- (1.) Leave granted.
(2.) A First Information Report was lodged against the appellant herein by one Rafiq on 10.11.2005 alleging commission of an offence u/s. 307/324 of the Indian Penal Code. In view of the death of the injured, the case was converted to one u/s. 302 of the Indian Penal Code. The police submitted a chargesheet only against one Karimullah @ Aarif. No chargesheet was submitted as against the appellant herein. After the matter was taken up for hearing before the learned Trial Judge, respondent No. 1 examined himself as P.W. 1. In his examination-in-chief, he alleged that the incident had taken place in his presence and the appellant had taken part in the incident. An application was filed for summoning the appellant herein u/s. 319 of the Code of Criminal Procedure only on the basis thereof. The learned Sessions Judge refused to accede to the said prayer stating :- "File is taken up. Statement has been perused in regard to the application u/s. 319 of the Code of Criminal Procedure. On perusal of the statement of the witness PW1 Rafiq, uptil now, witness s chief examination is only done. The witness had stated the incident has taken place in his presence and has further stated to reach the spot on hearing the noise. On going through statement given u/s. 161 of the Code of Criminal Procedure of the witness, it is found to be recorded in Paper No. 1 dated 10.11.2005 that he reached the spot after the incident as stated by this witness. And accused Karimullah is said to be the incident doer. Hence, the application is not acceptable at this stage. The application u/s. 319 of the Code of Criminal Procedure is being dismissed at this stage."
(3.) Respondent No. 1 filed an application before the High Court of Judicature at Allahabad u/s. 482 of the Code of Criminal Procedure against the said order and by reason of the impugned order, the same has been allowed. The appellant is, thus, before us.;