The discretion to summon an accused, the requirement of adequate material to summon an accused, and the power to summon an accused under Section 319 Cr. P. C. even if not named in the charge sheet or FIR.

AMAR SARAN, J. :- Heard learned counsel for the applicant and learned Additional Government Advocate.

2. An order dated 27-9-2007 passed by the learned Additional Sessions Judge/Fast Track Court No. 3, Aligarh in S. T. No. 865 of 2006, summoning the applicant under Sections 307/34, 420, 504, 506 IPC has been challenged by means of this application.

3. The first submission of the learned counsel for the applicant was that the said summoning order was passed after examination-in-chief of Dev Raj Singh and before his cross-examination was done, it is argued that there is a bar for summoning an accused under Section 319 Cr. P. C. unless the witness is cross-examined. For this proposition learned counsel for the applicant has placed reliance on the decision of the Apex Court in the case of Mohd. Shaft v. Rafiq and another, 2007(2) JIC 490 : (2007 4 All LJ 317).

4. In my view this contention of the learned counsel is based on a mis-reading of the aforesaid decision. The said decision only mentions that discretion to summon an accused must be judicially exercised and that the Court should arrive at a satisfaction that a prima facie case is made out against an accused.

5. Furthermore, Mohd. Shafi : (2007) 4 ALJ 317 (supra) was a case where the learned Sessions Judge was not satisfied after the examination-in-chief of the witness P.W. 1 because the witness in that case stated that he has subsequently arrived at the spot. It was in that situation that, the Court had insisted that there should be more material against the accused.

6. I have considered the said decision and other decisions of the Apex Court in Criminal Misc. Application No. 2355 of 2008 (Parmal v. State of U. P. and another) decided on 19-2-2008 in which I have held after relying on the case of Rakesh v. State of Haryana, AIR 2001 SC 252 that on all occasions before summoning the accused it is not mandatory to cross-examine the witness, if in the opinion of the Judge concerned there is adequate material to summon an accused. It was not pointed out by the learned counsel for the applicant that there was no adequate material in the examination-in-chief of the witness to summon the accused in the present case.

7. The next argument raised by the learned counsel for the applicant was that the applicant was an accused in the

first charge sheet, which has been submitted on 10-5-2006, in which it was stated that his arrest was pending. It

is notable that in the said charge sheet neither was the applicants name mentioned as an accused in the first

column or in the second column.

8. It has been held in the case of Jarnail Singh and another v. State of Haryana and another, AIR 2003 SC 4081 that even if an accused is wanted in a connected case, if he is not an accused before the Court at that stage, he can be summoned in exercise of power under Section 319 Cr. P. C.

9. In Smt. Rukhsana Khatoon v. Sakhawat Husain AIR 2002 SC 2342 : (2002 All LJ 1516) it has been mentioned that a person who is named in the FIR, but has been been charge sheeted, can be summoned as an accused under Section 319 Cr. P. C.

10. Learned counsel for the applicant submits that the applicant has got himself bailed out by an order dated 4-5-2007 by the Sessions Judge, Aligarh, wherein it is mentioned that the police has not found any case under Section 307 IPC against this accused as the blow was said to have been given by the other accused.

11. Whether the applicant could also be arraigned as an accused under Section 307 IPC with the aid of Section 34 IPC is a matter to be appreciated by the trial Court. Simply because the accused obtained bail in a case at the stage of investigation prior to the submission of the charge sheet when he has initially been arraigned as an accused, in view of the aforesaid two decisions mentioned above, i.e Jarnail Singh and Smt. Rukhsana Khatoon : (AIR 2003 SC 4081) (supra), it cannot be said that he was an accused at the stage when the application under Section 319 Cr. P. C. was co