V.K. Mathur, J. - (1.) THE instant criminal revision has been preferred by the revisionist against the impugned order dated 2.2.2010 passed by the Additional Sessions Judge, Court No. 8, Budaun in Sessions Trial No. 657 of 2009 wherein the revisionist has been summoned as an accused under Section 319, Cr.P.C.
(2.) THE brief facts giving rise to the instant criminal revision are that initially a F.I.R. under Section 147, 148, 149, 307, IPC was lodged by informant Virendra stating that his brother was assaulted by Chhuttan @ Yadvendra (revisionist) armed with rifle, Nand Kishore armed with country made gun, Ram Bhajan armed with Tamancha and Netram wielding a danda. It has also been alleged that the accused persons opened fire with Tamancha and rifle which hit in the forehead of informant's brother. Subsequently, the informant's brother died, therefore, the case was converted into a case under Section 302, IPC. It appears that the revisionist was not charge sheeted while others were charge sheeted. When the trial commenced, examination in chief of PW -1 informant Virendra was recorded on 21.1.2010 and an application under Section 319, Cr.P.C. was moved by the prosecution during the examination -in -chief to summon the revisionist as an accused. The learned Additional Sessions Judge vide impugned order allowed the application and summoned the revisionist as an accused. Aggrieved from the order, the instant revision has been preferred on the ground that the revisionist has wrongly been summoned under Section 319, Cr.P.C. to face trial under Section 302, IPC by the trial court. Though the revisionist was named as an accused in the FIR, he was not charge sheeted. Even the learned Magistrate while taking cognizance did not find sufficient evidence to summon him as an accused. It has also been contended that during the trial on the basis of examination -in -chief alone, that too of only one witness PW -1, the trial court has ordered to summon the revisionist under Section 319, Cr.P.C. which is bad in law. The statement of the witness cannot be considered to be completed unless it undergoes cross examination, therefore, the impugned order is not legal and sustainable and has been passed arbitrarily and without being satisfied of the existence of sufficient evidence whereby the revisionist can be convicted.
(3.) LEARNED counsel for the revisionist has relied upon the judgment of Mohd. Shafi Vs. Mohd. Rafiq,, 2007 (58) ACC 254 (SC) .;