Ajay vs State of UP and Another

Amar Saran, J.—Heard Learned Counsel for the applicant and learned AGA. This application has been filed for challenging order dated 10.12.2007 passed by Addl. Sessions Judge, Court No. 2, Jaunpur, summoning the application u/s 319 Cr.P.C. in ST No. 492 of 2006 (State v. Jasram), under Sections 302 and 307 IPC, PS Nangal, District Bijnor.

The background of this application is that an incident took place in village Chandok, PS Nangal, District Bijnor, on 17.10.2005 at about 5 pm. The applicant and his brother Jasram invited some persons to their house for drinking liquor. Jasram was contesting for the post of BDC member. The witness Mitthan and Ors. were supporting the other side. It is stated that as a result of consumption of liquor which was alleged to be poisoned, six persons, namely, Jabar Singh, Kesari, Om Prakash, Chaman, Matloo and Neetu died in Bijnor''s Govt. Hospital and 25 persons were said to be grievously hurt as a result of the poisoned liquor. PW 2, Harish Chandra lost his eye-sight.

As the charge-sheet had only been submitted against Jasram, an application u/s 319 Cr.P.C. was moved after the evidence of PW 1, Mitthan, which was allowed by the Addl. Sessions Judge, Court No. 2, Bijnor, on 20.1.22007 and an order was passed summoning the applicant also for trial under Sections 307 and 302 IPC. The said order dated 20.1.2007 was challenged before the High Court by the applicant in an earlier application u/s 482 Cr.P.C. in which it was contended that as the investigating officer had found the complicity of the applicant to be forged and had not submitted any charge-sheet against him, reliance could not be placed on the evidence of PWs 1 and 2. However, this Court, observing that there was no illegality or impropriety in the said order, had declined to interfere by its order dated 6.2.2004 and only directed that if the applicants surrender before the court concerned within 3 weeks from the date of filing of the copy of the order, his prayer for bail should be expeditiously decided by the court below.

The applicant had, thereafter, preferred a Spl. Leave Petition No. 2417 of 2007 against the order of the High Court before the Apex Court. The Apex Court was pleased to allow the said application on the ground that in his cross-examination PW 1, Mitthan, had denied making any statement to the investigating officer and he simply claimed to have made the said statement in Court. It was also observed by the Apex Court that the witness could not give any reason why his cross-examination was deferred and another witness Harish Chandra was examined who had also named the applicant, his cross-examination was also deferred. The Supreme Court observed that the learned Sessions Judge had departed from the underlying principles for exercising jurisdiction on an application u/s 319 Cr.P.C. and referred to the decision of Municipal Corporation of Delhi Vs. Ram Kishan Rohtagi and Others, However, the Apex Court had observed that, "this order shall not preclude the learned Sessions Judge from applying his mind afresh after prosecution has examined other witnesses."

Thereafter, after the examination of the other witnesses another application (Ext. Kha 45) was moved by the prosecution u/s 319 Cr.P.C. on the ground that the examination (including cross-examination) of all the witnesses (i.e. PWs 1 to 10) had been completed and that the witnesses PW 1, Mitthan, PW 2 Harish Chandra and PW 3 Kali Ram had specifically mentioned in their statements that the applicant Ajay was also involved in the commission of the crime. Thereafter, after a detailed referece to the evidence and after noting that the cross-examination of the three witnesses had also been completed, and after referring to the decisions of the Apex Court, inter alia, in Municipal Corporation of Delhi Vs. Ram Kishan Rohtagi and Others, Kishun Singh and Others Vs. State of Bihar, Rakesh v. State of Haryana 2001 CAR 460 Joginder Singh and Anr. v. State of Punjab and Ors. (16) 1979 ACC 43 and Michael Machado and Ors. v. Central Bureau of Investigation and Ors. 2000(2) JIC 5 (SC) the Addl. Sessions Judge, Court No. 2, Bijnor, passed an order dated 10.12.2007 summoning the applicant again u/s 319 Cr.P.C. This order is presently under challenge by means of the present application.

In my view, it cannot be said that the Sessions Judge had committed any illegality in passing the aforesaid order. The case of the applicant stands on virtually the same footing as the case of Jasram so far as the allegation of the witnesses with regard to the act of giving the allegedly poisoned liquor is concerned. Even in their cross-examination, the witnesses have not been suggested that the applicant was not named earlier before the investigating officer and Ors. and only Jasram was named and even to PW 1 the suggestion was that he had not given any statement prior to his evidence in court but the suggestion was made that he had made any distinction between the case of charge-sheeted accused, Jasram and the case of the applicant.

Likewise, PW 2, Harish Chandra, and PW 3, Kali Ram, deposed to both the applicant and the charge-sheeted accused Jasram offering liquor to the deceased and the injured and there was no justification about there being any distinction in the cases of the applicant and the charge-sheeted accused Jasram. Again, if some of the witnesses have turned hostile and they have stated that they partook of liquour in the houses of the other candidates, or because in the FIR lodged by Shyam Singh @ Babbey, none was named, that would not afford a reason for refusing to allow the application u/s 319 Cr.P.C. against the applicant alone, when no challenge was being made to the trial of the other charge-sheeted accused Jasram.

Even otherwise also, as 6 persons died and 25 persons received grievous hurt, allegedly as a result of consuming the liquor given by the applicant and Jasram, it would serve the interest of justice if the trial is allowed to take place against the applicant and Jasram. Whether there is any substance in the points raised by the defence alluded to above can be better adjudicated at the trial, and there no ground is made out for short circuiting the regular process of trial in this case under Sections 302 and 307 IPC.

I, therefore, find no illegality in the impugned order dated 10.12.2007, summoning the applicant u/s 319 Cr.P.C. The application is accordingly rejected.

However, in the circumstances of the case, I direct that the trial court shall endeavour to conclude the trial of this case very expeditiously.