Ravindra Singh, J. - (1.) THIS appli cation has been filed by the applicant Pappu Singh with a prayer to quash the order dated 28.8.2008 passed by learned XV Addl. Sessions Judge, Meerut in S.T. No. 686 of 2003 (State v. Rajendri and others) under section 302 IPC whereby the appli cation under section 319 Cr.P.C. filed by the prosecution has been allowed and the applicant has been summoned to face the trial for the offence punishable under sec tion 302 IPC in exercise of powers con ferred under section 319 Cr.P.C.
(2.) THE facts in brief of this case are that the FIR of this case has been lodged by O.P. No. 2 Shyam Singh at P.S. Partapur. District Meerut on 30.6.2003 at 5.30 A.M. in case crime No. 190 of 2003 under sections 302, 307 IPC against some unknown persons alleging therein that some unknown miscreants caused injuries by using sharp edge weapon on the persons of Ram Baksh, Nepal Singh and Smt. Prakashi. THEreafter they were shifted to the hospital where Nepal Singh and Smt. Prakashi were de clared dead and Ram Baksh was admitted in Jagat Nursing Home, Garh Road, Meerut, subsequently he also succumbed to his injuries. After investigation the I.O. submitted the charge-sheet against Smt. Rajendri Devi W/o deceased Nepal Singh, Shiv Kumar and Vinod, THE learned Magis trate concerned has taken the cognizance on the basis of the charge-sheet submitted against them. THEreafter their case was committed to the Court of Sessions, the same is pending in the Court of learned Addl. Session Judge-XV, Meerut vide S.T. No. 686 of 2003 under section 302 IPC in which Shyam Singh P.W.-1, Vishnu P.W.-2, Ramesh P.W.-3, Dr. R.K. Gupta, P.W.-4, Dr. N. Naithani P.W.-5, S.I. Chandan Singh P.W.-6 and S.I. Hari Singh Bhadauriya P.W.-7, Head Constable Jaiveer Singh P.W.-8 have been examined, thereafter an appli cation under section 311 Cr.P.C. has been filed by the prosecution for summoning Suman and Nisha, the daughters of the deceased Nepal Singh, the same was al lowed and Suman and Nisha have been summoned by the Trial Court as witnesses and they have been examined as CW-1 and CW-2 respectively. THEreafter the state ment of S.I. Amar Pal Singh has been re corded as P.W.-9 and statement of S.H.O. Chandra Pal Singh was recorded as P.W.-10. After recording the above mentioned statements, the statements of the accused persons were recorded under section 313 Cr.P.C. but at the stage of the argument an application under section 319 Cr.P.C. has been moved by the prosecution to summon the applicant in exercise of powers con ferred under section 319 Cr.P.C. on the ba sis of statement of CW-1 Suman and CW-2 Nisha who are eye-witness of the alleged incident, the same was allowed by learned Trial Court vide order dated 28.8.2008 and the applicant has been summoned to face the trial for the offence punishable under section 302 IPC. Being aggrieved from the order dated 28.8.2008 the applicant has filed the present application with a prayer to quash the impugned order dated 28.8.2008 in exercise of powers conferred under section 482 Cr.P.C. Heard Sri Rajeev Gupta, Sri Madan Mohan and Sri V.K. Jain, learned Counsel for the applicant and learned A.G.A. for the State of U.P. It is contended by learned Counsel for the applicant that the applicant is not named in the FIR, during investigation also the name of the applicant has not been dis closed by any of the witnesses whereas the charge-sheet has been submitted against three persons namely Smt. Rajendri Devi, W/o of the deceased Nepal Singh, Shiv Kumar and Vinod who are facing the trial. All the witnesses of the prosecution were examined, none of them have disclosed the name of the applicant as accused but sur prisingly an application under section 311 Cr.P.C. has been moved by the prosecution after examination of eight witnesses with a prayer to summon CW-1 Suman and CW-2 Nisha. Suman and Nisha were not wit nesses of the prosecution, they are daugh ters of the deceased Nepal Singh and the accused Smt. Rajendri Devi, they claimed themselves to be eye-witnesses of the al leged incident and they disclosed their age about 14 years and 13 years respectively. Their statements were recorded as CW-1 and CW-2 and they have been cross-examined also. They disclosed the name of the applicant alleging that he has actively participated in the commission of the al leged offence, they stated that the applicant and three other co-accused persons who have been charge-sheeted committed the alleged offence, they are child witnesses and are not reliable. It is also surprising that after cross-examination of the above mentioned witnesses the application under section 319 Cr.P.C. has not been filed but it has been filed at the stage of the argu ments. It is based on false and frivolous allegations and no reliance can be placed on the statement of CW-1 and CW-2 who are the child witness even then the learned Trial Court had made the reliance on their statements and summoned the applicant to face the trial which is illegal, the same may be quashed.
(3.) IT is further contended that the power conferred under section 319 Cr.P.C. may not be exercised in a routine manner. The same may be exercised sparingly, therefore, the impugned order dated 28.8.2008 may be quashed. In reply of the above contention it is submitted by learned A.G.A. that the alleged incident has taken place at the house of the deceased persons where CW-1 and CW-2, the daughters of the deceased Nepal Singh were also present, its reference has been given in the FIR itself. Being chil dren they have not been made witness by the I.O. that is why they could not be exam ined in the Court as prosecution witness. But both the witnesses are eye-witness and they are able to narrate the prosecution story and are able to give proper reply of the question put before them. They are the best witnesses because they are the only eye-witnesses of the alleged incident, the other three inmates of the house have lost their lives in the said incident. For the just decision of the case their evidence is essen tially required, therefore, the application under section 311 Cr.P.C. was moved by the prosecution for summoning the CW-1 and CW-2, the same was allowed by the Trial Court and the eye-witness Suman and Nisha have beer examined in the Court as CW-1 and CW-2. They have clearly stated that the applicant actively participated along with other co-accused persons in commission of the alleged offence. They are reliable witnesses, they are daughters of the accused Smt. Rejendri Devi and they have made specific allegation against their mother Smt. Rajendri Devi also in their ex amination in chief and in cross-examination. Thereafter the application under section 319 Cr.P.C. has been moved by the prosecution for summoning the applicant to face the trial, the same has been rightly allowed by the Trial Court but it is not improper that this application was moved at the stage of the argument. There is no illegality in the impugned order, the Trial Court has rightly exercised the pow ers conferred under section 319 Cr.P.C. the present application is devoid of merit and the same may be dismissed.;