- (1.) POONAM Srivastava, J. Heard Sri P. P. Srivastava, learned Senior Advocate assisted by Sri Rajul Bhargava, Advocate for the applicant, Sri Tapan Ghosh, learned Senior Advocate assisted by Sri Anup Ghosh, Advocate, for the opposite party No. 2 and learned A. G. A. for the State.
(2.) THE instant application under Section 482, Cr. P. C. is preferred challenging the order dated 14-8-2007 under Section 319 Cr. P. C. passed by the Sessions Judge, Aligarh, in Session Trial No. 360 of 2006, State of U. P. v. Purshottam and Ors. , under Sections 302, 504, 506, I. P. C. , P. S. Sasani Gate, District Aligarh. First Information Report was registered at the concerned police station on 29-10-2005 regarding an occurrence which took place at 6. 00 p. m. on the same day. The opposite party No. 2 alongwith her husband while returning from her old house on motor-cycle were way laid by the named accused Purshottam, Niraj, Amit Kumar @ Ashu, Chandra Shekher and Amit. Firing was resorted to by three accused but role of firing was not assigned to the present applicant and his son Amit. Police completed investigation and charge-sheet was submitted against accused Niraj, Amit @ Ashu and Purshottam. After submission of charge- sheet against three accused and final report against the present applicant, notice was issued to the opposite party No. 2. It is stated in paragraph No. 5 of the affidavit filed in support of the application and also admitted by the Counsel for the opposite party No. 2 that no protest petition was filed. Finally, trial proceeded and statement of Smt. Sharda Gupta was recorded in the Court. After completion of examination-in-chief of P. W. 1, an application was moved at the instance of the opposite party No. 2 under Section 319, Cr. P. C. for summoning the applicant and his son to face the trial with the other co-accused. The trial Judge invited objection, which was submitted on behalf of the applicant and the other accused (his son ). Thereafter, impugned order dated 14-8-2007 was passed calling upon the applicant and his son to face the trial exercising power under Section 319, Cr. P. C, which is impugned in the instant application. Submission on behalf of the applicant is that since P. W. 1 Smt. Sharda Gupta was not subjected to cross-examination, therefore, her evidence was not yet completed and she could not be summoned only on the basis of her statement in chief which was only a repetition of the F. I. R. Counsel for the applicant has placed reliance on the latest decision of the Apex Court in the case of Mohd. Shafi v. Mohd. Rafiq and Anr. , 2007 (2) JIC 490 (SC) : 2007 (58) ACC 254. Ratio laid down in this decision following a number of decisions of the Apex Court is that it is satisfaction of the Trial Judge whether to summon or not to summon an accused and such satisfaction can be arrived at upon completion of evidence of witnesses. It is for the Trial Judge to exercise discretion under Section 319, Cr. P. C. whether to proceed against an accused, who has not been charge-sheeted and is not facing trial.
(3.) COUNSEL for the applicant has emphasized that since witness was yet to be cross-examined and, therefore, exercise of discretion by the Trial Judge against the present applicant is at a premature stage and without cross-examination he could not conclusively record his satisfaction whether accused, who is not facing trial is also liable to be prosecuted on the basis of evidence recorded during the trial. Counsel for the opposite party No. 2 has disputed assertions made on behalf of the applicant. He has emphatically tried to place part of the judgment of the Apex Court in the case of Mohd. Shafi (supra) in support of his contention that facts of the present case cannot be equated with the decision relied upon by the Counsel for the applicant in the case of Mohd. Shafi (supra ). The Apex Court disapproved interference of the High Court while setting aside the order of the trial Court refusing to summon the accused under Section 319, Cr. P. C. only on the basis of statement in chief. The Apex Court was of the view that the High Court erred in interfering with the order of the trial Court at the instance of one of the respondents, who was merely a witness and not even cross- examined, in the circumstances, Sri Tapan Ghosh, learned Senior Advocate, emphatically argued that since facts are altogether different, two cases cannot be equated. He has also argued and emphasized the fact that the trial is pending since very long time for one or other reason, therefore, he does not propose to file counter-affidavit and is heard finally on merit.;