AMAR SARAN, J. - (1.) HEARD Sri Vinay Saran learned Counsel for the applicant, learned Counsel for opposite party No. 2 Sri Javed Habib and learned AGA.
(2.) THIS criminal revision has been filed for quashing an order dated 15.6.2004 summoning the applicant Mohd. Jahid un­der sections in a case under sections 498-A IPC, 304-B and 201 IPC and 3/4 of the D.P. Act in exercise of powers under section 319 Cr.P.C. passed by the Addl. Sessions Judge, FTC 2, Bareilly, after recording the exami-nation-in-chief of the informant-PW 1, Mohd. Shafi on 6.2.2004. The allegations in this case were that the deceased Kesar Jahan had been murdered for dowry and her body had been buried. After exhuming the body it was learnt that the deceased had been throttled to death.
(3.) IT was argued by the learned Counsel for the applicant that without cross-examination of the witness an order for summoning under section 319 Cr.P.C. ought not to have been passed. For this proposition reliance was placed on the de­cision of Mohd. Shafi v. Mohd. Rafiq, 2007 (58) ACC 254 = 2007 (53) AIC 56 (SC). I have considered the proposition laid down in this case. After examining the various decisions of the Apex Court, viz. in the cases of Rakesh v. State of Haryana, 2001 (43) ACC 392 (SC) Rajendra Singh v. State of U.P., 2007 (59) ACC 541 (SC) = 2007 (57) AIC 69 = 2007 (7) SCC 378 in the decision of Parmal v. State of U.P. and another, Cr. Misc. Appln. No. 2355 of 2008 decided on 19.2.2008 I have held as follows: "The case of Mohd. Shafi v. Mohd. Rafiq and another, 2007 (58) ACC 254 = 2007 (53) AIC 56 (SC) also does not lay down any proposition that an ac­cused can only be summoned after a witness has been cross-examined; rather the said case was one where the learned Sessions Judge had re­fused to accede to the prayer for summoning the appellant under section 319 Cr.P.C. because in that case the Sessions Judge had noted that the witness had reached the spot on hearing a noise and on an examination of his statement under section 161 Cr.P.C. he was reported to have stated that he reached the spot after the incident. Hence, the evidence did not appear acceptable to the Court and the Court had simply dismissed the prayer under section 319 Cr.P.C. at that stage. The Apex Court rightly observed in the said case that the order summoning the accused should be the result of a judicial exercise of discretion and the Court had prop­erly exercised its discretion in not summoning the accused at that stage as it thought that the matter could be better resolved after cross-examination of the witnesses and the Court further observed that no exception could be taken to the order of the Sessions Judge when the State was not aggrieved by the same." ;