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2009 DIGILAW 3273 (ALL)

JUNED PAHALWAN v. STATE OF U. P.

2009-10-13

AMAR SARAN

body2009
JUDGMENT Hon’ble Amar Saran, J.—Heard Shri V.P. Srivastava, learned senior counsel for the revisionist and learned Additional Government Advocate. 2. This criminal revision has been filed challenging an order dated 13.8.2009 passed by the learned Additional Sessions Judge/Special Judge (DAA), Kanpur Dehat in SST No. 200 of 2008 summoning the revisionist in a case under Sections 302/394/504/506, IPC, police station Bhognipur, Kanpur Dehat in exercise of powers under section 319 of the Code of Criminal Procedure. 3. It was mentioned in the application for summoning the revisionist that on 1.5.2008 at about 9.20 P.M., the revisionist Juned Pahalwan, Zubair Khan alias Majhlay and Hasnain alias Motey and Ghulam Jilani committed the murder of the deceased Aejaz Khan, the brother of the informant Chand Babu, who lodged a report of the incident at 11.10 PM. The revisionist was shown armed with a double barrel gun with which he fired on the deceased and the post-mortem report confirmed the said injury as there were six gun shot injuries on the deceased and 67 pellets were retrieved from the body of the deceased. These pellets were said to be forced by the DBBL gun used by the revisionist. 4. Learned trial judge observed that it was probable that the injuries to the deceased could have been caused by the DBBL gun as only one other accused Hasnain was carrying a “Pauniya” and the other accused were armed with rifles. He was, therefore, prima facie satisfied that it appeared from the evidence that the revisionist was involved in the incident. He was not impressed with the alibi evidence accepted by the investigating officer, who had recorded the 161, Cr.P.C. statement of the revisionist wherein the revisionist was said to be admitted at PHC, Naukha Rath between 30.4.2008 and 2.5.2008 for diarrhoea and vomiting. 5. Shri V.P. Srivastava, learned senior counsel for the revisionist did not raise any submission on merits. He was not impressed with the alibi evidence accepted by the investigating officer, who had recorded the 161, Cr.P.C. statement of the revisionist wherein the revisionist was said to be admitted at PHC, Naukha Rath between 30.4.2008 and 2.5.2008 for diarrhoea and vomiting. 5. Shri V.P. Srivastava, learned senior counsel for the revisionist did not raise any submission on merits. He only argued that as the Apex Court has taken the view in some cases, viz Municipal Corporation of Delhi v. Ram Kishan Rohtagi and others, 1983 (1) SCC 1 ; Michael Machado and another v. CBI and another, 2000 (2) JIC 5 (SC), 2000(3) SCC 262 and Krishnappa v. State of Karnataka, 2005 (1) JIC 107 (SC) that the powers to summon an accused under section 319, Cr.P.C. was an extraordinary power to be exercised sparingly and it was only for compelling reasons that the Court could taken cognizance. Some of the recent decisions in Mohd. Shafi v. Mohd Rafiq, 2007 (58) ACC 254 had insisted that it was only after cross-examination of a witness that an accused should be summoned and that in other recent decisions it was held that unless there was a probability of conviction a summoning order ought not to have been passed. 6. He however submitted that in Hardeep Singh v. State of Punjab and others, 2009 (1) JIC 362 (SC), which is also a two Judge decision, the Apex Court has questioned the propriety of the view that an accused could only be summoned after the witnesses had been cross-examined and that the powers of summoning should only be exercised when there is likelihood of an accused being convicted. This matter has then been referred by the two judges Bench to a larger Bench and it was contended that until the larger Bench of the Apex Court takes a decision on the matter, the proceedings should be stayed. 7. As pointed out above, in the present case on merits, learned counsel for the revisionist could not contend that there was no probability of conviction on the evidence that was being produced. Even in Hardeep Singh (supra) the Apex Court was examining some connected petitions, one such special leave petition was Manjeet Pal Singh v. State of Punjab and another. As pointed out above, in the present case on merits, learned counsel for the revisionist could not contend that there was no probability of conviction on the evidence that was being produced. Even in Hardeep Singh (supra) the Apex Court was examining some connected petitions, one such special leave petition was Manjeet Pal Singh v. State of Punjab and another. It was held that there was nothing against the respondent No. 2 and the final report had been accepted by the trial Court and the High Court and likewise in the case of Hardeep Singh (supra) where respondent Jagdar was not charge sheeted, the order issuing process was not held to be unlawful. Only in the case of Vijay Preet Singh where the name of the accused found place in the FIR where he was not only present with the weapon of assault (gadasa) but also arrested from scene of occurrence, his exclusion from the charge sheet was held not justified and submission of final report by the police was held not in consonance with law. The Apex Court had set aside the order by which the application under section 319, Cr.P.C. had been rejected by the trial Court. Thereafter, it had referred the matter to the larger Bench for taking a decision on two points alluded to herein-above. Significantly in Hardeep Singh’s case the proceedings against Hardeep Singh were not kept in abeyance till the consideration of the matter by the larger Bench. 8. As I find a conflict of opinions between two Judges’ decisions, in my view, the view preferred in Hardeep Singh (supra) and in Rakesh and another v. State of Haryana, 2009(65) ACC 259 (SC), wherein it was observed that cross-examination was not material for summoning an accused and all that was required to be seen from the evidence was whether there was sufficient material or evidence for the Court to reach a conclusion that other accused who was sought to be summoned, was also involved in the commission of the crime. Probability of conviction was not required to be considered at this stage. In my view, the later view is to be preferred to the view taken in some decisions which have insisted on necessity for cross examining the witnesses is for reaching a finding about the probability of conviction before summoning an accused. 9. Probability of conviction was not required to be considered at this stage. In my view, the later view is to be preferred to the view taken in some decisions which have insisted on necessity for cross examining the witnesses is for reaching a finding about the probability of conviction before summoning an accused. 9. In a Full Bench decision of this Court in Ganga Saran v. Civil Judge, 1991 (9) LCD 149, the Court held that when there is a conflict of two co-equal decisions of the Apex Court, which cannot possibly be reconciled, then it is not necessary to follow the later view, but this Court is entitled to decide which of the two views take the law more accurately and elaborately. 10. In view of my preference to the view taken in Hardeep Singh’s case and because even in the said decision the proceedings against Vijay Preet Singh had not been stayed until the larger Bench of the Apex Court considered the matter, I see no reason for issuing notice or keeping the matter pending till the larger Bench decides the issue in the Apex Court. 11. I find no illegality in the impugned order, the revision is accordingly dismissed. ———