MUSTAKIM Vs. STATE OF U P

JUDGEMENT

(1.) SHIV Charan, J. The present application has been moved under Section 482, Cr. P. C. for quashing the order dated 24. 10. 2007 passed by Addl. Sessions Judge Court No. 4 Etawah in ST. No. 158/05 under Sections 147,302, IPC.

(2.) A perusal of the documents shows that FIR was lodgedby Mohd. Asif on 20. 5. 2007 at about 9. 45 p. m. against Mustakim applicant and four other accused persons registered at Crime No. 71 of 2005 under Section 147, 302, IPC PS. Ekdil, District Etawah. The matter was investigated by the police and charge-sheet was submitted against the accused persons except the applicant Mustakim. Afterwards the statement of Mohd. Asif P. W. 1 was recorded and on the basis of the statement of examination-in-chief of this witness, application was moved for summoning the applicant Mustakim for the offence under Sections 147 and 302, IPC under Section 319, Cr. P. C. and learned Sessions Judge being satisfied from the evidence of Mohd. Asif summoned the applicant to face trial for the offence and this order passed under Section 319, Cr. P. C. is challenged by this applica tion.

(3.) I have considered all the facts and circumstances of the case. In view of Section 319, Cr. P. C. learned Sessions Judge is fully competent to pass the order of summoning if the Court is satisfied in course of any enquiry and trial for an offence that any person not being the accused had committed any offence for which such persons should be tried together with the accused and such person can be summoned on the basis of the evidence. I agree with this argument of learned Counsel for the applicant that the evidence recorded by the I. O. in the case diary cannot be a basis for passing the order under Section 319, Cr. P. C. Although it is a fact that in the impugned order learned Sessions Judge consid ered the evidence recorded by the I. O. in the case diary during investigation. But learned Sessions Judge also considered the evidence of P. W. 1 recorded in the Court. If this part of the order in which the trial Court placed reliance on the evident recorded by the I. O. in the case diary for the purpose of passing the order under Section 319 Cr. P. C. is to be ignored then whether there is sufficient material before Sessions Judge to pass the order of summoning under this provi sion is to be considered. Because learned Sessions Judge has passed the order under Section 319, Cr. P. C. after recording the statement of Mohd. Asif P. W. I and Sessions Judge has also relied upon the statement of PW. 1 for the puipose of summoning the applicant. The legal matter involved in the present case is as to whether the learned Sessions Judge is satisfied in placing reliance on the state ment of examination-in-chief of P. W. 1, and whether it is the requirement of the law that the entire statement of a witness including cross-examination should be recorded prior to passing the order under Section 319, Cr. P. C. and in that circum stance the statement of such witness should be considered. In this context the learned Counsel for the applicant cited judgment of Hon'ble Apex Court reported in JT 2007 (5) SC 562, Mohd. State v. Mohd. Rafiq and another. The Hon'ble Apex Court held as follows: "12. The Trial Judge, as noticed by us, in terms of Section 319 of the Code of Criminal Procedure was required to arrive at his satisfaction if he thought that the matter should receive his due consideration only after the cross-examination of the witnesses is over, no exception thereto could be taken far less at the instance of a witness and when the State was not ag grieved by the same. "