A Magistrate cannot summon an accused under Section 319 Cr.P.C. till she records the statements of the prosecution witnesses.

R.L.Anand, J.

1. Heard. Notice to the State. On the asking of the Court Shri Brar, DAG, Punjab accepts the notice.

Shri Darshan Singh has filed the present petition under Section 482 Cr.P.C. read with Article 227 of the Constitution of India praying that the order dated 26.10.1994 be quashed as the Magistrate had acted without jurisdiction in summoning the present petitioner under Section 319 Cr.P.C.

2. The summary of the facts is that case F.I.R. No. 29 dated 13.3.1994 under Sections 326/324/323/34 IPC police station Payal was registered against Jagtar Singh, Karnail Singh, Paramjit Singh, Baldev Singh, Teja Singh and present petitioner-Darshan Singh. After the completion of the investigation four accused namely Jagtar Singh, Karnail Singh, Paramjit Singh and Baldev Singh were challaned while Darshan Singh and Teja Singh were shown in column No. 2. The learned Magistrate took the cognizance of the matter and vide order dated 5.8.1994 framed respective charges under various heads against Jagtar Singh, Karnail Singh, Paramjit Singh and Baldev Singh and the case was adjourned for prosecution evidence. On 17.10.1994, the Assistant Public Prosecutor submitted an application under Section 319 Cr.P.C. before the learned Judicial Magistrate, 1st Class, Ludhiana with a prayer that S/Shri Teja Singh and Darshan Singh be summoned as accused. Vide impugned order dated 26.10.1994 the learned Magistrate passed the order summoning Darshan Singh and Teja Singh for the offence under Sections 326/324/323 read with Section 34 IPC. The reasons given by the learned Magistrate are contained as follows :-

"Reply to the application not filed. The APP has moved an application for summoning the accused Teja Singh and Darshan Singh their names once mentioned in Col. No. 2 of the challan form under Section 173 Cr.P.C. I do not think it appropriate to take reply of the application, the accused facing trial has no locus standi to give reply to the application for summoning of accused mentioned in Col. No. 2 of the challan form. Heard. The all argued that there are ample proof against Teja Singh and Darshan Singh accused. PW Nachhatar Singh discloses regarding involvement of both persons in his statement given to the police. But police failed to challan these accused and put them in col. No. 2 of the report under Section 172 Cr.P.C. This learned APP relied upon observation made by Honble Supreme Court in Kishan Singh and others v. State of Bihar, 1993(1) RCR 647, which also relied upon observation of Honble Punjab and Haryana High Court in 1994(1) RCR 100, where the Honble Punjab and Haryana High Court observed : "As perusal of the impugned order dated 18.12.1993 shows that the Judicial Magistrate, Gurdaspur has taken into consideration the Medico Legal Report as well which shows that the injuries were caused not only by a blunt weapon but by a sharp weapon as well. Thus, the Judicial Magistrate has taken into consideration the report under Section 173 Cr.P.C. and the medical evidence as well." Statement of Nachhatar Singh recorded to the police on 13.3.94 perused in which he stated that Teja Singh son of Wariyam Singh raised lalkara. He has stated that Teja Singh instigated other persons to cause injuries on his person. He also stated that the Darshan Singh @ Toni son of Bhag Singh armed with Soti caused injuries on his person. In fact, the present case was lodged on the statement of Sadhu Singh complainant who is brother of Nachhatar Singh and investigating officer of this case ASI Mohinder Singh in his Endst. upon the statement of Nachhatar Singh PW stated that case under Section 326/34 IPC had already been registered on the statement of Sadhu Singh brother of injured and offence committed by the accused will be investigated in that case. From the statement of Nachhattar Singh and Endst. made by ASI Mohinder Singh on the statement of Nachhattar Singh, I am of the considered opinion that there is prima facie evidence against the accused Teja Sing