- (1.) UMESHWAR Pandey, J. Heard the learned counsel for the revisionist and the learned A. G. A.
(2.) BY the impugned order dated 26-7-2002, the Court below has summoned the applicant-revisionist as an accused in Sessions Trial No. 352 of 2002 on the basis of the statement of P. W. 5-Lakhan and P. W. 6 Veer Pal. It is contended by the learned counsel for the revisionist that these witnesses are not named in the F. I. R. The witnesses, who are named, were Ilyas and Hamid. They have been examined before the Court and have been declared hostile. The evidence recorded under Section 161 Cr. P. C. against the present applicant-revisionist was not found sufficient to submit the charge sheet against him and, as such, he was not challaned by the Police. The worth of the evidence given by Veer Pal and Lakhan is quite minimal. There is hardly any possibility of the case to end into the conviction on the basis of the evidence given by the witnesses as against the applicant. These witnesses have also given out that the applicant-revisionist-Ashok Kumar Sharma, while the incident was taking place, was standing at a distance without taking any active role in the assault against the deceased. I have seen the evidence of the aforesaid two witnesses-PW 5 and PW 6 and have considered the material available on the record. As submitted by the learned counsel, there is hardly any scope for the present applicant being punished who was simply named by the aforesaid two witnesses without assigning to him any role in the said incident.
(3.) A Court, though, is empowered to summon a person to face the trial while he has not been challaned by the policy yet the empowerment under Section 3 19 Cr. P. C. is just a discretion, which has to be exercised only to achieve criminal justice. It is not expected of the Court to turn against another person whenever it comes to across evidence connecting that other person also with the offence. A judicial exercise of discretion is meant for the purposes of facilitating dispensation of actual justice and the exercise of such discretion, as given under Section 319 Cr. P. C. has been interpreted not to be a compelling duty on the Court to proceed against a person, who has not been charge sheeted by the police. In the case of Michael Machado and another v. Central Bureau of Investigation and another, 2000 (2) JIC 5 (SC) : 2000 S. C. C. (Cri) 609 para-12, of the judgment is quite relevant for its reproduction here: "but even then, what is conferred on the Court is only a discretion as could be discerned from the words ``the Court may proceed against such person. '' The discretionary power so conferred should be exercised only to achieve criminal justice. It is not that the Court should turn against another person whenever it comes across evidence connecting that other person also with the offence. A judicial exercise is called for, keeping a conspectus of the case, including the stage at which the trial has proceeded already and the quantum of evidence collected till then, and also the amount of time which the Court had spent for collecting such evidence. It must be remembered that there is no compelling duty on the Court to proceed against other persons. " In the case of Municipal Corporation of Delhi v. Ram Kishan Rohtagi, (1983) 1 S. C. C. 1, the Apex Court has further held as below: "but, we would hasten to add that this is really an extra-ordinary power which is conferred on the Court and should be used very sparingly and only if compelling reasons exist for taking cognizance against the other person against whom action has not been taken. ";