Heard learned counsel for the applicant and learned A.G.A. This application under Section 482 Cr.P.C has been moved by the complainant against the order dated 28.10.2009 passed by the learned Additional Sessions Judge, Court No.5, Gonda in Sessions Trial No. 58 of 2009 (Case Crime No. 551 of 2007); State Vs Giddar and others, under Sections 364, 323, 504, 506 I.P.C., Police station Kotwali City, District Gonda, whereby the learned Session Judge has rejected the applicant's application under Section 319 Cr.P.C for summoning the persons not named as accused in the charge sheet submitted by the Investigating Officer.
From a perusal of the impugned order, it appears that the Sessions trial as mentioned above is pending in the court of Sessions Judge, Gonda for trial. The prosecution in support of charge levelled against the accused examined the complainant Sajjad as PW-1 (present applicant). The complainant after his examination-in-chief moved an application under Section 319 Cr.P.C. involving the persons in the alleged occurrence to be summoned. The learned Additional Sessions Judge, Gonda rejected the application on the ground that the application under Section 319 Cr.P.C. ought to have been moved after recording the statement of PW-1 and other independent prosecution witnesses. The application was, therefore, premature.
The complainant feeling aggrieved by the impugned order has filed the present application under Section 482 Cr.P.C.
The submission of learned counsel for the applicant is that the complainant had named as many as five accused, namely, Ishtiyaq, Sugun, Giddar, Nafees and Manmali, who were said to be involved in the occurrence but the Investigating Officer had submitted charge sheet against the accused Giddar, Nafees and Manmali only. The complainant in his examination-in-chief had involved the five accused including both Ishtiyaq and Sugun, who were left over by the Investigating Officer in the charge sheet. The statement of complainant was sufficient to summon the accused. The trial court has rejected his application by the impugned order, which is illegal.
Learned counsel for the applicant in support of his argument has placed reliance on the case of Suman Vs State of Rajasthan and another reported in 2010 (1) Criminal Court Cases 269 (S.C) and Manjit Pal Singh Vs State of Punjay and another reported in 2009 (1), JIC 362 (S.C).
The power of the trial court under Section 319 Cr.P.C. is extra ordinary discretionary power which should be invoked sparingly and for compelling reasons. The Court can invoke the power under Section 319 Cr.P.C. only when it is satisfied that the accused to be summoned were involved in the commission of offence. It appears that the learned Additional Sessions Judge, only on the basis of statement of complainant given in his examination-in-chief was not satisfied about the involvement of the persons to be summoned in the alleged occurrence. Therefore, he was of the view that the complainant was to be cross-examined and statement of more prosecution witnesses of public was required to consider as to whether the involvement of accused is established.
I am of the view that the observation of the learned Additional Sessions Judge, does not suffer from any illegality. The impugned order does not call for any interference. The application under Section 482 Cr.P.C. is liable to be rejected.
The application is, therefore, rejected.
However, the complainant after he is cross examined by the accused and after examination of more witnesses of fact may move application under Section 319 Cr.P.C. to summon the persons as accused who were left over in the charge sheet which will be considered by the learned Additional Sessions Judge on merit.
27.01.2010 Renu/-