SHYAM BABU Vs. STATE OF U P

JUDGEMENT

(1.) SAROJ Bala, J. This criminal revision is directed against the order dated 2. 11. 2002 passed by the IIIrd Additional and Sessions Judge, Court No. 3 Aligarh in Session Trial No. 1306 of 1999, State v. Kallu and others, whereby allowing an application moved by the prosecution under section 319 of Code of Criminal Procedure (hereinafter referred to as the Code) and summoning the revisionist and one Nahar Singh for facing trial.

(2.) THE background facts are as below : On 28. 3. 1999 at about 4. 30 p. m. revisionist armed with a licensed gun along with co-accused armed with firearms mounted assault by opening fire at the first informant and his father. THE father of the first informant sustained gun shot injuries and died at the spot. THE first informant had a narrow escape. THE First Information Report, was alleged against the revisionist and co-accused. After investigation the revisionist and co-accused Nahar Singh were not charge-sheeted though role of firing from licensed guns was assigned to both of them. THE charge-sheeted co-accused were committed to the Court of Sessions. After framing of charges their trial commenced in S. T. No. 1306 of 1999, State v. Kallu and others, under sections 147, 148, 307, 302, I. P. C. THE eye-witnesses Vinod Kumar (P. W. 1) and Ram Naresh (P. W. 2) in their examination-in-chief supported the manner of incident as narrated in the First Information Report. THE application (29 Kha) was moved by the prosecution for summoning the revisionist and co-accused Nahar Singh for facing trial alongwith co-accused. THE Trial Judge allowed the said application by the impugned order. THE impugned order has been assailed on the grounds that the Court below acted illegally and with material irregularity in exercise of its jurisdiction resulting in miscarriage of justice. THEre is no evidence against the revisionist with regard to his complicity in the murder of first informant's father. THE revisionist was not present at the place of the incident on the date and time of commission of offence. THE Court below has ignored the certificate of Smt. Ram Sakhi Katheriya about presence of revisionist at Narendra Dev Junior High School alongwith local M. L. A. and other supporters of B. J. P.

(3.) THE learned A. G. A. argued that the revisionist was named in the First Information Report and the witnesses in their examination-in-chief as well as in the statement under section 161, Cr. P. C. assigned the overt act of firing from licensed gun to the revisionist and co-accused Nahar Singh.