Sher Singh vs State of U.P. and Mahaveer Singh

Amar Saran, J.—Heard learned Counsel for the applicant and learned Additional Government Advocate.

By means of this application the applicant has prayed for quashing of an order dated 11.1.2008 passed by the learned Additional Sessions Judge/Fast Track Court No. 2, Hathras in S.T. No. 207 of 2006, under Sections 147/302/323 IPC in exercise of powers u/s 319 of the Code of Criminal Procedure.

The impugned order has been passed on the basis of the statement-in-chief of the informant-Mahavir Singh, wherein it is alleged that in the night in question when the informant was sleeping in a room, his two wives and daughter Anju were also sleeping in the verandah. At that time Kirtan was going on in the Temple. After jumping over the roof, the applicant and co-accused Harish Chandra (who has already been charge sheeted) arrived there along with two-three others and Harish Chandra fired on his wife Savitri and also gave him a beating and when he and his another wife raised a hue and cry, then the accused ran away. Savitri died at the spot. The incident is said to be witnessed by his second wife and daughter Anju. There was a dispute with the accused party over land and his nephew Harish Chandra was harassing him over the issue. On this basis the learned Judge reached the conclusion that there was sufficient material for proceeding against the applicant also.

It is argued by the learned Counsel for the applicant that without cross-examination of the witnesses, the FIR could not be lodged.

Reliance has been placed in the case of Lok Ram v. Nihal Singh and Anr. (2006) 3 SCC 532 wherein it has been held by the Apex Court that power to summon an accused should be exercised judicially, having regard to the facts and circumstances of the case, on the basis of evidence adduced before it and not on the basis of material available in the charge sheet or case diary. On that basis the application for summoning the accused u/s 319 Cr.P.C. had been rejected and the Supreme Court approved the order of the High Court directing the trial court to proceed against the appellant by summoning him.

So far as the other decision of the Apex Court in Michael Machado and Anr. v. Central Bureau of Investigation and Anr. 2000 SCC 609 is concerned, in that case after 49 witnesses were examined, who did not utter a single word against any of them, but when evidence of the remaining 3 witnesses was recorded it appeared to the Magistrate that the appellants were also party to the conspiracy, cheating and forgery of valuable securities. The Apex Court observed that fresh examination of the witnesses would be necessitated in the circumstances and hence disapproved the summoning of the accused u/s 319 Cr.P.C. The Court also observed that the power u/s 319 Cr.P.C. should be exercised sparingly.

Here, I find that the application u/s 319 Cr.P.C. was moved at the initial stage itself.

It may also be noted that in the present case the summoning order has not been passed on the basis of material in the case diary, but on the basis of the evidence of examination-in-chief of the informant Mahavir Singh. If some persons come together in the night, one of whom fires on the deceased, at this stage it cannot be said that no trial can proceed against other accompanying accused by applying Section 34 along with Section 302 IPC. Therefore, there is no force in this submission.

Likewise in the case of Municipal Corporation of Delhi v. Ram Kishan Rohtagi and Ors. (20) 1983 ACC 51 so far as the order of summoning one of the accused persons, who was directly involved is concerned u/s 319 Cr.P.C. that was approved, but so far as the order summoning the other co-accused (the Managing Director) it was held that when such evidence would be available the said accused could be summoned.

So far as the case of Mohd. Shafi v. Mohd Rafiq and Ors. (58) 2007 ACC 254is concerned, It was a case where the trial court had not found sufficient evidence for summoning the accused because the witness had stated in that case that he reached the spot on hearing a noise after the incident. Hence the trial court had held that there was no sufficient material for summoning the accused, but the High Court reversed the order of the trial court. In these circumstances, the Supreme Court set aside the order of the High Court, but it did not lay down any absolute proposition that an accused could only be summoned after the witness had been cross-examined.

In the case of Rakesh v. State of Haryana AIR 2001 SC 252 it has been clarified that it is not mandatory to cross-examine the witness before summoning an accused in exercise of powers u/s 319 Cr.P.C.

After examining some of the aforesaid decisions, I have also held in Criminal Misc. Application No. 2355 of 2008 (Parmal v. State of U.P. and Anr.) decided on 19.2.2008 that in every case, it is not mandatory to cross-examine the witnesses before summoning an accused.

In the said case, I have also relied on the recent decision of the Apex Court in Rajendra Singh v. State of U.P. 2007 (7) SCC 378 where again even prior to the cross-examination of the witnesses the accused had been summoned in exercise of powers u/s 319 Cr.P.C. and the order was approved by the Apex Court.

In view of the above, there is no force in this application. It is accordingly rejected.

However, it is provided that if the applicant appears before the court concerned in the aforesaid case and applies for bail, the same shall be considered and decided expeditiously considering the fact that no specific role has been assigned to the applicant.