- (1.) SAROJ Bala, J. This criminal revision is directed against the order dated 2. 11. 2002 passed by the IIIrd Additional and Sessions Judge, Court No. 3 Aligarh in Session Trial No. 1306 of 1999, State v. Kallu and others, whereby allowing an application moved by the prosecution under section 319 of Code of Criminal Procedure (hereinafter referred to as the Code) and summoning the revisionist and one Nahar Singh for facing trial.
(2.) THE background facts are as below : On 28. 3. 1999 at about 4. 30 p. m. revisionist armed with a licensed gun along with co-accused armed with firearms mounted assault by opening fire at the first informant and his father. THE father of the first informant sustained gun shot injuries and died at the spot. THE first informant had a narrow escape. THE First Information Report, was alleged against the revisionist and co-accused. After investigation the revisionist and co-accused Nahar Singh were not charge-sheeted though role of firing from licensed guns was assigned to both of them. THE charge-sheeted co-accused were committed to the Court of Sessions. After framing of charges their trial commenced in S. T. No. 1306 of 1999, State v. Kallu and others, under sections 147, 148, 307, 302, I. P. C. THE eye-witnesses Vinod Kumar (P. W. 1) and Ram Naresh (P. W. 2) in their examination-in-chief supported the manner of incident as narrated in the First Information Report. THE application (29 Kha) was moved by the prosecution for summoning the revisionist and co-accused Nahar Singh for facing trial alongwith co-accused. THE Trial Judge allowed the said application by the impugned order. THE impugned order has been assailed on the grounds that the Court below acted illegally and with material irregularity in exercise of its jurisdiction resulting in miscarriage of justice. THEre is no evidence against the revisionist with regard to his complicity in the murder of first informant's father. THE revisionist was not present at the place of the incident on the date and time of commission of offence. THE Court below has ignored the certificate of Smt. Ram Sakhi Katheriya about presence of revisionist at Narendra Dev Junior High School alongwith local M. L. A. and other supporters of B. J. P. Heard Shri B. B. Paul, learned Counsel for the revisionist, learned A. G. A. and have perused the record. The learned Counsel for the revisionist placing reliance on decision in Mohd. Shafi v. Mohd. Rafiq and another, 2007 (58) ACC 254 (SC) = 2007 (53) AIC 56 (SC ). argued that, the discretion for summoning the accused at the stage of trial is to be exercised sparingly. It was urged that the Court must arrive at its satisfaction before exercising the discretion in favour of the prosecution and such satisfaction can be reached on completion of cross-examination of the witnesses.
(3.) THE learned A. G. A. argued that the revisionist was named in the First Information Report and the witnesses in their examination-in-chief as well as in the statement under section 161, Cr. P. C. assigned the overt act of firing from licensed gun to the revisionist and co-accused Nahar Singh. The power under section 319 of Code can be invoked in appropriate situation. This section is extracted below : " 319. Power to proceed against other persons appearing to be guilty of offence :- (1) Where in the course of any inquiry into or trial of an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed. (2) Where such person is not attending the Court he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid. (3) Any person attending the Court although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of the offence which he appears to have committed. (4) Where the Court proceeds against any person under sub-section (1) then- (a) the proceedings in respect of such person shall be commenced afresh, and the witnesses re-heard. (b) subject to the provisions of clause (a), the case may proceed, as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced. ";