Irshad and Others vs State of U.P. and Another

C.A. Rahim, J.—A first information report was lodged against seven accused persons on the allegation that they being armed with deadly weapons entered into the house and assaulted the inmates for which all the inmates numbering about 8-9 persons were injured. They assaulted with an intention of committing murder. Firing was done but unfortunately it did not hit anybody. On the basis of that first information report a case was registered. After completion of the investigation charge-sheet was submitted against the two persons, namely, Jamshed and Ikramullah and rest of the persons were discharged. The case was committed to the Court of Sessions. But after examination of the complainant an application was filed u/s 319, Cr. P. C. for issuing summon to six accused persons (revisionist before me) and the same was allowed by the learned Sessions Judge., The present revision has been filed against the said order passed by the learned IX Additional Sessions Judge, Muzaffarnagar on 27-8-1993 in Sessions Trial No. 366 of 1992.

Learned counsel for the revisionists has submitted that a counter case has been started in which two persons on the side of the accused persons were also injured. The witnesses in this case are the accused persons of that case. It has also been submitted that the order of summoning was issued on the application of the complainant and without allowing any chance to the accused persons to cross examine the witnesses. Learned counsel for the respondent No. 2 has submitted that the learned. Sessions Judge has got immense power to issue summons u/s 319, Cr.P.C. and he has done it after finding prima facie case against the applicants. He has referred the decision reported in Margoobul Hasan v. State of U.P. . Relying on number of decisions of Hon''ble Supreme Court the learned Judge has held that Section 319, Cr. P. C. applies not only to the Magistrate but also to the Sessions Court. Cognizance is to be taken of the offence and not offender. So it is incidental to summon a additional persons dropped during investigation by the police. The contention of the learned counsel for the revisionists cannot be sustained that cross-examination should be a condition precedent prior to summoning all the additional accused persons named in the first information report but subsequently dropped during investigation. Section 319, Cr. P. C. provides jurisdiction to the trial Court to include some other persons when prima facie case against whom is established. I do not consider that cross-examination of such witnesses is required at this stage. Provisions of Section 319, Cr. P. C. is alike to Section 202, Cr. P. C. The difference being that u/s 319, Cr. P. C. jurisdiction of the trial Court can be invoked when prima facie case against some other persons besides accused persons is established. u/s 200, Cr. P. C. a Magistrate exercises its jurisdiction at the out set to find out whether prima facie case is there or not. But there is one similarity that in both situations persons against whom trial Court or Magistrate is proceeding are not before the said Court hence the question of cross-examination does not arise.

Another submission of the learned counsel for the revisionists is that the witnesses are interested witnesses towards the prosecution and inimically disposed of towards the accused as they have been figured as an accused in the counter case. The said plea may be raised and considered during the trial while assessing the evidence of the witnesses concerned. This is the stage where evaluation of the evidence is neither possible nor desirable.

The contention of the learned counsel for the revisionists fails. The revision is, therefore, dismissed. The stay order granted on 17-9-1993 is hereby vacated.