Judgment

S.B. Sinha, J.

1. Leave granted.

2. On the basis of a fardbeyan of one Bihari Singh, a First Information Report was registered against seven persons for commission of offences under Sections 147, 148, 149, 307 and 302 of the Indian Penal Code and Section 27 of the Arms Act as well as under Section 3/4 of the Explosive Substance Act inter alia alleging that on 24.10.2000 at around 4 p.m. when he along with one Ajay Singh was sitting in his shop near bus stand, Nagendra Choubey, Mukesh Choubey, Pradeep Vishwakarma, Sharvan Vishwakarma, Suraj Singh, B.N. Singh and Arbind Singh came in two vehicles and started firing. Appellant No. 1 was specifically named therein. In the said incident, the complainant and Ajay Singh suffered fire arm injuries. When the people started assembling there, accused persons fled away. The motive for commission of the offence was said to be the murder of one Jagdev wherein the complainant and the said Ajay Singh were accused. The first informant was taken to the hospital and died on 25.10.2000. He gave a dying declaration which was treated to be the First Information Report.

3. Indisputably, no charge sheet was filed against the appellants. No cognizance, therefore, was taken against them.

4. Upon commitment of the case to the Court of learned Sessions Judge, the prosecution examined eleven witnesses. The learned Sessions Judge relied upon the evidence of PWs 6 and 7 to allow an application for summoning the appellant in exercise of his power under Section 319 of the Code of Criminal Procedure (for short "Code"), holding:

"There cannot be any two opinion that suspicion however strong it may be cannot take shape of evidence and it cannot be a ground for conviction but so far issuance of process is concerned strong suspicion can be a ground to proceed against any person in a criminal case. In the facts of the present case when the statement of the injured formed basis of fardbeyan, who died subsequently then value of first statement will also be a point for consideration. The statement of PW 7 is also said to be statement of dead person, then that statement of PW7 will also be under the scrutiny on the touchstone of evidence. The name of above referred two persons Suraj Singh and Arbind Singh is stated by the informant.

Thus in consideration of the entire material on record I am of the view that the materials on record is sufficient to proceed against above named Suraj Singh and Arbind Singh. Thus in view of the above observation it will be proper that summons against Suraj Singh son of Madhu Singh and Arbind Singh son of late Amarnath Singh, both resident of village - Bandubar, P.S. Panki, Distt -Palamau be issued and are arrayed as accused in GR. 1256/2000 corresponding to Sadar P.S. Case No. 381/2000 to face trial.

The office is directed to open a separate record for those two persons bearing no. 209B/2004 and is further directed to issue summons against the above named two accused persons for their trial."

5. Appellants filed criminal revision application there against before the High Court. By reason of the impugned judgment, the same was dismissed.

6. Mr. P.S. Narasimha, learned counsel appearing on behalf of the appellants, has taken us through the evidences of PWs 6 and 7 and submitted that both the learned Sessions Judge as also the High Court committed a serious error insofar as they failed to take into consideration the legal principles required to be applied while summoning an accused in exercise of the court's power under Section 319 of the Code.

7. Mr. Manish Kumar Saran, learned counsel appearing on behalf of the respondent, on the other hand, submitted that from a perusal of the judgment of the High Court it would appear that the only contention raised therein was that no charge-sheet having been filed against them, they could not have been summoned by the Court in exercise of its power under Section 319 of the Code, which has rightly been rejected by the High Court in view of th