- (1.) HEARD Sri Daya Shankar Mishra, learned counsel for the revisionist, Mr Abhay Raj Singh, learned counsel for the opposite party no. 2 and learned AGA for the State respondent and have gone through the material on record.
(2.) THIS criminal revision is directed against the impugned order dated 23.5.2014 passed by Special Judge (E.C.Act)/Addl. Sessions Judge, Allahabad in Sessions Trial No. 908 of 2001, arising out of Case Crime No. 376 of 1999, under Sections 147,148,149,307 IPC, P.S. Handia, District Allahabad whereby the revisionist has been summoned to face the trial in the aforesaid sections in exercise of power u/s 319 Cr. P. C.
(3.) INITIALLY an FIR vide Case Crime No. 376 of 1999, under Sections 147,148,149,307 IPC was lodged on 29.9.1999 at P.S. Handia, District Allahabad against the revisionist, his father, uncle and one Rajdhari by the opposite party no. 2, in which after investigation, charge sheet was submitted by the Investigating Officer against father and uncle of the revisionist along with two other accused persons on 23.2.2000. Thereafter, the case was committed to the court of Sessions and cognizance in the matter was taken. The trial court examined the informant as P.W. -1, who in his examination -in -chief, has specifically delineated the role of the revisionist herein in the occurrence. Thereafter, the prosecution moved an application (53 B) on 28.2.2005 under Section 319 of the Code of Criminal Procedure, 1973 (in short, ''Cr.P.C.') for summoning the revisionist herein as accused in the case. The said application was objected by the father of revisionist Hari Mohan by filing an objection application (63 -B) on 12.7.2007 before the Trial Court. However, the trial court vide order dated 29.8.2007 summoned the revisionist to face the trial for the aforesaid offences. Aggrieved by this order, revisionist preferred Criminal Revision No. 2831 of 2007, which was disposed off by this Court vide order dated 19.9.2007 with the observations extracted here under: - " Heard learned counsel for the revisionist and learned AGA. This Criminal revision has been preferred against the order dated 29.8.2007 passed by learned Special Judge (EC Act)/Addl. District Judge, Allahabad in S. T. No. 908 of 2001 summoning the revisionist under Section 310 Cr.P.C. It is contended by learned counsel for the revisionist that the trial court passed the impugned order only on the basis of examination in chief of P.W. -1 Indrajeet Tiwari. The examination in chief was not sufficient material to come to the conclusion that revisionist was actually involved in the commission of the alleged offence in the decision of Apex Court in the case of Mohd. Safi V Mohd Rafiq and another, 2007 (58) ACC 254, it has been held that only examination in chief is not sufficient for taking cognizance in exercise of powers conferred under Section 319 Cr.P.C. In reply of the above contention, it is submitted by the leaned AGA that prima facie evidence has come in the statement of P.W. -1 showing the involvement of the revisionist in the alleged offence. The impugned order is not suffering from any illegality. Considering the facts and circumstances of the case and the submission made by learned counsel for the parties and the view taken by Hon'ble Supreme Court in the aforesaid case of Mohd. Safi, the order passed by the trial court is illegal because it has been passed after considering the examination in chief of P.W -1 Indrajeet Tiwari. Therefore, the impugned order dated 29.8.2007 is hereby set aside. However, it shall be open to the prosecution to move a fresh application under Section 319 Cr.P.C. after some other evidence is adduced or P.W. -1 is cross examined. With these directions, this revision is finally disposed off. " Subsequent to the cross examination of P.W. -1 Indrajeet Tiwari (informant) and P.W. -2 Matayash, the prosecution moved an application (73 -B) u/s 319 Cr.P.C. on 1.4.2009 for summoning the accused revisionist. The said application was objected by the co -accused Hari Mohan (father of the revisionist) by filing an objection (74 -B) dated 6.5.2009 before the Trial Court. The Trial court rejected the application vide its order dated 8.5.2009.;