Ravindra Singh, J. - (1.) THIS appli cation has been filed by the applicants Shiv Pratap Singh, Smt. Kalpana, Smt. Kamini and Indra Kumar with a prayer to quash the proceedings of S.T. No. 259 of 2006 (State of U.P. v. Sarjoo and others) under section 302 IPC pending in the Court of learned Addl. Sessions Judge/F.T.C.-II, Mainpuri including the order dated 6.9.2008 passed by learned Addl. Sessions Judge/F.T.C.-II, Mainpuri whereby the applicants have been summoned in exer cise of powers conferred under section 319 Cr.P.C. to face the trial for the offence punishable under sections 498-A, 304-B, 120-B IPC and section 3/4 D.P. Act.
(2.) THE facts in brief of this case are that the FIR of this case has been lodged by the applicant Shiv Pratap Singh at P.S. Bewar, District Mainpuri on 9.6.2006 at 3.10 A.M. against unknown persons in respect of the incident which had occurred on 9.6.2006 at about 2.00 A.M. in case crime No. 276 of 2006 under section 302 IPC. Af ter investigation of this case the charge-sheet dated 30.6.2006 has been submitted against Sarjoo and Akhilesh under section 302 IPC in which the applicants are witnesses. After submission of the charge-sheet the learned Magistrate concerned has taken the cognizance, thereafter the case has been committed to the Court of ses sions which is pending in the Court of learned Addl. Sessions judge/F.T.C.-II vide S.T. No. 259 of 2006 in which the statement of the applicants Shiv Pratap Singh and Km. Kamini have been recorded as P.W. 1 and P.W. 2 respectively. During pendency of the trial the application under sections 232 and 311 Cr.P.C. was filed by O.P. No. 2 Om Narayan Singh with a prayer to sum mon him and his father Udit Narayan Singh as witnesses on which the Trial Court passed the order dated 24.5.2007 'that at this stage no order is required on the application and it shall be open for the Court to summon any witness which the Court thinks proper and just in the interest of justice at the appropriate stage. THE application is disposed of accordingly at this stage.' THEreafter the O.P. No. 2 Om Narayan Singh again moved an application after closing the evidence of prosecution with a prayer that for the just decision of the case he along with his father may be summoned as witnesses of the alleged in cident, the same was allowed by the Trial Court vide order dated 10.1.2008 and O.P. No. 2 Om Narayan Singh and his father Udit Narayan Singh were summoned as Court witnesses. THE order dated 10.1.2008 passed by the Trial Court was challenged by way of filing the criminal revision be fore this Court, the same was dismissed. THE statements of O.P. No. 2 Om Narayan Singh and his father Udit Narayan Singh have been recorded by the Trial Court as C.W. 1 and C.W. 2 respectively, thereafter, the application dated 21.4.2008 under sec tion 319 Cr.P.C. has been filed by O.P. No. 2 Om Narayan Singh, the same has been allowed by the Trial Court on 6.9.2008 and the applicants have been summoned to face the trial for the offence punishable under sections 498-A, 304-B, 120-B IPC and section 3/4 D.P. Act. Being aggrieved from the order dated 6.9.2008 the applicants have filed this application with a prayer to quash the or der dated 6.9.2008 by invoking the inherent powers conferred under section 482 Cr.P.C. Heard Sri Kamal Krishna and Sri Ghanshyam Das, Counsel for the appli cants and learned A.G.A. for the State of U.P. and perused the record. It is contended by learned Counsel for the applicants that in the present case deceased Shiwani, the w/o applicant Indra Kumar has been killed in the night of 8/9.6.2006, inside the house of the appli cants its FIR has been lodged by her father-in-law the applicant Shiv Pratap Singh, during the investigation the I.O. collected the evidence to show that Sarjoo and Akhlesh have committed the alleged offence. During investigation the statements of the applicants have been recorded as witness, thereafter the charge- sheet has been sub mitted against Sarjoo and Akhlesh in which the applicants have been made witnesses even during the trial also the statements of applicant No. 1 Shiv Pratap Singh and applicant No. 3 Km. Kamini have been re corded as P.W. 1 and P.W. 2 respectively, they have supported the prosecution story, the names of the accused Sarjoo and Ak hlesh have been disclosed by the applicant Kamini in her statement recorded under section 161 Cr.P.C. and the weapon by which the neck of the deceased was cut has been recovered at the pointing out of the accused Sarjoo. The deceased has been killed by the accused Sarjoo along with his friend Akhlesh only because she was hur dle in the love affairs of accused Sarjoo and Vandana, the cousin sister of the deceased. The statements of the applicant Shiv Pratap Singh and applicant Kamini have been re corded before the Trial Court, they have supported the prosecution story. Applicant Shiv Pratap Singh is not eye-witness, whereas applicant Kamini is eye-witness of the alleged incident. After lodging the FIR of this case the application under section 156(3) Cr.P.C. was filed by the O.P. No. 2 against the applicants in the Court of learned Magistrate concerned, the same was rejected on 26.7.2006, the order dated 26.7.2006 was challenged by O.P. No. 2 by way of filing the criminal revision, the same was also dismissed by learned Addl. Sessions Judge, Mainpuri on 23.2.2007. The O.P. No. 2 Om Narayan Singh and his fa ther Udit Narayan Singh are not eye witnesses of the alleged incident, they did not come forward to record their state ments before the I.O., during investigation their statement have not been recorded, if the O.P. No. 2 was having any grievance the complaint would have been lodged af ter dismissal of the application under sec tion 156(3) Cr.P.C. but no such complaint has been lodged. It is further contended that after closing the evidence of the prose cution without any proper reason, the O.P. No. 2 Om Narayan Singh and his father Udit Narayan Singh have been summoned as Court witnesses and their statements have been recorded as C.W. 1 and C.W. 2 respectively who have given a different version accusing the witnesses of this case, no reliance can be placed on the testimony of such witnesses. The Trial Court has ille gally entertained the application under section 319 Cr.P.C. filed by O.P. No. 2 be cause it has not been filed by Public Prose cutor of this case, thereafter it has been ille gally allowed by summoning the appli cants in exercise of powers conferred under section 319 Cr.P.C.
(3.) IT is further contended that ac cused Sarjoo was having love affairs with Km. Vandana, she was student of B.A. Part-I and she was residing at the house of the applicant Shiv Pratap Singh. IT was only known to the deceased and Km. Kamini, thereafter Km. Vandana was shifted to her parents' house by the deceased, in the night of the alleged incident when applicant No. 1 Shiv Pratap Singh, applicant No. 4 Indra Kumar and others had gone to perform the Tilak ceremony of her daughter Km. Kamini, the accused Sarjoo and Akhlesh came at the house of the deceased where some quarrel has taken place between the de ceased and Sarjoo in the presence of Km. Kamini, thereafter they committed the murder of the deceased but the learned Trial Court has committed the manifest error by not relying upon the testimony of the applicant Km. Kamini at this stage and relying upon the testimony of C.W.1 and C.W.2 for the purpose of exercising pow ers conferred under section 319 Cr.P.C, because the C.W.1 & C.W.2 have come with different version at a belated stage which is illegal because the powers under section 319 Cr.P.C. cannot be exercised in a routine manner, it is a well settled law that powers under section 319 Cr.P.C. should be exercised sparingly only for compelling reasons because such powers are extra or dinary and discretionary. The learned Trial Court without applying the judicial mind and without appreciating the facts and cir cumstances of the case has exercised the powers under section 319 Cr.P.C. in a rou tine manner. The impugned order dated 6.9.2008 is illegal and is liable to be set aside and proceedings pending against the applicants may be quashed. In reply of the above contentions, it is submitted by learned A.G.A. that in the present case the deceased Shiwani was wife of applicant Indra Kumar and she was daughter-in-law of the applicant Shiv Pratap Singh and Smt. Kalpana and she was sister-in-law of the applicant Km. Kamini. She has been killed in the night of 8/9.6.2006 inside the house of the appli cants. It is alleged that at the time of al leged incident the applicant Shiv Pratap Singh and Indra Kumar were not present inside the house, they had gone to perform the Tilak ceremony of the applicant Km. Kamini, when they came back to the house in the same night and saw the deceased in a dead condition, the applicant No. 1 lodged the FIR against unknown person. Subsequently the applicant Km. Kamini disclosed the names of accused Sarjoo and Akhlesh, she claimed herself to be eye witness and made specific allegation of committing the murder against the accused Sarjoo and Akhlesh. It shows that after great thought and consultation the prose cution story was set up shifting the liability on Sarjoo and Akhlesh so that the skin of the applicants may be saved from the criminal liability. The deceased was mur dered in the presence of Km. Kamini and Smt. Kalpana as alleged by the prosecution even then the names of Sarjoo and Akhlesh who were well known have not been dis closed by them. It was also one of the cir cumstance showing that the applicants have tried to conceal the real facts of this case. The applicant No. 1 Shiv Pratap Singh was serving in the police, on account of this reason the FIR was lodged against un known persons and FIR of O.P. No. 2 had not been lodged, thereafter he moved an application to S.S.P. Mainpuri making alle gation against the applicants even then his FIR was not registered, during investiga tion also the statements of the O.P. No. 2 and his family members have not been re corded by the I.O. whereas it was a known fact that death of the deceased was unnatu ral which have taken place within seven years of her marriage because the marriage of the deceased was solemnized with the applicant Indra Kumar on 22.6.2004 and she has been killed in the night on 8/9.6.2006, she had been killed within two years of her marriage. During pendency of the trial also the O.P. No. 2 moved an ap plication under sections 332 and 311 Cr.P.C. with a prayer that he along with father may be summoned for recording their statements, the same was kept pend ing by learned Trial Court. Again the O.P. No. 2 moved an application of the same nature after closer of the prosecution evidence, the same was allowed by learned Trial Court vide order dated 10.1.2008, it was challenged before the High Court by way of filing criminal revision, the same was dismissed and the order dated 10.1.2008 was affirmed. The statements of O.P. No. 2 Om Narayan Singh and Udit Narayan Singh have been recorded as C.W.I and C.W.2 who have made the alle gation against the applicants. According to their statements the deceased has been killed on account of non-fulfilment of de mand of dowry in a pre-planned manner. The allegations constituting the offence have been made by the C.W. 1 Om Narayan Singh and C.W. 2 Udit Narayan Singh. The learned Trial Court has not committed any error in summoning the applicants for the offence punishable under sections 498-A, 304-B, 120-B IPC and sec tion 3/4 D.P. Act. It is further submitted that it is not material that the applicant Shiv Pratap Singh and applicant Km. Kamini have deposed the evidence as prose cution witnesses before the Trial Court and the allegation has been made at belated stage because O.P. No. 2 was not heard by the authorities concerned in respect of his grievance, there is no illegality in the prosecution of the applicants. Therefore, the prayer for quashing the proceedings of S.T. No. 259 of 2006 including the im pugned order dated 6.9.2008 passed by the Trial Court may not be quashed. The pres ent application is devoid of merit, the same may be dismissed.;