The main legal point established in the judgment is the careful consideration of the power to summon under Section 319 Cr.P.C. and the admissibility of the statement made under Section 164 Cr.P.C. as substantive evidence.

JUDGMENT :

1. Heard Mr. Madan Gopal Tripathi, learned counsel for the applicant, Mr. Anirudh Kumar Singh, learned A.G.A.-I appearing for the State and Mr. Vishva Nath Pratap Singh, learned counsel for the opposite party no.2.

2. The instant application under Section 482 Cr.P.C has been filed by the applicant to set aside the impugned order dated 12.04.2023 passed by Additional Session Judge, (P.O.C.S.O.-I), Ambedkar Nagar in Session Trial No.23 of 2020 under Section 363, 366 & 376 I.P.C. at Police Station-Ahirauli, District-Ambedkar Nagar.

3. Learned counsel for the applicant has contended that despite the fact that the applicant was not named in the F.I.R. nor in the charge-sheet though on the application of the complainant filed under Section 319 Cr.P.C. (Annexure No.19), the learned trial Court summoned the applicant vide order dated 20.08.2015.

4. Learned counsel for the applicant has informed the Court that challenging the order dated 20.08.2015, the applicant has filed a petition before this Court i.e. U/S 482/378/407 No.2023 of 2019 (Suresh Singh Vs. State of U.P. and Another) and this Court vide order dated 14.03.2019 granted liberty to the applicant therein to file a discharge application before the Court concerned. In compliance of the aforesaid order dated 14.03.2019, the applicant filed discharge application before the learned trial Court and that application was rejected by the learned trial Court vide impugned order dated 12.04.2023.

5. Learned counsel for the applicant further submitted that in the meantime, the applicant appeared before the learned trial Court and he has been enlarged on bail.

6. Learned counsel for the applicant has contended that by means of impugned order dated 12.04.2023, the learned trial Court has observed that in view of the dictum of the Hon'ble Apex Court in re: Jogender Yadav Vs. State of Bihar & Ors., reported in 2015 ALL-MR (Cri).3707 (SC), the application for discharge under Section 227 Cr.P.C. is not maintainable, therefore, the same has been rejected.

7. Learned counsel for the applicant has referred the dictum of the Hon'ble Apex Court in re: Hardeep Singh Vs. State of Punjab & Others, (2014) 3 SCC 92 to submit that the power to summon under Section 319 Cr.P.C should be invoked by the trial Court sparingly in as much as exercise of power under Section 319 Cr.P.C is placed on higher pedestal. He has further submitted that if there being no cogent material/evidence is available on record against the person, he/she should not be summoned under Section 319 Cr.P.C.

8. Learned counsel for the applicant has also placed reliance upon the judgment and order dated 16.1.2019 passed by the Division Bench of this Court in Misc. Bench No.28660 of 2018 (Haider Ali Vs. State of U.P. and other), whereby, the Division Bench of this Court has followed the various dictum of the Hon'ble Apex Court as well as of the Privy Council. The Division Bench has referred the judgement in re: Bhuboni Sahu Vs. King, AIR 1949 PC: (1949) Cri LJ 872, wherein, the Privy Council has held that the statement made under Section 164 Cr.P.C. can never be used as substantive evidence of the fact stated but it can be used to support or challenge evidence given in Court by the person who made his statement.

9. Therefore, in view of the aforesaid judgement, the learned counsel for the applicant has stated that the application under Section 319 Cr.P.C was allowed only for the reasons that during the course of investigation, the prosecutrix had recorded her statement under Section 164 Cr.P.C. wherein she had levelled allegations against the present applicant. So, on the basis of such statement of the prosecutrix, the application under Section 319 Cr.P.C. should not have been allowed at that stage of the trial.

10. Per contra, Mr. Anirudh Kumar Singh, learned A.G.A.-I has submitted that the law relating to Section 319 Cr.P.C. has been developed by the Hon'ble Apex Court firstly, in Hardeep Singh (supra) and later on in re: Yashodhan Sing