H.N.Kapoor - (1.) THIS petition has been filed for quashing the order dated 13-9-1979 of the Chief Judicial Magistrate, Azamgarh summoning the applicant Dudhnath Lal under section 319 CrPC for the purpose of committing him to the court of session in a case under sections 147/148/307/149 and 302 IPC. The applicant had filed a revision (Cr. Revision No. 141 of 1979) against that order. But that was dismissed by the Fourth Addl. Sessions Judge, Azamgarh.
(2.) THE facts of the case are that the police had submitted a final report against the applicant and Vishwanath Misra. In this case Dudhnath Lal was said to have used the licensed gun of his son. But that gun was sent to the ballistic expert along with the empty cartridge recovered from the place of occurrence for comparison and it was found that that; shot had not been fired from that very gun. THE police, therefore, submitted a final report against Dudhnath Lal applicant while submitting charge-sheet against some other persons named in the first information report, Both the lower courts have placed reliance on the case of Jogendra Singh v. State of Punjab, AIR 1979 SC 339 for summoning the applicant under section 319 CrPC. That case was obviously distinguishable as the suspect in that case was summoned by the Sessions Judge during the course of the trial after he had considered some evidence which was on the record. It clearly shows that the evidence of Mohindra Singh and Ajaib Singh had been recorded and they had implicated Jogendra Singh and Ram Singh in the incident. It was on the baste of that evidence that Jogendra Singh and flam Singh had been summoned. In the present case no evidence at all has yet been recorded. The learned Magistrate summoned the applicant obviously on the basis of the case diary alone. In my opinion, he could not have summoned the applicant under section 319 CrPC in the absence of amy evidence. Now a Division Bench of this Court has held that the Magistrate could not have taken cognizance under Sec. 190 (c) CrPC on the basis; of the knowledge received by him through police papers or the case diary (See the case of Chandra Shekkar v. State, 1978 ACrR 455. The orders passed by the learned Magistrate and the revisional court were clearly illegal. It would amount to abuse of the process of the Court if the trial of the applicant was allowed to proceed on the basis of such illegal orders. Unfortunately Vishwanath Misra has not joined in filing this petition. But the ends of justice demand that be too should be benefitted by the order passed by this Court.
(3.) IN the result the petition is allowed. The order dated 13-9-1979 passed by the learned Magistrate summoning Dudhnath Lal and Vishwanath Misra and the order dated 19-11-1979 passed by the Fourth Addl. Sessions Judge, Azamgarh confirming the order of the learned Magistrate are quashed. The learned Magistrate is directed to expedite the commitment proceedings. It is made clear that this order shall not be treated as a bar in summoning Dudhnath Lal and Vishwanath Misra under section 319 CrPC again during the trial according to law. Petition allowed.;