JUDGMENT Amar Saran, J.
1. This application under Section 482 of the Code of Criminal Procedure (hereinafter referred to as the Code) has been filed against the order dated 9.8.2004 passed by the Additional District and Sessions Judge-IV, Mathura, in S.T. No. 847 of 2003 (State v. Uppe alias Upendra and Ors.), under Sections 147/148/149/302 IPC, police station Kotwali, district Mathura, whereby the applicant had been summoned under Section 319 of the Code.
2. I have heard Shri G.S. Hajela, learned Counsel for the applicant, Shri S.P. Singh, learned Counsel for opposite party No. 2 and learned Additional Government Advocate.
3. The brief facts of the case are that an FIR was lodged by the informant Anil Seth on 12.7.2003 at about 10.05 A.M. alleging that on the same day at about 8.45 P.M. when the informant's maternal uncle Ballabh Chaubey was returning after worshiping Charchika Devi, near the Pan shop of Chaturvedi, the accused, who laid an ambush, emerged carrying arms and on the exhortation of the applicant Uma Kant Chaturvedi that Ballabh Chaubey should be killed and he should not be spared, the three sons of Ganesh Chaubey and Pappu fired with their country made pistols on the deceased in the presence of the informant resulting in his death, The miscreants ran away along with the applicant.
4. However, after investigation, the police submitted a charge sheet against Pappu alias Surendra, Antu alias Anant, Chauwan alias Krishna Kumar and Uppe alias Upendra, but kept the investigation against the applicant pending.
5. After recording the examination-in-chief of the informant P.W. 1 Anil Seth on 9.6,2004, an application was moved under Section 319 of the Code for summoning the applicant It was mentioned in the application that special role had been given to the applicant in the FIR, but due to his influence, the police has not submitted a charge sheet against him. The witnesses clearly specified the role of the applicant in the incident.
6. After hearing A.D.G.C.(Criminal) on the informant's application and counsel for the informant and perusing the record and the case diary, the trial court has summoned the applicant under Section 319 Cr.P.C.
7. In the examination-in-chief the informant corroborated the version given by him in the FIR and stated that the applicant was accompanying the other accused and on his exhortation that Ballabh Chaubey should be murdered and he should not be allowed to escape, the other accused fired at the deceased resulting in his death. Thereafter the accused ran away along with the applicant, who is an advocate.
8. The contention that the applicant could not have been summoned only on the basis of the examination-in-chief, did not find favour of the trial court.
9. In Rakesh v. State of Haryana , it has been held by the Apex Court that an accused can be summoned even on the basis of the examination-in-chief, of the witness, which constitutes evidence and it is not necessary to cross-examine the witness for summoning an accused under Section 319 of the Code.
10. It is contended by the learned Counsel for the applicant that the applicant was named in the FIR, yet police did not choose to file a charge sheet against him, hence he ought not to have been summoned under Section 319 of the Code.
11. It has clearly been held in the case of Smt. Rukhsana Khatoon v. Shakhawat Hussain that there is no fetter in arraigning an accused in proceedings in Under Section 319 CrPC even if he has been named in the FIR and not charge sheeted.
12. Learned Counsel for the applicant further submitted that the applicant was a senior lawyer and he has been falsely implicated only because he used to do Pairvi for the other accused for whom he stood as counsel, who had lodged an FIR under Section 302/307 IPC against the deceased of the present case Ballabh Chaubey, which was pending trial in district Mathura in S.T. No. 150 of 1995.
13. Whether the applicant was involved only because he used to do Pairvi for the other accused or actually he shared nexus with them are matters, which can only be appreciated during the course of the trial. At this stage the defence of the applicant that he was prominent lawyer or that he had been implicated along with the other accused, because he used to do Pairvi for them, cannot be appreciated,
14. It was next argued by the learned Counsel for the applicant that some advocates have filed affidavits before the Chief Judicial Magistrate, Mathura on 15.7.2003 alleging that on 12.7.2003 the applicant had gone to some nursery for purchasing plants for his plot. These defence documents pertaining to alibi can also not be considered at this stage and they were rightly rejected by the trial court.
15. The so-called 161 Cr.P.C. statements of the witnesses Arvind alias Tetu and Vinay Chaturvedi, given to the investigating officer, are also not important as they are not stated to be the eye witnesses by the informant.
16. Moreover, in Lok Ram v. Nihal Singh and Anr. 2006 AIR SCW 2129. it has been held that the trial court can take a step to add any person as accused only on the basis of the evidence adduced before him and not on the basis of the material available on the case diary or the charge sheet because such materials contained in the charge sheet or the case diary do not constitute evidence.
17. For this reason, any exonerative statements of the witnesses in the case diary cannot be used for refusing to summon an accused person in exercise of power under Section 319 of the code.
18. Learned Counsel for the applicant further drew my attention to the decision of the Apex Court in PalaniSamy Gounder and Anr. v. State (2006)1 SCC (Cri) 568, which was based on the decision of Michael Machado and Anr. v. Central Bureau of Investigation and Anr. and Krishnappa v. State of Karnataka that unless the court is hopeful that there is a reasonable prospect of the case against the newly added accused ending in their conviction for the offence concerned, the Court shall refrain from adding them as accused and that the power is discretionary and should be exercised sparingly and that mechanically a new person should not be added,
19. In Michael Machado (Supra) it has been clarified that another consideration for refusing to summon an accused under Section 319 of the Code was that when the trial has proceeded for some amount of time and quantum of evidence collected, there may not be any compelling duty of the court to proceed against other persons.
20. However, I find in the present case that only the examination-in-chief of the first witness Anil Seth has concluded when the application was moved, and the summoning order was passed under Section 319 of the Code.
Learned Counsel also drew my attention to the case of Krishnappa (Supra) for urging that in a case where only the role of presence or instigation is established, there should be little reason for summoning the accused.
21. It may be pointed out that in Krishnappa (Supra), the State has filed an application under Section 319 Cr.P.C before the Magistrate for summoning the appellant as an accused after the conclusion of the prosecution evidence examining 17 prosecution witnesses and recording of the statements of the accused under Section 313 Cr.P.C. by the Magistrate. The learned Magistrate by a detailed order, after examination of the evidence, dismissed the application, inter alia, noticing that on the evidence, the possibilities of the appellant being convicted were remote. The trial court also noticed the factum of the quashing of the proceedings against the appellant in the year 1995. As the High Court set aside the order of the Magistrate, refusing to summon the appellant Krishnappa, simply on the ground that some of the prosecution witnesses have deposed about the presence of the appellant on the date of the incident and also about the instigation made by him to the other accused to destroy the crops and trees grown by the accused, the Apex Court observed that the Magistrate had properly exercised his discretion in the total conspectus of the case and the interference by the High Court was not justified in the circumstances.
22. I think that the case of Krishnappa (Supra) renders no assistance to the applicant.
23. In this view of the matter, there's no force in this application, It is accordingly rejected.
24. The stay order dated 15,9.2004 is vacated.
25. As the proceedings in this case have remained stayed for a long time, the trial court is directed to expeditiously conclude the trial of the case.
26. Office is directed to send a copy of this order to the court concerned within two weeks for compliance.