- (1.) ARVIND Kumar Tripathi, J. The present Criminal Revision has been filed on behalf of the applicants against the judgment and order dated 7. 8. 2008 passed by the Special Judge, SC/st Act, F. T. C. No. 11, Banda under section 319 Cr. P. C. sum moning the applicants under sections 323, 504. 506 IPC and 3 (1) (i) SC/st Act, P. S. Bisanda, District Banda.
(2.) HEARD learned Counsel for the applicants and learned AGA and perused the record. Learned Counsel for the appli cants contended that on the application under section 156 (3) Cr. P. C. filed against the revisionist and 'others accused persons learned Magistrate directed for registration of the First Information Report and investi gation of the case. After the investigation, the investigating officer submitted the charge-sheet against the co-accused Naimuddin and Rajendra on 7. 2. 2007 and involvement of the applicants had been found false. After the charges were framed PW-1 was examined on 8. 5. 2008 and in his examination-in-chief he has named the re visionist regarding their participation in the aforesaid case along with the other ac cused. Thereafter on the application moved by learned DGC under section 319 Cr. P. C. the applicants have been summoned to face the trial in Special Trial No. 99/07 under sections 323, 504, 506 IPC. and under sec tion 3 (1) (x) SC/st Act, PS Bisanda, District Banda. Learned Counsel for the applicants challenged the summoning order dated 7. 8. 2008 under section 319 Cr. P. C. only on the ground that the Trial Court had com mitted error in summoning the applicants before the cross-examination. According to him only after the cross-examination and recording the satisfaction regarding prob ability and likelihood of the conviction the applicants might have been summoned. Hence on that ground the impugned order is illegal and without jurisdiction. In sup port of the argument learned Counsel for the applicants has relied upon the judg ment passed by the Apex Court in the case of Mohd. Shaft v. Mohd. Rafiq and another. 2007 (58) ACC 254 (SC) = 2007 (53) AIC 56 (SC ). To consider the aforesaid argu ment first the provision of section 319 Cr. P. C has to be considered, hence the same is quoted below : "where, in the course of any inquiry into, or trial of, an offence, it ap pears 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. Where such person is not attending the Court, he may be arrested or sum moned, 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 sum mons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed. 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. From the aforesaid section it is crystal clear that under section 319 Cr. P. C. there is no provision for hearing the accused who has been pro posed to be summoned at any stage of inquiry and trial. If there is evidence against a third person against whom no charge sheet has been filed and prima facie com mission of offence is disclosed from the evidence and there is possibil ity and likelihood of the conviction then that person can be summoned under section 319 Cr. P. C. to face the trial. So for as the case of Mohd. Shafi is concerned, the fact of the aforesaid case is entirely different. In his examination-in-chief PW-1 has alleged that the incident had taken place in his presence and the appellant had taken part in the incident. An application was filed summoning Mohd. Shafi under section 319 Cr. P. C. only on the basis thereof in view of the fact that the, learned Sessions Judge refused to ac cede to the said prayer stating : "file is taken up. Statement has been perused in regard to the applica tion under section 319 Cr. P. C. On perusal of the statement of the wit ness PW-1 Rafiq uptil now wit ness's chief examination is only done. The witness had stated the incident has taken place in his presence and has further stated to reach the spot on hearing the noise. On going through statement given under section 161 Cr. P. C. of the witness, it is found to be recorded in Paper No. 1 dated 10. 11. 2005 that he reached the spot after the incident as stated by this witness. And accused Karimullah is said to be the incident doer. Hence, the application is not acceptable at this stage. The application under sec tion 319 Cr. P. C. is being dismissed at this stage. ";