Vinod Prasad - (1.) -Heard learned counsel for the applicants and learned A.G.A.
(2.) THE two applicants namely Ravindra Yadav and Ashok Yadav have been summoned under Section 319, Cr. P.C. by Additional District and Sessions Judge/Fast Track Court No. 2, Gorakhpur in S.T. No. 219/2007, State v. Shailesh Yadav, for the offences under Sections 147, 148, 149, 307 and 326, I.P.C. and 3/5 Explosive Substances Act. THE basis of summoning the applicants under Section 319, Cr. P.C. is the recorded statement of P.W. 1 Markandey Singh, who is the father of the injured and the statement of Sanjay Singh, who himself is the injured in the incident. In their statements both the aforesaid witnesses have deposed that the applicant No. 1 Ravindra Yadav alongwith Brijesh Yadav and others had earlier committed the murder of the son of the informant, regarding which, sessions trial is progressing. In the said Sessions trial, Sanjay Singh injured of the present case had given statements against the accused persons. Motivated by the said deposition in the Sessions trial, on 23.3.2006 at 6 p.m., Ravindra Yadav applicant accused in the present case, instigated other accused persons Ashok, Brajesh Yadav and Manoj Tiwari to murder Sanjay. As a result of assault Sanjay sustained injuries in the instant case. It is further stated by the aforesaid two witnesses that on the instigation of Ravindra Yadav two other accused-Brijesh Yadav and Manoj Tiwari had hurled bombs on the injured and Ashok Yadav had shot at the injured. On the basis of aforesaid statements, the trial Judge was of the opinion that there are sufficient ground to summon Ravindra Yadav and Ashok Yadav as an accused to stand trial alongwith already trying accused. After going through the impugned order dated 1.8.2007, I do not find any illegality into it. At this stage the statement of the two persons including the injured is taken to be correct. If the statement of the injured and informant is believed, the inevitable result be the conviction of the two applicants. Learned counsel for the applicants relied upon a judgment of the Apex Court in Mohd. Shafi v. Mohd. Rafiq and another, 2007 (58) ACC 254 : 2007 (2) ACR 2268 (SC). I have perused the said judgment. The said judgment is of no help of the appellants for the simple reason, that in that case, the witness was examined-in-chief. In the said examination-in-chief, he had named Mohd. Rafiq as an accused. The trial Judge was of the opinion that examination-in-chief was not sufficient to summon Mohd. Rafiq under Section 319, Cr. P.C. and hence, the trial Judge deferred the summoning of Mohd. Rafiq to future date. Against the said non-summoning, informant had approached the High Court in that case. High Court, however, took the view that the examination-in-chief was sufficient to summon the appellant. Hence, the High Court set aside the order and directed the trial Judge to summon the aforesaid person as an accused. Aggrieved by the order passed by the High Court that the accused has moved to the Apex Court. The Apex Court took the view that the satisfaction is of the trial Judge. If the trial Judge had deferred the summoning, there was nothing wrong in it and at that interlocutory stage, the High Court could not have interfered with the opinion of the trial Judge. Taking such view, the Apex Court has held that there was no illegality in the order of non-summoning of the accused by the trial Judge, and, therefore, the High Court erred in law to set aside that order. Holding such a view, the Apex Court has set aside the order passed by the High Court and restored the order passed by the trial Judge in the aforesaid case.
(3.) THE facts in the present case are to the contrary. In this case, the trial Judge after examining of two witnesses including the injured was satisfied that there is sufficient reason to summon the two applicants as accused. This view of the trial Judge looking into the facts of the present case cannot be said to be an arbitrary exercise of power nor it can be said that if the evidence of two witnesses including the injured if taken to be correct no conviction is possible. Evidence of injured witness, whose presence at the spot is beyond doubt is by itself sufficient to convict the applicants if believed. THE impugned order is based on admissible evidences, which is sufficient, to frame the charges against the applicants and if the trial Judge on such evidences was of the opinion that there are sufficient ground to summon the two applicants as accused, there is nothing wrong and illegal in it. THE discretionary power of the trial Judge should not be interfered with by this Court lightly, otherwise the very purpose of the statute will suffer. Section 319, Cr. P.C. is incorporated in the statute book to do complete justice and it is not an ornamental power. In view of the aforesaid, I do not find any merit in this application, which is dismissed with the direction that in case, the applicants surrender before the courts below within one month from today and move an application for bail, their bail prayer shall be considered expeditiously without unreasonable and uncalled for delay in the above Sessions trial.;