- (1.) SHIV Charan, J. The present application has been moved under Section 482, Cr. P. C. for quashing the order dated 24. 10. 2007 passed by Addl. Sessions Judge Court No. 4 Etawah in ST. No. 158/05 under Sections 147,302, IPC.
(2.) A perusal of the documents shows that FIR was lodgedby Mohd. Asif on 20. 5. 2007 at about 9. 45 p. m. against Mustakim applicant and four other accused persons registered at Crime No. 71 of 2005 under Section 147, 302, IPC PS. Ekdil, District Etawah. The matter was investigated by the police and charge-sheet was submitted against the accused persons except the applicant Mustakim. Afterwards the statement of Mohd. Asif P. W. 1 was recorded and on the basis of the statement of examination-in-chief of this witness, application was moved for summoning the applicant Mustakim for the offence under Sections 147 and 302, IPC under Section 319, Cr. P. C. and learned Sessions Judge being satisfied from the evidence of Mohd. Asif summoned the applicant to face trial for the offence and this order passed under Section 319, Cr. P. C. is challenged by this applica tion. It has been argued by learned Counsel for the applicant that learned Ses- ' sions Judge committed gross illegality in passing the order of summoning on the basis of the evidence recorded by the IO in the case diary and also on the basis of the statement of the examination in chief of Mohd. Asif P. W. 1. That learned Sessions Judge was not justified in considering the evidence recorded by the IO in the case diary for the purpose of passing the order under Section 319, Cr. P. C. Learned Sessions Judge also committed illegality in passing the order of sum- ' moning only on the basis of. the statement of examination in chief of Mohd. Asif. That in view of the judgment of Hon'ble Apex Court this was the most unjustified act and order is illegal hence the order is liable to be set aside. Learned AGA opposed the argument of learned Counsel for the applicant and argued that for passing the order under Section 319, Cr. P. C. the satisfaction of trial Court is of prime importance and in the present case learned Sessions Judge after being satisfied from the statement of Mohd. Asif passed the order of summoning and there is no illegality in the order.
(3.) I have considered all the facts and circumstances of the case. In view of Section 319, Cr. P. C. learned Sessions Judge is fully competent to pass the order of summoning if the Court is satisfied in course of any enquiry and trial for an offence that any person not being the accused had committed any offence for which such persons should be tried together with the accused and such person can be summoned on the basis of the evidence. I agree with this argument of learned Counsel for the applicant that the evidence recorded by the I. O. in the case diary cannot be a basis for passing the order under Section 319, Cr. P. C. Although it is a fact that in the impugned order learned Sessions Judge consid ered the evidence recorded by the I. O. in the case diary during investigation. But learned Sessions Judge also considered the evidence of P. W. 1 recorded in the Court. If this part of the order in which the trial Court placed reliance on the evident recorded by the I. O. in the case diary for the purpose of passing the order under Section 319 Cr. P. C. is to be ignored then whether there is sufficient material before Sessions Judge to pass the order of summoning under this provi sion is to be considered. Because learned Sessions Judge has passed the order under Section 319, Cr. P. C. after recording the statement of Mohd. Asif P. W. I and Sessions Judge has also relied upon the statement of PW. 1 for the puipose of summoning the applicant. The legal matter involved in the present case is as to whether the learned Sessions Judge is satisfied in placing reliance on the state ment of examination-in-chief of P. W. 1, and whether it is the requirement of the law that the entire statement of a witness including cross-examination should be recorded prior to passing the order under Section 319, Cr. P. C. and in that circum stance the statement of such witness should be considered. In this context the learned Counsel for the applicant cited judgment of Hon'ble Apex Court reported in JT 2007 (5) SC 562, Mohd. State v. Mohd. Rafiq and another. The Hon'ble Apex Court held as follows: "12. The Trial Judge, as noticed by us, in terms of Section 319 of the Code of Criminal Procedure was required to arrive at his satisfaction if he thought that the matter should receive his due consideration only after the cross-examination of the witnesses is over, no exception thereto could be taken far less at the instance of a witness and when the State was not ag grieved by the same. " In view of this judgment of Hon'ble Apex Court it is the satisfaction of the Court. concerned to pass the order under Section 319, Cr. P. C. and if the Court is not satisfied for. passing the order under Section 319, Cr. P. C. for summoning the accused then the Court can require that this application shall be considered after recording the evidence of witness. But Hon'ble Apex Court has not laid down that the order under Section 319, Cr. P. C. shall be passed only after recording the entire statement of the witness including cross-examination also. It is evident from the facts of the case before Hon'ble Apex Court that learned Sessions Judge deferred the disposal of the application under Section 319, Cr. P. C. till the cross- examination of the witnesses was recorded and in this context the Hon'ble Apex Court held that it is satisfaction of the Court concerned for passing the order under Section 319, Cr. P. C. and if the Court considered that the matter is required received due consideration only after cross-examination of the witness is over then it cannot be said that the Court acted illegally. But if the position is that the learned Sessions Judge after being satisfied from the examination-in-chief of the witness for summoning the accused under Section 319, Cr. P. C. then it cannot be said that the learned Sessions Judge acted illegally in passing order without recording the cross-examination. The main thing is the satisfaction of the Court concerned and in the present case the learned Sessions Judge was satisfied with the examination-in- chief of the witness and hence the order was passed for summoning of the accused applicant to face trial.;