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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.

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.

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.