- (1.) AMAR Saran, J. This criminal revision has been filed by the accused against the order dated 10-7-2002 passed by the IIIrd Additional Sessions Judge, Mathura, rejecting the application for summoning Govinda in proceedings under Section 319 Cr. P. C. in S. T. No. 108 of 1996, State v. Bunti and Ors. , under Section 302 IPC, P. S. Kotwali, district Mathura.
(2.) COUNTER-affidavit has been filed by the informant, opposite party No. 2. which was served on the applicant's Counsel on 22-10-2002, but no rejoinder affidavit has been filed. I have heard Sri S. V. Goswami, learned Counsel for the applicant Bunti and learned A. G. A and Sri Nikhil Chaturvedi, learned Counsel for the opposite party No. 2 Atal Ram Chaturvedi. Perusal of the impugned order dated 10-7-2002 shows that the Trial Court had rejected the application of the accused Bunti under Section 319 Cr. P. C. for summoning Govinda in exercise of power under Section 319 Cr. P. C. on the ground that P. W. 1 and P. W. 2 did not depose about the involvement of Govinda in the offence and he did not find sufficient evidence to summon Govinda under Section 319 Cr. P. C.
(3.) APPARENTLY there is no illegality in this order. It was argued by Sri Goswami that the informant had mentioned the name of Govinda as one of the assailants in the F. I. R. and deceased Anand Pal had himself disclosed to the informant that Govinda also was one of the assailants, hence the statement stood on the footing of the dying declaration, Govinda's name came in 161 Cr. P. C. of Harihar Prasad and Radha Kant alias Gopal and hence there was sufficient evidence against Govinda under Sections 32 and 6 of the Evidence Act. Learned Counsel for the informant has contended that the version in the FIR is based on hearsay and if on account of some confusion, the name of Govinda was mentioned, that was not sufficient ground for showing his complicity in the offence. He has annexed the statements of Harihar Prasad P. W. 1 and Radha Kant alias Gopal alias Lalu P. W. 2 with his counter-affidavit, the specific role of firing on stomach of the deceased was assigned to Pintu. He denied his statement to the I. O. , that Govinda had fired at the deceased, but he said that Pintu had fired on the deceased. Similarly Harihar Prasad P. W. 1 had also deposed that according to the disclosure made by the deceased to his brother informant Atal Ram Chaturvedi, it was Pintu's shot, which struck him. It is further noteworthy that the informant was not an eye-witness. In these circumstances, I find no error in law, if the learned trial Judge has no sufficient evidence to summon the applicant in exercise of power under Section 319 Cr. P. C. Learned Counsel for the informant has further drawn my attention to the decision of the Single Judge in Gyanendra Singh v. Stale of U. P. and Ors. , 2005 (51) ACC 550, where it is mentioned that co-accused has no locus standi to contest the application under Section 319 Cr. P. C. Learned Counsel for the applicant has, however, placed reliance on the case of Lok Ram v. Nihal Singh and Anr. , reported in 2006 (2) JIC 408 (SC) : 2006 AIR SCW 2129. No doubt, there is a line in paragraph 12 that power under Section 319 of the Code can be exercised by the Court suo motu or on an application by some one including an accused already before it. However, in same law report it is clearly mentioned that the power under Section 319 Cr. P. C. is to be used sparingly only if there are compelling reasons to take action against the persons who have not been summoned earlier. This law report also mentions that a person can be made an accused only on the basis of the evidence adduced before it and not on the basis of materials available in the charge-sheet or the case-diary because such material contained in the charge-sheet or the case- diary do not constitute evidence. This passage gives a complete answer to the submission of the learned Counsel for the applicant that statement under Section 161 Cr. P. C. of Harihar Prasad and Radha Kant, who ought to have been read for summoning Govinda.;