Vijay Kumar Verma, J. - (1.) BY means of this application under Section 482 of the Code of Criminal Procedure (in short, 'the Cr.P.C.'), order dated 8.7.1993, passed by Ixth Additional Sessions Judge, Kanpur Nagar in S.T. NO. 748/1992 (State Vs. Raj Kumar Tewari and others) under Section 302/34 I.P.C. P.S. Sachendi, Kanpur Nagar, has been challenged.
(2.) BY the impugned order, notice has been issued by the court below to the applicant to appear and show cause as to why he should not be tried. From the record it transpires that an F.I.R. was lodged by Shri Virendra Singh alias Chhote Singh S/o Shri Brij Narayan Singh, resident of Gairampur, Police Station Sachendi Kanpur Nagar on 5.4.1992. According to that F.I.R., a case under Sections 147, 148, 149 and 302 I.P.C. was registered at P.S. Sachendi, Kanpur Nagar against Raj Kumar Tewari alias Kallu Tewari, Rajan Tewari, Shiv Bihari Tewari, Kapil Dev and Birendra Shukla (applicant herein). After investigation, charge- sheet was not submitted against the applicant, as he was not found involved in the incident, which was said to have occurred on 5.4.1992 at about 7.00 p.m. The accused persons against whom charge-sheet was submitted were summoned to face the trial. On the case being committed to the court of session for trial, S.T. NO. 748/1992 was registered. During the course of trial, an application was moved on behalf of the prosecution to summon Birendra Shukla also to face the trial. On the basis of that application, impugned order was passed by the court below on 8.7.1993, whereby notice was issued to the applicant to appear on 29.7.1993 and show cause as to why he should not be tried along with other accused persons. Being aggrieved by the impugned order, the applicant has come to this court in this proceeding under Section 482 Cr.P.C. When the case was taken up in the revised list, Shri Vineet Singh Sengar, counsel for the complainant Shri Virendra Singh alias Chhote Singh did not come. Hence I heard argument of Sri L.M. Singh learned counsel for the applicant and learned A.G.A. for the State.
(3.) IT was submitted by the learned counsel for the applicant that there is no provision in Cr.P.C. to issue notice prior to passing the summoning order under Section 319 Cr.P.C. and hence the impugned order, being wholly illegal, should be set aside. IT was also submitted by learned counsel for the applicant that court below did not apply its mind to the facts of the case and merely on making prayer by the Government counsel, impugned order was passed. Learned A.G.A. also could not support the impugned order.;