SHIV PRATAP SINGH Vs. STATE OF U P

JUDGEMENT

(1.) THIS appli cation has been filed by the applicants Shiv Pratap Singh, Smt. Kalpana, Smt. Kamini and Indra Kumar with a prayer to quash the proceedings of S.T. No. 259 of 2006 (State of U.P. v. Sarjoo and others) under section 302 IPC pending in the Court of learned Addl. Sessions Judge/F.T.C.-II, Mainpuri including the order dated 6.9.2008 passed by learned Addl. Sessions Judge/F.T.C.-II, Mainpuri whereby the applicants have been summoned in exer cise of powers conferred under section 319 Cr.P.C. to face the trial for the offence punishable under sections 498-A, 304-B, 120-B IPC and section 3/4 D.P. Act.

(2.) THE facts in brief of this case are that the FIR of this case has been lodged by the applicant Shiv Pratap Singh at P.S. Bewar, District Mainpuri on 9.6.2006 at 3.10 A.M. against unknown persons in respect of the incident which had occurred on 9.6.2006 at about 2.00 A.M. in case crime No. 276 of 2006 under section 302 IPC. Af ter investigation of this case the charge-sheet dated 30.6.2006 has been submitted against Sarjoo and Akhilesh under section 302 IPC in which the applicants are witnesses. After submission of the charge-sheet the learned Magistrate concerned has taken the cognizance, thereafter the case has been committed to the Court of ses sions which is pending in the Court of learned Addl. Sessions judge/F.T.C.-II vide S.T. No. 259 of 2006 in which the statement of the applicants Shiv Pratap Singh and Km. Kamini have been recorded as P.W. 1 and P.W. 2 respectively. During pendency of the trial the application under sections 232 and 311 Cr.P.C. was filed by O.P. No. 2 Om Narayan Singh with a prayer to sum mon him and his father Udit Narayan Singh as witnesses on which the Trial Court passed the order dated 24.5.2007 'that at this stage no order is required on the application and it shall be open for the Court to summon any witness which the Court thinks proper and just in the interest of justice at the appropriate stage. THE application is disposed of accordingly at this stage.' THEreafter the O.P. No. 2 Om Narayan Singh again moved an application after closing the evidence of prosecution with a prayer that for the just decision of the case he along with his father may be summoned as witnesses of the alleged in cident, the same was allowed by the Trial Court vide order dated 10.1.2008 and O.P. No. 2 Om Narayan Singh and his father Udit Narayan Singh were summoned as Court witnesses. THE order dated 10.1.2008 passed by the Trial Court was challenged by way of filing the criminal revision be fore this Court, the same was dismissed. THE statements of O.P. No. 2 Om Narayan Singh and his father Udit Narayan Singh have been recorded by the Trial Court as C.W. 1 and C.W. 2 respectively, thereafter, the application dated 21.4.2008 under sec tion 319 Cr.P.C. has been filed by O.P. No. 2 Om Narayan Singh, the same has been allowed by the Trial Court on 6.9.2008 and the applicants have been summoned to face the trial for the offence punishable under sections 498-A, 304-B, 120-B IPC and section 3/4 D.P. Act.

(3.) IT is further contended that ac cused Sarjoo was having love affairs with Km. Vandana, she was student of B.A. Part-I and she was residing at the house of the applicant Shiv Pratap Singh. IT was only known to the deceased and Km. Kamini, thereafter Km. Vandana was shifted to her parents' house by the deceased, in the night of the alleged incident when applicant No. 1 Shiv Pratap Singh, applicant No. 4 Indra Kumar and others had gone to perform the Tilak ceremony of her daughter Km. Kamini, the accused Sarjoo and Akhlesh came at the house of the deceased where some quarrel has taken place between the de ceased and Sarjoo in the presence of Km. Kamini, thereafter they committed the murder of the deceased but the learned Trial Court has committed the manifest error by not relying upon the testimony of the applicant Km. Kamini at this stage and relying upon the testimony of C.W.1 and C.W.2 for the purpose of exercising pow ers conferred under section 319 Cr.P.C, because the C.W.1 & C.W.2 have come with different version at a belated stage which is illegal because the powers under section 319 Cr.P.C. cannot be exercised in a routine manner, it is a well settled law that powers under section 319 Cr.P.C. should be exercised sparingly only for compelling reasons because such powers are extra or dinary and discretionary. The learned Trial Court without applying the judicial mind and without appreciating the facts and cir cumstances of the case has exercised the powers under section 319 Cr.P.C. in a rou tine manner. The impugned order dated 6.9.2008 is illegal and is liable to be set aside and proceedings pending against the applicants may be quashed.