- (1.) AMAR Saran, J. Heard learned Counsel for the applicants, learned Counsel for the opposite party No. 2 and the learned A. G. A.
(2.) AN (order dated 2. 12. 2005 passed by the Additional Sessions Judge, F. T. C. 1, Mau, in S. T. No. 179 of 2002 has been chal lenged by means of this application whereby the learned Additional Sessions Judge F. T. C. 1, Mau allowed the applica tion of the informant Virendra Pratap un der section 319 Cr. P. C. after his examination-in-chief and summoned the applicants in a case under sections 302, 147, 148, 149 IPC. A counter affidavit was filed in this case, which was served on the applicants on 27. 2. 2006 today. He prays for time to file rejoinder affidavit. It is disallowed. On the perusal of the impugned order, I find that the applicants were named in the F. I. R. and also in the state ments of the witnesses under section 161 Cr. P. C. Thereafter, after the examination-in-chief of the informant, the applicants have been summoned as above.
(3.) NO doubt, learned Counsel for the applicants contended that as the informant is not an eye-witness and that one of the injured witnesses Premshila has not named the applicants Ram Kewal Singh, Vijay, Amar Jeet and Shashi Kant, on that basis the Investigating Officer submitted a final report. However, I find that in the 161 Cr. P. C. statement of another injured wit ness Rajesh the applicants were clearly named, but I am only alluding to this fact because learned Counsel for the applicants had submitted that no injured had named the applicants in the 161 Cr. P. C. statement, Although such facts are not of much conse quence as statements of the witnesses under section 161 Cr. P. C. cannot form the material for summoning an accused under section 319 Cr. P. C. but order for the same has to be passed on the basis of evidence recorded in Court. It is next argued that it is manda tory to cross-examine the witness before a summoning order is passed. I have consid ered the latest authorities in the case of Parmal v. State of U. P. and another, Crl. Misc. Application No. 2355 of 2008, decided on 19. 2. 2008 wherein I have held relying on the decisions of Apex Court in Rakesh v. State of Haryana 2001 (43) ACC 392 (SC) and Rajendra Singh v. State of U. P. 2007 (59) ACC 541 (SC) (SC) that there must be material for the Court to exercise its judicial discretion and there is no absolute restriction that even if the evidence-in-chief discloses prima facie case, an accused cannot be summoned un der section 319 Cr. P. C. until the witness is cross-examined.;