save the time.
NBW is returnable by 10.03,2011 for the date already fixed. "
.section 319(1) empowers the couft to proceed against any person not shown or mentioned as an accused in the chargesheet of the complaint if it appears from the evidence that such person has committed
2011:DHC:19843 an offence for which he could be tried together with the main accused against whom the trial is being held. This power is, however, ofl extraordinary power conferred on the court to do real justice and it should be exercised sparingly and with due caution and only if compelling reasons exist for proceeding against a person against whom the action has not been taken. lf the court, on consideration of the evidence, is convinced that the interest of justice demand that the person concerned ought to be tried together with the main accused, the order at least should reflect the relevant evidence on the basis of which the trial court has decided to exercise the power under Section 319 Cr.P.C.
In the instant case, above noted order of the learned Additional
Sessions Judge is vague and it does not disclose on what basis he came to the conclusion that the petitioner is involved in the crime under trial and he should be tried together with the main accused. The order is a non- speaking order. Therefore, it is against the principle of natural justice.
Accordingly, I accept the revision petition and set aside the impugned order dated 4th March, 20LL The matter is remanded back to the concerned Additional Sessions Judge who shall re-consider the issue relating to the summoning of the petitioner under Section 319 Cr.P.C. in the context of evidence available on record and pass appropriate speaking order.
Petition is disposed of accordingly.
(AJrT BHARTHOKE)
JUDGE
JULY 29,2OLLlpst
2011:DHC:19843
Present: Mr.Sunil Kumar Bhatt, Advocate for the petitioner.
Mr. Pawan Narang, APP for the respondent/State.
+Crl.Rev.P. No.187/2O11 & Crl.M.A. No.4713l2Oll(stav)
The petitioner is aggrieved of the order of learned Additional
Sessions Judge dated 04.03.2011 pursuant to which the petitioner has been summoned as an accused to undergo trial along existing accused persons under Section 319 Cr.P.C. thus:
The impugned order is reproduced
"Since PW Sahana Praveen @ Munni who is said to be the wife of deceased has been examined and during examination she had disclosed that her deceased husband had left the house with one Ayub by saying that he will come back house within half an hour. Since deceased did not return back and Ayub is last seen in the present case.
Whereas neither the police have made him witness nor accused in the present case. Neither any application has been moved by Ld. APP for
State to proceed against Ayub.
On perusal of record, it is relevant that PW1 Nooruddin has disclosed the name of Ayub in his statement.
Further, on perusal of statement of PW1l Sl Ajay Kumar, it is also revealed that this witness had interrogated both Manjoor and Ayub but he had discharged both of them as he did not find out their involvement in the present case to which this court is not satisfied.
On perusal of record, this court is satisfied that there is sufficient material against Ayub to proceed against him. Accordingly, NBW is hereby issued against accused Ayub through DCP, North East Delhi.
Since matter is old and pertaining to year 2006. Hence in order to avoid further delay it is necessary that NBW be executed through
DCP, North East, Delhi in order to save the time.
NBW is returnable by 10.03,2011 for the date already fixed. "
.section 319(1) empowers the couft to proceed against any person not shown or mentioned as an accused in the chargesheet of the complaint if it appears from the evidence that such person has committed
2011:DHC:19843 an offence for which he could be tried together with the main accused against whom the trial is being held. This power is, however, ofl extraordinary power conferred on the court to do real justice and it should be exercised sparingly and with due caution and only if compelling reasons exist for proceeding against a person against whom the action has not been taken. lf the court, on consideration of the evidence, is convinced that the interest of justice demand that the person concerned ought to be tried together with the main accused, the order at least should reflect the relevant evidence on the basis of which the trial court has decided to exercise the power under Section 319 Cr.P.C.
In the instant case, above noted order of the learned Additional
Sessions Judge is vague and it does not disclose on what basis he came to the conclusion that the petitioner is involved in the crime under trial and he should be tried together with the main accused. The order is a non- speaking order. Therefore, it is against the principle of natural justice.
Accordingly, I accept the revision petition and set aside the impugned order dated 4th March, 20LL The matter is remanded back to the concerned Additional Sessions Judge who shall re-consider the issue relating to the summoning of the petitioner under Section 319 Cr.P.C. in the context of evidence available on record and pass appropriate speaking order.
Petition is disposed of accordingly.
(AJrT BHARTHOKE)
JUDGE
JULY 29,2OLLlpst
2011:DHC:19843
JUDGMENT