- (1.) VINOD Prasad, J. Heard learned counsel for the applicant and learned AGA.
(2.) LEARNED counsel for the applicant criticized the impugned summoning order of the applicant under Section 319, Cr. P. C. dated 7. 4,2008 passed by Special Judge (SC/stact) Gautam Budh Nagar in ST. No. 624 of 2006, P. S. Sector-24, District Gautam Budh Nagar primarily for three reasons. Firstly, that the applicant is not named in the first information report as an accused. Secondly, that he had got no motive to participate in the incident of committing the murder and lastly that PW-5, on whose statement in the Court, the applicant has been summoned to stand the trial, is an interested witness and he colluded with the main accused persons and to save his skin. He has made a U turned in his statement and implicated the present applicant. LEARNED Counsel for the applicant has further contended that solitary statement of P. W. 5 by itself is not sufficient to hold the applicant guilty and hence exercise of power under Section 319, Cr. P. C. by the trial Judge to summon the applicant as an accused is not in consonance with law as well as various pronouncements by the Apex Court. Some of those pronouncements which have been relied upon by the learned counsel for the applicant are Lokesh Ram v. Nihal Singh and another, AIR 2006 SC (11) 892 (para 12); Palanisamy Gounder and another v. State representated by Inspector of Police, (2005) 12 SCC 327 (para 13) and Kavuluri Vivekananda Reddyand another v. State of A. P. and another, (2005) 12 SCC 432 (para 2 ). LEARNED counsel for the applicant has further submitted that in any view of the matter the impugned order of summoning dated 7. 4. 2008 is bad in law and deserves to be quashed and this application deserves to be allowed. Sri S. L. Kesarwani, learned AGA and Sri P. C. Pathak learned counsel for the respondent, per contra, contended that there is no infirmity in the impugned summoning order and therefore, this application being bereft of any merit deserves to be dismissed. Ave cogitated over rival contentions and hAve gone through the record of this Criminal Misc. Application along with the appended annexures, with special attention to the statement of witness PW 5, Mukesh Kumar, recorded in the concerned Sessions Trial No. 624/06, State v. Krishna Pal Singh Yadav and others.
(3.) THE controversy in this application lies in a very narrow compass. THE , question which has been mooted for consideration and judicial determination is as to whether power under Section 319, Cr. P. C. has been exercised by the Special Judge (SC/st Act) G. B. Nagar in consonance with the statutory provision and the law laid down by the Apex Court or not in respect of Section 319, Cr. P. C. ? For a ready reference Section 319, Cr. P. C. is reproduced below: Power to proceed against other persons appearing to be guilty of offence.- (1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed. (2) Where such person is not attending Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid. (3) Any person attending the Court although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed. (4) Where the Court proceeds against any person under sub-section (1) then - (a) the proceedings in respect of such person shall be commenced afresh, and the witnesses re-heard; (b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced. ";