- (1.) ALOK K. Singh, J. This petition under section 482 Cr. P. C. has been filed to quash the order dated 20. 9. 2007 passed by Sri A. K. Rastogi, the then Sessions Judge, Lucknow, in Sessions Trial No. 679 of 2007 (State v. Brijesh Kumar Tiwari and others) through which the petitioner and one more person (non-applicant) have been summoned under section 319 Cr. P. C. to face the trial along with other accused persons. The sessions trial is proceeding under sections 320/120-B I. P. C.
(2.) HEARD Sri Nagendra Mohan, learned Counsel for the petitioner, learned A. G. A. and Sri Mukul Rakesh, learned Counsel for opposite party No. 2 and perused the record. The facts, wrapped in brevity, are that according to prosecution the deceased Anwar was shot at by accused Brijesh Kumar Tiwari and Kanhai Misra. The F. I. R. of this incident was lodged by Sri Anjani Kumar Pathak on 29. 3. 2003 at 5. 30 P. M. (annexure-1 ). According to the version of the F. I. R. the pistols which were used by Brijesh Kumar Tiwari and Kanhai Misra were supplied by the petitioner Manoj Kumar Pandey and Constable Rakesh Pandey who had come at the gate of lock up along with an unidentified person. Further according to the prosecution those pistols were recovered from the possession of Brijesh Kumar Tiwari and Kanhai Misra accused regarding which also another F. I. R. was lodged by Sri P. K. Shukla, Inspector Incharge Kotwali, Rae Bareli under sections 3/25 Arms Act on the same day i. e. 29. 3. 2003 under case crime Nos. 103 of 2003 and 104 of 2003. The deceased is said to has received two fire arm wounds of entry on his person. After completing the investigation the charge-sheet was submitted, against Brijesh Kumar Tiwari, Kanhai Misra, Constable Ram Awadh Ram and Chandra Mani, The petitioner Manoj Kumar Pandey and Rakesh Kumar Pandey (non-petitioner) were not charge-sheeted. After framing of the charges on 23. 11. 2004. against the aforesaid four accused the statements of five witnesses were recorded. Then for the first time after recording the examination-in-chief of Anjani Kumar Pathak (P. W. 6) the prosecution moved an application under section 319 Cr. P. C. for summoning the petitioner and Ram Kumar Pandey (non-petitioner ). Meanwhile on an application moved by the accused persons under section 407 Cr. P. C. the session trial was transferred from Sessions Court Rae Bareli to the Sessions Court, Lucknow.
(3.) THE learned Sessions Judge, Lucknow allowed the application under section 319 Cr. P. C. and summoned the petitioner and aforesaid non-petitioner Rakesh Kumar Pandey vide impugned order (annexure-3 ). Learned Counsel for the petitioner submitted that only examination-in-chief of Anjani Kumar Pathak (P. W. 6) has been conducted and therefore in absence of any opportunity to cross-examine, it cannot be treated as complete evidence for the purposes of passing an order under section 31 Cr. P. C.;