Ram Kewal Singh and Others vs State of U.P. and Another

Amar Saran, J.—Heard learned Counsel for the applicants, learned Counsel for the opposite party No. 2 and the learned A.G.A.

An order dated 2.12.2005, passed by the Additional Sessions Judge, F.T.C. 1, Mau, in S.T. No. 179 of 2002, has been challenged by means of this application whereby the learned Additional Sessions Judge F.T.C. 1, Mau allowed the application of the informant Virendra Pratap u/s 319, Cr. P.C. after his examination-in-chief and summoned the applicants in a case under Sections 302, 147, 148 and 149, I.P.C.

A counter-affidavit was filed in this case, which was served on the applicants on 27.2.2006 today. He prays for time to file rejoinder-affidavit. It is disallowed.

On the perusal of the impugned order, I find that the applicants were named in the F.I.R., and also in the statements of the witnesses u/s 161, Cr. P.C. Thereafter, after the examination-in-chief of the informant, the applicants have been summoned as above.

No doubt, learned Counsel for the applicants contended that as the informant is not an eye-witness and that one of the injured witnesses Premshila has not named the applicants Ram Kewal Singh, Vijay, Amar Jeet and Shashi Kant, on that basis the Investigating Officer submitted a final report. However, I find that in the 161, Cr. P.C. statement of another injured witness Rajesh the applicants were clearly named, but I am only alluding to this fact because learned Counsel for the applicants had submitted that no injured had named the applicants in the Section 161, Cr. P.C. statement. Although such facts are not of much consequence as statements of the witnesses u/s 161, Cr. P.C. cannot form the material for summoning an accused u/s 319, Cr. P.C. but order for the same has to be passed on the basis of evidence recorded in Court.

It is next argued that it is mandatory to cross-examine the witness before a summoning order is passed. I have considered the latest authorities in the case of Crl. Misc. Application No. 2355 of 2008, Parmal v. State of U.P. and Anr. Crl. Misc. Application No. 2355 of 2008, decided on 19.2.2008, wherein I have held relying on the decisions of Apex Court in Rakesh v. State of Haryana AIR 2001 SC 252: 2001 (2) ACR 1609 and Rajendra Singh v. State of U.P. 2007 (7) SCC 378: 2007 (3) ACR 2696 that there must be material for the Court to exercise its judicial discretion and there is no absolute restriction that even if the evidence-in-chief discloses prima facie case, an accused cannot be summoned u/s 319, Cr. P.C. until the witness is cross-examined.

In this view of the matter, I find no force in this application. It is rejected.

Stay order, which was granted as far back on 12.1.2006 is vacated.

As this case u/s 302, I.P.C. has remained pending for long period of time, I direct that the Court concerned shall conclude the trial within three months of the filing of the certified copy of this order.

However, if the applicants appear in the aforesaid case before the Court concerned within four weeks and apply for bail, their prayer for bail shall be disposed of expeditiously.