Amar Saran - (1.) -Heard Sri Vinay Saran, learned counsel for the applicant, learned counsel for opposite party No. 2 Sri Javed Habib and learned A.G.A.
(2.) THIS criminal revision has been filed for quashing an order dated 15.6.2004 summoning the applicant Mohd. Jahid in a case under Sections 498A, 304B and 201, I.P.C. and 3/4 of D. P. Act in exercise of powers under Section 319, Cr. P.C., passed by the Addl. Sessions Judge, F.T.C. 2, Bareilly, after recording the examination-in-chief of the informant-P.W. 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. 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 (2) ACR 2268 (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, AIR 2001 SC 2001 : 2001 (2) ACR 1609 (SC) ; Rajendra Singh v. State of U. P., 2007 (7) SCC 378 : 2007 (3) ACR 2696 (SC), in the decision of Cr. Misc. Appln. No. 2355 of 2008, Parmal v. State of U. P. and another, 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 (2) ACR 2268 (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."
(3.) IN the present case, on the contrary, the learned Sessions Judge was fully satisfied that sufficient grounds existed for summoning the applicant on the basis of the examination-in-chief of the witness Ved Pal and that the learned Magistrate has not given proper reasons for not summoning him at the earlier stage when the learned Magistrate rejected the final report and summoned the other co-accused. In the case of Rakesh v. State of Haryana, AIR 2001 SC 252 : 2001 (2) ACR 1609 (SC), the conspectus of case law on the point has been considered and it has been clarified that it is not mandatory to cross-examine the witness before summoning an accused in exercise of power under Section 319, Cr. P.C. In this connection paragraphs 13 and 14 of Rakesh's case may be read with advantage : "13. Hence, it is difficult to accept the contention of the learned counsel for the appellants that the term 'evidence' as used in Section 319, Criminal Procedure Code would mean evidence which is tested by cross-examination. The question of testing the evidence by cross-examination would arise only after addition of the accused. There is no question of cross-examining the witness prior to adding such person as accused. Section does not contemplate an additional stage of first summoning the person and giving him an opportunity of cross-examining the witness who has deposed against him and thereafter deciding whether such person is to be added as accused or not. Word "evidence" occurring in sub-section is used in comprehensive and broad sense which would also include the material collected by the Investigating Officer and the material or evidence which comes before the Court and from which the Court can prima facie conclude that person not arraigned before it is involved in the commission of the crime. 14. Lastly, learned counsel further submitted that power under Section 319 is an extraordinary power and should be used very sparingly and only for some compelling reasons for taking cognizance of other persons against whom action has not been taken. For this purpose, he referred to M.C.D. v. Ram Kishan Rohtagi, (1983) 1 SCC 1 : AIR 1983 SC 67 : 1983 Cri LJ 159 : 1983 ACR 114 (SC). In our view, there cannot be a dispute that power under Section 319 is to be sparingly used. But that would not mean that when a prosecutrix names three persons who were involved in the serious crime are not to be added as accused by exercise of such power." ;