JUDGMENT Amar Saran, J.
1. Heard Sri SPS Raghav, learned Senior Counsel for the applicant, Sri MK Misra learned Counsel for opposite party No. 2 and learned AGA. This application has been filed praying for setting aside the impugned order dated 28.1.2008, passed by Addl. Sessions Judge/FTC No. 4, Muzaffar Nagar in ST No. 1127 of 2007: State v. Satish and Ors., by which the applicant has been summoned in a case under Section 307 IPC in exercise of powers under Section 319 Cr.P.C.
2. It has been contended by the learned Counsel for the applicant that in this case the FIR was filed on 4.12.2000. Alter investigation a final report was submitted on 29.3.2001. However, re-investigation was ordered due to pressure of opposite party No. 2, but a final report was submitted the second time on 15.1.2002. It was only after a long time that a protest petition was filed and an order was passed on 28.2.2007 by JM I, Muzaffar Nagar, rejecting the final report and summoning the co-accused Satish and Shiv Kumar, who had been assigned the role of firing on the injured. Yagya Pal in his statement under Section 161 Cr.P.C. However, the applicant was not summoned by the Magistrate. It is further argued that after the evidence of PW 1, Ved Pal, was recorded on 8.1.2008 and on an application moved by opposite party No. 2 under Section 319 Cr.P.C. the impugned order has been passed on 28.1.2008 summoning the applicant.
3. So far as the contention of delay in filing of the protest petition or passing of the impugned order dated 28.1.2008 taking cognizance of the case against the applicant is concerned, it is noteworthy that even against the other co-accused Satish and Shiv Kumar, the order taking cognizance had also been passed by the JM concerned only on 28.2.2007.
4. Learned Counsel for the complainant rightly pointed out that in the FIR dated 4.12.2000 itself the specific role of exhortation was assigned to the applicant. In his evidence in Court also, the complainant Ved Pal Singh has clearly deposed that the injured Yagya Pal Singh was the ex-pradhan of the village Atali and the co-accused persons were hostile to him in the election for village pradhan. There was an earlier incident that took place 3 or 4 days prior of the incident in question between the co-accused Satish and the applicant. At the time of the incident, at about 12 mid-night the informant clearly heard Parmal saying that Yagya Pal should be shot at and finished. At that time, the informant woke up and came out. He saw his brother, the injured, Yagya Pal, trying to run inside the house whereupon Satish and Shiv Kumar fired at this. When the applicant had exhorted the others to finish Yagya Pal, at that time the witnesses Ramphool and Sunil also arrived there. All the three persons, Satish. Shiv Kumar and the applicant Parmal ran away after firing.
5. On the aforesaid evidence, the learned trial judge found the prima facie involvement of the applicant in the offence in question and the impugned order dated 28.1.2008 was passed issuing bailable warrant for appearance of the applicant in the court below on 13.2.2008.
6. Learned Counsel for the applicant further contended that there is no sufficient evidence for holding that the applicant could be convicted on the evidence so far disclosed and the impugned order could only have been passed after the cross-examination of the witnesses and the applicant should have been permitted to raise objections to the application under Section 319 Cr.P.C.
7. I do not agree with the aforesaid contention of the learned Counsel for, the applicant. At the stage of 319 Cr.P.C. no finding is required to be recorded about the probability or likelihood of the eventual conviction of the applicant and it has to be seen only whether a prima facie case is made out or not and it cannot be said that no prima facie case is disclosed regarding the complicity of the applicant in the offence in question?
8. Furthermore, under Section 319 Cr.P.C. there is no provision for hearing the accused, who is proposed to be summoned and, as such, there is no substance in the contention as to why the applicant was not allowed to raise objections before the impugned order summoning him was passed under Section 319 Cr.P.C. The case of Mohd. Shqfi v. Mohd. Rafiq and Anr. 2007 (58) ACC 2541 also does not lay down any proposition that an accused can only be summoned after a witness has been cross-examined; rather the said case was one where the learned Sessions Judged had refused to accede to the prayer for summoning the appellant under Section 319 Cr.P.C. because in that case the Sessions Judge had noted that the witness had reached the spot on hearing a noise and on an examination of his statement under Section 161 Cr.P.C. he was reported to have stated that he reached the spot after the incident. Hence, the evidence did not appear acceptable to the Court and the Court had simply dismissed the prayer under Section 319 Cr.P.C. at that stage. The Apex Court rightly observed in the said case that the order summoning the accused should be the result of a judicial exercise of discretion and the Court had properly exercised its discretion in not summoning the accused at that stage as it thought that the matter could be better resolved after cross-examination of the witnesses and the Court further observed that no exception could be taken to the order of the Sessions Judge when the State was not aggrieved by the same.
9. In the present case, (MI the contrary, the learned Sessions Judge was fully satisfied that sufficient grounds existed for summoning the applicant on the basis of the examination-in-chief of the witness Ved Pal and that the learned Magistrate has not given proper reasons for not summoning him at the earlier stage when the learned Magistrate rejected the final report and summoned the other co-accused.
10. In the case of Rakesh v. State of Haryana AIR 2001 SC 252 the conspectus of case law on the point has been considered and it has been clarified that it is not mandatory to cross-examine the witness before summoning an accused in exercise of power under Section 319 Cr.P.C. In this connection paragraphs 13 and 14 of Rakesh's case may be read with advantage:
13. Hence, it is difficult to accept the contention of the learned Counsel for the appellants that the term 'evidence' as used in Section 319, Criminal Procedure Code would main evidence which is tested by cross-examination. The question of testing the evidence by cross-examination would arise only after addition of the accused. There is no question of cross-examining the witness prior to adding such person as accused. Section does not contemplate an additional stage of first summoning the person and giving him an opportunity of cross-examining the witness who has deposed against him and thereafter deciding whether such person is to he added as accused or not. Word "evidence" occurring in sub-section is used in comprehensive and broad sense which would also include the material collected by the Investigating Officer and the material or evidence which comes before the Court and from which the Court can prima facie conclude that person not arraigned before it is involved in the commission of the crime.
14. Lastly, learned Counsel further submitted that power under Section 319 is an extraordinary power and should be used very sparingly and only for some compelling reasons for taking cognizance of other persons against whom action has not been taken. For this purpose, he referred to MCD v. Ram Kishan Rohtagi . In our view, there cannot be a dispute that power under Section 319 is to be sparingly used. But that would not mean that when a prosecutrix names three persons who were involved in the serious crime are not to be added as accused by exercise of such power.
11. In another recent decision of the Apex Court in Rajendra Singh v. State of U.P. 2007 (7) SCC 378 where an appeal was preferred from an order of the Allahabad High Court, in a case under Section 302 IPC where in the examination in chief a similar role of instigation had been assigned to the accused, who had been summoned by the learned Sessions Judge in exercise of powers under Section 319 Cr.P.C. in spite of a final report being submitted by the police. The Apex Court criticized the High Court for setting aside the order on the basis of alibi material in the form of affidavits and statements of witnesses under Section 161 Cr.P.C. and emphasized that such evidence of alibi needs to be proved by the accused in accordance with Section 103 of the Evidence Act by leading defence evidence during trial and statements of witnesses to the police or affidavits could not be considered by the High Court for passing such an order in an application under Section 482 Cr.P.C. Even the fact that the co-accused had been acquitted in the meanwhile in Rajendra Singh's case was not considered a proper reason for setting aside the order summoning the accused under Section 319 Cr.P.C.
12. The contention of the learned Counsel for the applicant in the present case that the accused might have an alibi for being absent from the spot when the incident took place is a matter which the applicant can only raise at the time when he leads his evidence in defence and is wholly extraneous for arriving at a conclusion whether the learned trial court has passed a proper order summoning the applicant after the evidence of a certain witness has been recorded on an application moved under Section 319 Cr.P.C.
This application, therefore, has no force and is rejected summarily.
13. However, in the facts and circumstances of the case, I direct that if the applicant surrenders before the Court below within a period of 3 weeks and applies for bail in the aforesaid crime before the court below shall dispose of his bail application expeditiously.
14. It is further directed that the trial court shall endeavour to dispose of the trial expeditiously being uninfluenced by any of the observations hereinabove which have been made only for the purpose of disposal of this application.