JUDGMENT Vinod Prasad, J.
1. Criminal Revision No. 1567/03 Devendra Singh v. State of U.P. and Anr. and Criminal Misc. application No. 1703/06 Mangal Singh v. State of U.P. and Anr. arise out of the same criminal proceedings and the questions involved in both the cases are interwoven that the judgment in one ease will affect the judgment in other case, therefore these two eases were clubbed together and are being finally disposed off by this common order.
2. Criminal Revision No. 1567/03 has been preferred by Devendra Singh against the judgment and order dated 04.3.2003 passed by the District Judge, Jalaun at Orai in criminal revision No. 499/02 Mangal Singh v. State of U.P. and Anr., whereby the revisional court has set aside the order dated 19.11.2000 passed by the A C J M Jalaun at Orai in case No. 531/02 and directed him to take cognizance Under Section 191(1)(b) Cr.P.C. against the revisionist. In this criminal revision a counter affidavit along with the stay vacation application has been filed by Mangal Singh respondent No. 2 but no rejoinder affidavit has been filed by revisionist till date. Criminal Misc. Application No. 1703/06 has been filed by Mangal Singh applicant (respondent No. 2 in criminal revision No. 1567'03) with the prayer that the order dated 2.12.2005 passed by Sessions. Judge/Fast Track Court III, Jalaun at Orai, in ST. No. 118/04 State v. Narayan Singh and Anr., be quashed. It is further prayed that the trial court/FTC, III Jalaun at Orai be directed to decide the prosecution"--- application---..." dated 17.12.2004 (annexure 9) by which the prosecution has prayed for summoning Devendra Singh (respondent No. 2 in criminal application No. 1703/06 and revisionist in the criminal revision No. 1567/03) to stand the trial along with other co-accused persons.
3. Factual matrix of the case is that on 17.9.2000 at 5.50 P.M. Mangal Singh informant lodged a FIR (annexure 1) at P.S. Ait, district Jalaun against the three accused persons namely Narain Singh, Devendra Singh (revisionist in criminal revision No. 1567/03 and respondent No. 2 in criminal misc. application No. 1703/06) and Mahendra Singh, Under Section 307/504 IPC. The incident was said to have taken place at the door of the informant on 17.9.2000 at 5 P.M. in which Harish Chandra had received gun shot injuries. Injured Harish Chandra was got medically examined on 17.9.2000 at " P.M. through constable CP 473 of P.S. Ait, in district hospital Orai who had sustained and 14 injuries, out of which 13 were caused by gunshot. His x-ray report, annexure 3, indicates presence of radio opaque metallic density shadows confirming that he did receive fire arm injuries The x-ray of the injured Harish Chandra was got done on 22.9.2000 by Radiologist in district hospital Orai. The injured was admitted in Medical College Jhansi on 18.9.2000 and was discharged on 19.9.2000 for further treatment at Dr. Rajendra Prasad Center for Ophthalmic Sciences. New Delhi. Harish Chandra was admitted on 18.10.2000 in the aforesaid center and was operated upon for his eyes. He was discharged on 21.10.2000.
4. The Investigating Officer during the course of investigation recorded the statement of the informant, injured and other eyewitnesses who all supported the prosecution version. Subsequently, the investigation was transferred and the new Investigating Officer, recorded the statements of certain other witnesses who exonerated Devendra Singh. I.O. relying upon the statements of the aforesaid witnesses submitted the charge sheet only against two accused Narayan Singh and Mahendra Singh but having found the implication of Devendra Singh false did not charge sheeted him. Against the non charge sheeting of Devendra Singh informant Mangal Singh filed a protest petition which was rejected by the CJM, Jalaun at Orai on 29.11.2003, annexure 6 to the affidavit. The order dated 29.11.2002, passed by CJM, Jalaun at Orai was challenged in criminal revision No. 499/02 before the Sessions Judge, Jalaun at Orai, who vide his order dated 04.3.2003 (annexure 7), set aside the order of CJM dated 29.11.2002 and directed the Magistrate to take cognizance against the accused Devendra Singh also Under Section 190(1)(b) Cr.P.C. and with the aforesaid observation he remanded back the case to the lower court. Order dated 4.3.2003 passed by learned Sessions Judge, Jalaun at Orai was challenged by the accused Devendra Singh in criminal revision No. 1567/03 before this Court which revision was admitted on 5.6.2003 and the impugned order dated 4.3.2003 passed by learned Sessions Judge, Jalaun at Orai was stayed. Mangal Singh, respondent no 2 in the aforesaid revision filed a counter affidavit along with the stay vacation application on 4.8.2003 but no rejoinder affidavit has been filed till date by Devendra Singh revisionist.
5. Meanwhile the case of the two accused persons, namely; Narayan Singh and Mahendra Singh was committed to the court of Sessions and was registered as S.T. No. 118/04 State v. Narain Singh and Anr. and is now pending before the Additional district and Sessions Judge Fast Track Court No. Ill, Jalaun at Orai. In the aforesaid Sessions Trial informant Mangal Singh was examined in chief as P.W. 1. In his statement (annexure 8 to the affidavit filed in support of the criminal misc. application 1703/06), he has categorically stated that on the date, time and place of incident Narayan Singh, Mahendra Singh and Devendra Singh came at the spot. Out of whom Narayan Singh and Mahendra Singh were armed with a country made pistol and Devendra Singh was armed with a gun. No sooner their arrival, they started hurling abuses on the informant and others and, on the instigation of Narayan Singh, all three of them opened fire on the informant and other persons injuring informant and Harish Chandra. Accused persons made then escape good by threatening. The said incident was witnessed by Devendra Smtih. Kaushal Kishor and Mahendra Singh. He proved the FIR written by him as paper No. Ka 5, which was exhibited as Ex. Ka 1 He further stated that they were medically examined at district hospital Oral, as no doctor was available in the hospital at Ait. Thereafter Harish Chandra injured was sent to medical college Jhansi and subsequently, to Delhi for treatment.
6. At this stage, the prosecution filed an application Under Section 319 Cr.P.C on 17.12.2004 (annexure 9 to the criminal misc. application No. 1703/06) for summoning Devendra Singh to stand the trial alongwith the other co-accused persons. Against the said application an objection was filed by Narayan Singh accused. The trial court/FTC III Jalaun at Orai (to whom case was transferred subsequently) ordered on 2.12.2005 that, because of the pendency of the revision filed by Devendra Singh, being criminal revision No. 1567/03, in this Court, the summoning of Devendra Singh is differed till an order is obtained from the High Court. The trial court did not pass any order of summoning on the aforesaid application.
7. Aggrieved by the aforesaid postponement of summoning of accused Devendra Singh by the trial court vides its order dated 2.12.2005 (annexure 11 to the criminal misc. application No. 1703/06). Mangal Singh has filed criminal misc. application No. 1703/06.
8. I have heard Sri D.P. Singh Advocate, learned Counsel for the applicant and Sri M.C. Chaturvedi, learned Counsel for Devendra Singh and learned AGA at great length and have gone through the material on record.
9. Sri M.C Chaturvedi, learned Counsel for Devendra Singh contended that there is false implication of Devendra Singh in the case and the order passed by the learned Sessions Judge, Jalaun at Orai, in Criminal Revision No. 499/02 Mangal Singh v. state of U.P. and Anr. is patently illegal. However, he could not point out any illegality into the order dated 4.3.2003, passed by the Sessions Judge, Jalaun at Orai. Consequently, the aforesaid criminal revision No. 1567/03 is dismissed as being merit less and impugned order dated 4.3.2003. passed by the Sessions Judge, Jalaun at Orai in criminal revision no 499/02. Manual Singh v. State of U.P. and Anr., by which Devendra Singh revisionist has been ordered to be summoned by the Sessions Judge is hereby confirmed.
10. Resultantly, criminal misc. application No. 1703/06 deserves to be allowed. The order dated 2.12.2005 passed by the Additional Sessions Judge/FTC III Jalaun at Orai in S.T. No. 118/04 State v. Narayan Singh and Anr., annexure 11 to the criminal misc. application No. 1703/06, is set aside and the trial court /FTC III Jalaun at Oral is directed to pass a reasoned order on the application of prosecution Under Section 319 Cr.P.C. within a period of a week from today in accordance with law.
11. Criminal Revision No. 1567/03 Devendra Singh v. State of U.P. and Anr. is dismissed. Criminal Misc. Application No. 1703 of 2006 Mangal Singh v. State of U.P. and Anr. is allowed.
12. Let a copy of this order be also kept on the record of Criminal Revision No. 1567/2003 Devendra Singh v. State of U.P.