Rajesh Dayal Khare, J. - (1.) HEARD learned Counsel for the applicant and learned A.G.A. for the State Respondent.
(2.) THE present 482, Code of Criminal Procedure application has been filed against the summoning order dated 6.7.2010 passed in criminal case No. 339 of 2009 (case crime No. 39 of 2009) under Section 452, 352, 504, 506 IPC by Additional Chief Judicial Magistrate III, Bareilly, whereby applicant has been summoned under Section 319, Code of Criminal Procedure to face trial under the charged sections. It is contended by the learned Counsel for the applicant that the though in the first information report the applicant was named but, after investigation, the Investigating agency found complicity of the applicant to be false and, therefore, exonerated him and submitted charge sheet against other accused person, as such, order impugned dated 6.7.2010 be set aside. In support of his contention learned Counsel for the applicant has relied upon judgment of Hon'ble Apex Court in the case of Sarabjit Singh and Anr. v. State of Punjab and Anr., reported in, (2010) 2 SCC 141, in which Hon'ble Apex Court has held that 'an order under Section 319, should not be passed only because first informant or one of the witnesses seeks to implicate other persons(s) - sufficient and cogent reasons are required to be assigned by court so as to satisfy ingredients of Section 319.' Learned Counsel for the applicant has also relied upon judgment of Hon'ble Apex Court in the case of Hardeep Singh v. State of Punjab and Ors. reported in, (2010) 2 SCC 355, in which Hon'ble Apex Court has held that 'power under Section 319 can be exercised only if the court is satisfied that the accused summoned in all likelihood would be convicted.' Leaned counsel for the applicant has further relied upon judgments in the case of Krishnappa v. State of Karnataka, reported in, L (2004) ACC 343 and in the case of Mohd. Shafi v. Mohad. Rafiq and Anr., reported in, LVIII (2007) ACC 254. Learned Counsel for the applicant has also relied upon the judgment of Hon'ble Apex Court reported in : 2009 (2) SCC 696 (Lal Suraj alias Suraj Singh Anr. v. State of Jharkhand), in support of his contention. Learned Counsel for the applicant has further relied upon a decision of Hon'ble Apex Court reported in, LXV (2009) ACC 971 (Ram Singh and Ors. v. Ram Niwas and Anr.), in which Hon'ble Apex Court has held that in the event, it appears from the evidence that any person, not being an accused, has committed any offence for which he could be tried together with the accused, the court may proceed against him for the offence which he appears to have committed. It has been further held that the provision of Section 319, Code of Criminal Procedure confers an extraordinary power upon a court to summon a person who, at the relevant time, was not being tried as an accused, subject, of course, to fulfilment of the condition that it appears to the court that he had committed an offence. A finding to that effect must be premised on the evidence that had been brought on record.
(3.) LEARNED A.G.A. has contended that complicity of the applicant came into light in the statement of P.W.1 Anita Devi in her examination -in -chief, therefore, the order impugned summoning the applicant in exercise of power under Section 319, Code of Criminal Procedure has rightly been passed and there is no illegality in the impugned order.;