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2007 (8) TMI 752 - SC - Indian LawsMurder - gun shot injury - Petition u/s 482 CrPC to quashed the order passed u/s 319 summoning the respondent No. 2 to face the trial - Plea of alibi - statements of the witnesses u/s 161 - accused here viz., Kapil Dev Singh (respondent No.2) and Daya Singh - accused of the tripple murder case were putting pressure on Nigam Singh not to give evidence in the said case - HELD THAT:- We are of the opinion that the statements of the witnesses u/s 161 CrPC being wholly inadmissible in evidence could not at all be taken into consideration. The High Court relied upon wholly inadmissible evidence to set aside the order passed by the learned Sessions Judge. That apart, no finding on a plea of alibi can be recorded by the High Court for the first time in a petition u/s 482 Cr.P.C. As mentioned, the burden to prove the plea of alibi lay upon the accused which he could do by leading evidence in the trial and not by filing some affidavits or statements purported to have been recorded u/s 161 CrPC. The whole procedure adopted by the High Court is clearly illegal and cannot be sustained. The other argument based upon the acquittal of co-accused Daya Singh has also no merits. The question as to whether an order passed u/s 319 Cr.P.C. would cease to be operative if the trial of the co-accused has been concluded, has been considered in Shashikant Singh v. Tarkeshwar Singh [2002 (4) TMI 958 - SUPREME COURT] held '' The words 'could be tried together with the accused' in Section 319(1), appear to be only directory. 'Could be' cannot under these circumstances be held to be 'must be'. The provision cannot be interpreted to mean that since the trial in respect of a person who was before the Court has concluded with the result that the newly added person cannot be tried together with the accused who was before the Court when order u/s 319(1) was passed, the order would become ineffective and inoperative, nullifying the opinion earlier formed by the Court on the basis of evidence before it that the newly added person appears to have committed the offence resulting in an order for his being brought before the Court." Therefore the mere fact that trial of co-accused Daya Singh has concluded cannot have the effect of nullifying or making the order passed by the learned Sessions Judge as infructuous. The learned Sessions Judge trying the case of co-accused Daya Singh seems to have been swayed by the fact that the High Court had not only set aside the order passed by the learned Sessions Judge u/s 319 CrPC by which the respondent No. 2 Kapil Dev Singh was summoned to face trial but had also recorded a finding in his favour that he was present in a meeting in Nagar Nigam, Allahabad. Since we are setting aside the order of the High Court, the aforesaid finding of the learned Sessions Judge would automatically go and cannot stand. Thus, we consider it desirable that the criminal revision filed by Rajendra Singh against the acquittal of Daya Singh should be heard by the High Court as expeditiously as possible. We accordingly request the High Court to decide Criminal Revision (Rajendra Singh v. Daya Singh) expeditiously preferably within a period of four months of presentation of a certified copy of this order before the High Court. In the result, the appeal succeeds and is hereby allowed. The impugned judgment and order of the High Court is set aside and the order passed by the learned Sessions Judge, Allahabad, summoning respondent No. 2 Kapil Dev Singh to face trial is restored.
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