- (1.) Leave granted.
(2.) This appeal is directed against the order dated 28th October, 2009 passed by the High Court of Judicature at Allahabad in Criminal Miscellaneous Application No. 22823 of 2009 whereby the order dated 3rd August, 2009 passed by learned Additional Sessions Judge, Fast Track Court No. 2, Mathura, rejecting the application moved by the complainant/respondent No. 2 herein under Section 319 of the Code of Criminal Procedure, 1973 in Sessions Trial No. 420 of 2007 was set aside and the trial court was directed to summon the accused/appellants herein.
(3.) The complainant/respondent No. 2 herein (Deepak) lodged an FIR naming seven persons as accused regarding the occurrence which took place on 7th February, 2003 at 10.30 p.m. stating that the accused persons named in the FIR armed with lathi, danda and hockey caused injuries to his uncle Kamta Prasad as well as to the complainant. The complainant was medically examined on 8th February, 2003 and a lacerated wound of 4 cm x 0.8 cm scalp deep on left side back of his skull was reported by the doctor. Kamta Prasad succumbed to his injuries alleged to have been caused by the accused. The accused were named in the FIR vide Case Crime No. 44/03 under Sections 147, 323, 504, 506, 304 of the Indian Penal Code (in short, "I.P.C."). The injured complainant as well as other witnesses were examined by the Investigating Officer (I.O.), but the I.O. submitted charge-sheet only against five accused leaving the names of two accused who are appellants before us. After committal of the case for trial, the trial court in S.T. No. 420 of 2007 examined the complainant as PW-1. In his examinationin-chief, the complainant specifically stated the role of the appellants herein in the occurrence. The complainant then moved an application under Section 319 of the Code of Criminal Procedure, 1973 (in short, 'Cr.P.C.') for summoning the appellants herein as accused in the case. However, the trial court vide order dated 25th July, 2008 disposed of the application in view of the fact that cross-examination of PW-1 had not completed and the fact had not been cleared from the witness that there existed probability of the conviction of the appellants herein. On a Criminal Miscellaneous Application being filed under Section 482 of Cr.P.C. before the High Court of Judicature at Allahabad against the above order, the High Court vide judgment and order dated 3rd September, 2008 found no error in the order passed by trial court as the trial court had till then not finally decided the question of summoning the appellants and had simply postponed the issue as it thought that the matter should receive its due and proper consideration only after the crossexamination of the witness is over. Subsequently, PW-2 Vivek and PW-3 Deepak Kumar Dubey were also examined apart from the complainant. The second application filed under Section 319, Cr.P.C. was also rejected by the trial court vide order dated 3rd August, 2009 after considering various legal pronouncements, discussing the statements of PW-1, PW-2 and PW-3 and finding out that the evidence on record is improper and contradictory. Challenging this order, the complainant again filed a Criminal Miscellaneous Application under Section 482, Cr.P.C. which was allowed by the High Court vide order dated 28th October, 2009 impugned herein holding that the lower court committed error in rejecting the application of the complainant/respondent No.2 for summoning the accused-appellants herein despite the prima facie evidence adduced by the prosecution disclosing their involvement in the alleged occurrence for which the other accused are facing the trial on the same facts of the case. The High Court by the impugned order directed the lower court to summon the accusedappellants herein as per provisions under Section 319, Cr.P.C.;