- (1.) AMAR Saran, J. Heard learned Counsel for the applicant and learned AGA.
(2.) THIS application has been filed for challenging order dated 10. 12. 2007 passed by Addl. Sessions Judge, Court No. 2, Jaunpur, summoning the application under section 319 Cr. P. C. in ST No. 492 of 2006 (State v. Jasram), under sections 302 and 307 IPC, PS Nangal, District Bijnor. The background of this application is that an incident took place in village Chandok, PS Nangal, District Bijnor, on 17. 10. 2005 at about 5 pm. The applicant and his brother Jasram invited some persons to their house for drinking liquor. Jasram was contesting for the post of BDC member. The witness Mitthan and others were supporting the other side. It is stated that as a result of consumption of liquor which was alleged to be poisoned, six persons, namely, Jabar Singh, Kesari, Om Prakash, Chaman, Matloo and Neetu died in Bijnor's Government Hospital and 25 persons were said to be grievously hurt as a result of the poisoned liquor. PW 2, Harish Chandra lost his eye-sight. As the charge-sheet had only been submitted against Jasram, an application under section 319 Cr. P. C. was moved after the evidence of PW 1, Mitthan, which was allowed by the Addl. Sessions Judge, Court No. 2, Bijnor, on 20. 1. 2007 and an order was passed summoning the applicant also for trial under sections 307 and 302 IPC. The said order dated 20. 1. 2007 was challenged before the High Court by the applicant in an earlier application under section 482 Cr. P. C. in which it was contended that as the investigating officer had found the complicity of the applicant to be false and had not submitted any charge-sheet against him, reliance could not be placed on the evidence of PWs 1 and 2. However, this Court, observing that there was no illegality or impropriety in the said order, had declined to interfere by its order dated 6. 2. 2004 and only directed that if the applicants surrender before the Court concerned within 3 weeks from the date of filing of the copy of the order, his prayer for bail should be expeditiously decided by the Court below.
(3.) THE applicant had, thereafter, preferred a Spl. Leave Petition No. 2417 of 2007 against the order of the High Court before the Apex Court. THE Apex Court was pleased to allow the said application on the ground that in his cross-examination PW 1, Mitthan, had denied making any statement to the investigating officer and he simply claimed to have made the said statement in Court. It was also observed by the Apex Court that the witness could not give any reason why his cross-examination was deferred and another witness Harish Chandra was examined who had also named the applicant, his cross-examination was also deferred. THE Supreme Court observed that the learned Sessions Judge had departed from the underlying principles L for exercising jurisdiction on an application under section 319 Cr. P. C. and referred to the decision of Municipal Corporation of Delhi v. Rant Kishan Rohtagi and others. 1983 (20) ACC 50 (SC ). However, the Apex Court had observed that, "this order shall not preclude the learned Sessions Judge from applying his mind afresh after prosecution has examined other witnesses. " Thereafter, after the examination of the other witnesses another application (Ext. Kha-45) was moved by the prosecution under section 319 Cr. P. C. on the ground that the examination (including cross-examination) of all the witnesses (i. e. PWs 1 to 10) had been completed and that the witnesses PW 1, Mitthan, PW 2 Harish Chandra and PW 3 Kali Ram had specifically mentioned in their statements that the applicant Ajay was also involved in the commission of the crime. Thereafter, after a detailed reference to the evidence and after noting that the cross-examination of the three witnesses had also been completed, and after referring to the decisions of the Apex Court, inter alia, in Delhi Municipality v. Ramkishan, 1983 (20) ACC 50 (SC); Kishun Singh v. State of Bihar, 1993 (30) ACC 167 (SC) Rakesh v. State of Haryana, 2001 (43) ACC 392 (SC ). Joginder Singh and another v. State of Punjab and others, 1979 (16) ACC 43 (SC) and Michael Machado and others v. Central Bureau of Investigation and others, 2000 (40) ACC 795 (SC ). '' the Addl. Sessions Judge, Court No. 2, Bijnor, passed an order dated 10. 12. 2007 summoning the applicant again under section 319 Cr. P. C. This order is presently under challenge by means of the present application.;