ISHTIYAQ Vs. STATE OF UTTAR PRADESH AND ANR.

JUDGEMENT

(1.) HEARD learned Counsel for the applicant and learned A.G.A. for the State Respondent.

(2.) SUPPLEMENTARY affidavit has been filed on behalf of the applicant today in Court, which is being taken on record in which statement of P.W. 1 and P.W.2 has been appended.

(3.) LEARNED Counsel for the applicant has contended that the applicant has been summoned on an application under Section 319 Code of Criminal Procedure when even the injured witness has not stated anything about the complicity of the applicant in the commission of the alleged offence, as such, orders impugned dated 29.11.2010 and 15.12.2010 be set aside. In support of his contention learned Counsel for the applicant has relied upon judgment of Hon'ble Apex Court in the case of Sarabjit Singh and Anr. v. State of Punjab and another, reported in, (2010) 2 SCC 141, in which Hon'ble Apex Court has held that 'an order under Section 319, should not be passed only because first informant or one of the witnesses seeks to implicate other persons(s) -sufficient and cogent reasons are required to be assigned by court so as to satisfy ingredients of Section 319.' Learned Counsel for the applicant has also relied upon judgment of Hon'ble Apex Court in the case of Hardeep Singh v. State of Punjab and Ors. reported in, (2010) 2 SCC 355, in which Hon'ble Apex Court has held that 'power under Section 319 can be exercised only if the court is satisfied that the accused summoned in all likelihood would be convicted.' Leaned counsel for the applicant has further relied upon judgments in the case of Krishnappa v. State of Karnataka, reported in, (50) 2004 ACC 343 and in the case of Mohd. Shafi v. Mohad. Rafiq and another, reported in, (58) 2007ACC 254. Learned Counsel for the applicant has also relied upon the judgment of Hon'ble Apex Court reported in : 2009 (2) SCC 696 (Lal Suraj alias Suraj Singh another v. State of Jharkhand), in support of his contention. Learned Counsel for the applicant has further relied upon a decision of Hon'ble Apex Court reported in, (65) 2009 ACC 971 (Ram Singh and Ors. v. Ram Niwas and another), in which Hon'ble Apex Court has held that in the event, it appears from the evidence that any person, not being an accused, has committed any offence for which he could be tried together with the accused, the court may proceed against him for the offence which he appears to have committed. It has been further held that the provision of Section 319, Code of Criminal Procedure confers an extraordinary power upon a court to summon a person who, at the relevant time, was not being tried as an accused, subject, of course, to fulfilment of the condition that it appears to the court that he had committed an offence. A finding to that effect must be premised on the evidence that had been brought on record.