KANHAIYA Vs. STATE OF UP

JUDGEMENT

(1.) HEARD Sri Brijesh Sahai, learned counsel for the revisionists and learned A.G.A. for the State. By this revision, the revisionists have challenged the order dated 23.07.2012 passed by the Additional Sessions Judge (Ex Cadre), Mahoba in S.T. No.60 of 2010, whereby, in exercise of power under Section 319 Cr.P.C., the revisionists Kanhaiya, Kailash and Rakesh have been summoned to face trial along with the accused Akhilesh and Hasmat, who are already facing trial under Sections 302, 504 and 506 I.P.C.

(2.) THE facts, as they emerge from the record, are that a First Information Report was lodged on 13.05.2010 by the opposite party no.2 against Hasmat (charge sheeted), Kanhaiya (the revisionist no.1), Kailash (the revisionist no.2), Akhilesh (charge sheeted) and Rakesh (the revisionist no.3) with respect to the murder of one Rajesh. As per the allegations in the First Information Report, the accused persons, armed with fire arms, had surrounded the deceased (Rajesh) whereas Akhilesh, from his fire arm, shot at the deceased thereby causing his death. Pursuant to the aforesaid First Information Report, investigation was carried out and the police laid charge sheet against Hasmat and Akhilesh only. During the course of trial, upon recording of the statement of P.W.2, P.W.3, P.W.7 and P.W.8, an application was moved by the prosecution for summoning the revisionists, in exercise of power under Section 319 Cr.P.C. THE Additional District Judge (Ex Cadre), Mahoba by his order dated 17.05.2012 rejected the said application. Challenging the order of rejection, Smt. Sonia (the wife of the deceased), who was also examined as P.W.3, filed Criminal Revision No.1795 of 2012 before this Court. This Court by its order dated 31.05.2012 set aside the order dated 17.05.2012 and remanded the matter back to the court below to reconsider the same, strictly in accordance with law. After reconsidering the matter, the court below has summoned the revisionists by its order dated 23.07.2012.

(3.) AS regards the second submission of the learned counsel for the revisionists, I am of the view that when the order dated 17.05.2012 was set aside, the fresh exercise of power by the court below for summoning the revisionist would not amount to review of its order. Accordingly, this contention also has no force. The third contention of the learned counsel for the revisionist that since the statements of the witnesses were not consistent with their statements recorded during the course of investigation, therefore, should not have been relied upon, cannot be accepted, at this stage. It is settled law that the exercise of power under Section 319 Cr.P.C. is to be on the basis of the evidence led during the course of trial. AS the court below has drawn its satisfaction on the basis of the evidence led during the course of trial, the order passed by the court below cannot be faulted on that ground.