Rajesh Dayal Khare, J. - (1.) HEARD learned Counsel for the applicants 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 26.3.2011 passed in S.T. No. 628 of 2009 under Section 323, 504, 506, 452, 427, 323 IPC by Additional Sessions Judge, court No. 7, Saharanpur, whereby applicants have 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 applicants that though the applicants were name din the first information report but after investigation, the Investigating agency found complicity of the applicants to be false and, therefore, exonerated them and submitted charge sheet against other accused persons, as such, order impugned dated 26.3.2011 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.' Learned 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 2007ACC 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 fulfillment 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 Tahir and P.W. 2 Km. Nazma in their examination -in -chief, therefore, the order impugned summoning the applicants in exercise of power under Section 319, Code of Criminal Procedure has rightly been passed and there is no illegality in the impugned order.;