S.S.Kulshrestha, J. - (1.) Heard the learned Counsel for the applicant and the learned A.G.A. and also perused the materials on record.
(2.) This application under section 482 of the Code of Criminal Procedure (in short 'the Code') has been brought for quashing the order dated 26th November, 1998 passed by the learned Additional Sessions Judge Court No. 27 in S.T. No. 251 of 1998 State v. Rajive Nain Singh and others whereby issuing summons also against the applicant as an accused in Case Crime No. 27 of 1995 and also separating his case from the main trial (S.T. No. 251 of 1998). It is said that summons were issued against the applicant in exercise of the powers under section 193 of the Code relying on the decision given by the Apex Court in the cases of Kishun Singh and others v. State of Bihar, 1993 (30) ACC 167 (SC). It is said that the learned Additional Sessions Judge misconstrued the principle of law laid down by the Apex Court in the case of Kishun Singh (supra) and further under section 193 of the Code there is inhibition for not taking the cognizance of the offence unless the case is committed to the Court of Sessions. In this regard, it shall be useful to refer that section 193 of the Code makes specific inhibition for not taking the cognizance of the offence against one or other person. If the case is not committed to the Court of Sessions. Further in the case of Kishun Singh (supra) it was canvassed by the Apex Court under section 319 of the Code makes the arrangement that whether in the course of trial, if any evidence comes against any person, he shall also be tried. The Court may issue summons to the person concerned along with the other persons, who are facing trial. That provision under section 319 of the Code is also in consonance with section 193 of the Code. The Apex Court has also interpreted the scope of section 319 of the Code but it has also laid down that where no evidence was laid at the trial, the learned Session Judge was not justified in invoking the provisions of section 319 of the Code merely on the basis of the documents collected during the investigation. Identical is the position in the present case. The learned Additional Session Judge did not proceed to record any statement of the witness but merely on the documents issued processes against Sri Mohd. Saghir Khan. The order is not legally sustainable. Further it may be mentioned that Sri Mohd. Saghir Khan is cited as the principal witness (S.T. No. 251 of 1997) and one cannot be compelled to appear as witness against himself. In view of the aforesaid discussion, the impugned order is not sustainable. In the result the order dated 26th November, 1998 passed by the learned Additional Session Judge, Court No. 27 in S.T. No. 251 of 1998 State of U.P. v. Rajive Nain Singli and others is hereby quashed and the application is allowed. Application allowed.;