- (1.) RAVINDRA Singh, J. This Criminal Misc. Writ Petition has been preferred by the petitioners Ram Bai, Ram Kanti, Mithilesh, Malti, Lakhpat, Raju, Layak Ram, Matlab and Ram Babu with a prayer to quash the order dated 5-4-2007 passed by learned Addl. C. J. M.-VII, Jhansi in case No. 444 of 2000 whereby the application No. 29-b moved by the respondent No. 2 for summoning the petitioners for the offence punishable under Sections 147, 323, 324, 325 IPC was allowed and the order dated 29-6-2005 passed by learned Sessions Judge, Jhansi in criminal revision No. 68 of 2005 whereby the revision was allowed and the order dated 22-2-2005 passed by learned Addl. Chief Judicial Magistrate, Court No. 7, Jhansi in case No. 444 of 2000 was set aside and the trial Court was directed to re-consider the application under Section 319 Cr. P. C. by properly appreciating the prosecuting evidence in the light of the observation made in the body of the judgment.
(2.) THE facts in brief of this case are that the petitioners and other co-accused were named in the F. I. R. in case crime No. 491 of 1999 under Sections 147, 323, 324 IPC, P. S. Premnagar, Jhansi but after investigation the I. O. came to the conclusion that the petitioners were falsely implicated therefore, they were not charge-sheeted. THE charge-sheet dated 25-9-1999 was submitted against the co-accused Kamta Prasad, Gauri Shanker, Hoti and Mahendra by which the learned Magistrate concerned has taken the cognizance and summoned the accused persons to face the trial for the offence under Sections 323, 324, 325 IPC they were facing the trial of the criminal case No. 444 of 2000 pending in the Court of learned Addl. C. J. M.-VII, Jhansi where the statements of P. W. 1 and 2 were recorded. THEreafter an application under Section 319 Cr. P. C. was moved with a prayer that petitioners may be summoned to face the trial, the same was rejected on 22-2-2005. Being aggrieved by the order dated 22-2-2005 the criminal revision No. 68 of 2005 was preferred by the respondent No. 2, the same was allowed on 29-6- 2005 and the matter was remitted to the trial Court to pass a fresh order on the application under Section 319 Cr. P. C. , thereafter the learned trial Court passed the order dated 5-4-2007 by which the application under Section 319 Cr. P. C. has been allowed and the petitioners have been summoned to face the trial in exercise of the powers under Section 319 Cr. P. C. Heard Sri S. P. Sharma, learned Counsel for the petitioners and learned A. G. A. for the State of U. P. It is contented by learned Counsel for the petitioners that in the present case after considering the statements of P. W. 1 and 2 trial Court rejected the application under Section 319, Cr. P. C. on 22-2-2005 but the revisional Court has set aside the order dated 22-2-2005 passed by the trial Court by way of interfering in the findings of fact and the matter was remitted to the trial Court to pass a fresh order. The order dated 29-6-2005 passed by the learned Sessions Judge, Jhansi in criminal revision No. 68 of 2005 is illegal. Thereafter the learned A. C. J. M.-VII, Jhansi on the same evidence has allowed the application under Section 319 Cr. P. C. and summoned the petitioners to face the trial on 5-4- 2007. The application under Section 319 Cr. P. C should not be exercised in a mechanical manner merely on the ground that evidence had come on record implicating the petitioners sought to be added as accused. It is further contended that the petitioners to summon as accused is an extraordinary power conferred by the Court under Section 319 Cr. P. C. and should be used very sparingly and only if compelling reason exists for taking the cognizance. Against the other person against whom an action has not been taken, as held by the Hon'ble Supreme Court in the case of Krishnappa v. State of Karnataka, AIR 2004 SC 4298. It is contended that only on the basis of the statements of P. W. 1 and 2 is implicated the petitioners as accused, the powers under Section 319 Cr. P. C. to summon the petitioners may not be exercised. The revisional Court has also committed error by allowing the revision and setting aside the order dated 22- 2-2005 passed by the trial Court by which the application under Section 319 Cr. P. C. was rejected. The petitioners are innocent, they have been falsely implicated in the present case. The I. O. has also came to the conclusion that they were implicated that is why they were not charge-sheeted whereas the four co- accused were charge- sheeted, the impugned orders are illegal and are liable to be set aside.
(3.) IN reply of the above contention it is submitted by learned A. G. A. that in the present case the fare investigation was not done in respect of the petitioners because the specific allegation was made against them by the witnesses for committing the alleged offence even then the I. O. did not submit the charge- sheet against them. At the stage of the trial statement of P. W. 1 and 2 have been recorded, they have made the specific allegation against the petitioners that they have caused injuries by using Kulhadi, Lathi and Lohangi blows. The active role is assigned to them but the learned trial Court initially rejected the application under Section 319 Cr. P. C. vide order dated 22-2-2005 by assessing the correctness, truthfulness of the statements of P. W. 1 and 2. The learned trial Court made a meticulous analysis of the deposition made by P. W. 1 and 2. The learned trial Court has made the evaluation of the evidence of P. W. 1 and 2 for which the trial Court was not legally permitted because it is a settled law that the stage of the conclusion of the evidence by a witness testified by the prosecution comes at the end of the trial and not before that as has been held by the Hon'ble Supreme Court in the case of Mahendra Amarnath v. State of Haryana, 1983 SC 138. It was held by Hon'ble Supreme Court in the case of Ranjeet Singh v. State of Punjab, 1998 SC Criminal Ruling 914, that sub-section (1) of Section 319 Cr. P. C. contemplates the existence of some evidence appearing in the trial, wherefrom the Court can prima facie conclude that the person not arranged before it this also involved in the commission of the crime in which he can be tried with those already challenged by the police in the present case. There is evidence to show that petitioners are involved in the commission of the alleged offence. Learned trial Court has initially rejected the application on 22-2-2005, it was an illegal order which has been allegedly set aside by the revisional Court on 29-6-2005. The impugned order dated 29-6-2005 is perfect order, it is not suffering from any illegality. Thereafter the learned Addl. C. J. M.-VII, Jhansi has already passed a perfect order by which the petitioners have been summoned to face the trial in exercise of powers conferred under Section 319 Cr. P. C. The impugned order dated 5-4-2007 is not suffering from any illegality. The present petition is misconceived, having no substance and it may be dismissed. Considering the facts, circumstances of the case, submissions made learned Counsel for the petitioner, learned A. G. A. and considering the cases cited by both the sides and from the perusal of the impugned order, it appears that in the present case the P. W. 1 and 2 have made specific allegation against the petitioners showing their involvement in the commission of the alleged offence, it was a sufficient evidence for summoning the petitioners in exercise of powers conferred under Section 319, Cr. P. C. It is settled position of law that powers conferred under Section 319, Cr. P. C. are extraordinary powers which are always exercised with cautious and care. After perusing the evidence such powers cannot be exercised in a mechanical manner. It is also settled position that evaluation of the evidence of a witness is done at the end of the trial and not before that. For the purpose of summoning a person in exercise of the powers conferred under Section 319 Cr. P. C. it has to be seen whether there is any evidence on record involving a person in the commission of the crime. But in the present case statements of P. W. 1 and 2 show that there is specific allegation against the petitioners that they have committed the alleged offence. At this stage that meticulous analysis to assess the truthfulness of the witnesses or the evaluation of the evidence of the witness cannot be done. The learned Trial Court has committed the same error by passing the order dated 22-2-2005 by which the application under Section 319 Cr. P. C. was rejected. The learned revisional Court has committed no error in passing the impugned order dated 29-6- 2005 in criminal revision No. 68 of 2005 whereby the order dated 22-2-2005 was set aside and the matter was remitted to the trial Court to pass a fresh order on the application under Section 319 Cr. P. C. Thereafter the trial Court i. e. A. C. J. M.-VII, Jhansi has not committed any error in taking the cognizance and summoning the petitioners to face the trial for the offence punishable under Sections 147, 323, 324, 325 IPC in exercise of powers conferred under Section 319 Cr. P. C in criminal case No. 444 of 2000. The impugned order dated 5-4-2007 is not suffering from any illegality which requires no interference of this Court, it is perfect order, prayer for quashing the impugned order dated 29-6- 2005 passed by learned Sessions Judge, Jhansi in criminal revision No. 68 of 2005 and impugned order dated 5-4-2007 passed by learned A. C. J. M.-VII, Jhansi in case No. 444 of 2007 is refused. However, considering the facts, it is directed that in case the petitioners appear before the Court concerned within 30 days from today and apply for bail, the same shall be considered and disposed of on the same day by the Courts below.;