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2001 DIGILAW 694 (ALL)

RAM LOCHAN v. STATE OF UTTAR PRADESH

2001-07-17

J.C.GUPTA

body2001
J. C. GUPTA, J. ( 1 ) HEARD Sri H. K. Sharma for the applicants in revision, learned A. G. A. for the State and Sri Sanjay Kumar for the complainant opposite party No. 3. ( 2 ) THIS revision is directed against the order dated 12-2-2001 passed by VII Additional Sessions Judge, Allahabad in Session Trial No. 166/99 State v. Ram Chandra whereby the application of complainant moved under S. 319, Cr. P. C. has been allowed and the applicant has been summoned as accused in addition to the accused who is already facing trial. Learned counsel for the complainant has filed certified copy of the order sheet of the aforesaid trial. Along with the memo of revision the applicant has also filed certified copy of the application moved by complainant purporting to be unders. 319, Cr. P. C. This application is dated 11-1-2001. There is an endorsement of A. D. G. C. (Cri), "filed by State. " Then beneath this order of learned Sessions Judge runs as follows :"allowed. SUMMON the accused. " ( 3 ) THERE is yet another endorsement of the office. " Summons issued on 12-2-2001. ( 4 ) LEARNED counsel for the applicant in revision submitted before the Court that the above order passed by the learned Magistrate itself shows that the trial Court has not assigned any reason as to why the accused has been summoned and thus it follows that there has been no application of mind. This submission of the learned counsel is not devoid of force. It is well settled that orders without reasonings have no value in the eye of law. Obligation to give reasons introduces clarity and excludes or at any rate minimizes the chances of arbitrariness and the higher forum can test the correctness of those reasons. ( 5 ) JUSTICE Asprey of Australia in Pettit v. Dankley, 1971 (1) NSWLR 376 (CA) said that the failure of a Court to give reasons is an encroachment upon the right of appeal given to a litigant. ( 5 ) JUSTICE Asprey of Australia in Pettit v. Dankley, 1971 (1) NSWLR 376 (CA) said that the failure of a Court to give reasons is an encroachment upon the right of appeal given to a litigant. ( 6 ) IN the case of Kishun Singh v. State of Bihar, 1993 All Cri C 167 and Sohan Lal v. State, AIR 1990 SC 2158 , it was held that there can be no doubt that if it appears to the Court from the evidence tendered in the course of an inquiry or trial that any person not being the accused before it has committed any offence for which he could be tried together with the accused, the Court can summon that person to face trial. This power can be exercised only if it so appears from the evidence recorded during inquiry or trial and not otherwise. Existence of some evidence is thus sine qua non of the applicability of Section 319, Cr. P. C. 1993 0 AIR (SCW) 771 ( 7 ) IN Municipal Corporation of Delhi v. R. K. Rohatgi, AIR 1983 SC 67 , it was held that power under Section 319, Cr. P. C. is really an extraordinary power which is conferred on the Court and should be used very sparingly and only if compelling reasons exist for taking cognizance against the person against whom action has not been taken. ( 8 ) THE power conferred on the Courts is not to be exercised in a routine and mechanical manner without application of judicial mind. Prosecution does not become entitled to get a person summoned as accused to face trial in addition to those who are already facing trial merely on ipse dixit of the statement of a particular witness. While giving weight to the statement of a particular witness all the facts and circumstances appearing in the case should also be taken into consideration before exercising powers under S. 329, Cr. P. C. Therefore, the above order which does not contain any reason cannot be sustained. ( 9 ) LEARNED counsel for the complainant Sri Sanjay Kumar submitted before the Court that the order sheet of the aforesaid trial indicates that the learned Magistrate had passed a detailed order thereon on the same date which runs as follows :"later on application 13 Kha is moved by the prosecution. ( 9 ) LEARNED counsel for the complainant Sri Sanjay Kumar submitted before the Court that the order sheet of the aforesaid trial indicates that the learned Magistrate had passed a detailed order thereon on the same date which runs as follows :"later on application 13 Kha is moved by the prosecution. Accused Vijay Kumar and Ramlochan were named in FIR During investigation they were, (by the I. O.) and no charge-sheet was filed against them. P. W. 1 Karan Singh during his examination in chief has again made allegation against these accused. The accused be summoned accordingly, as prayed by the prosecution. " ( 10 ) FIRSTLY, I must say that it is highly suspicious if in fact this order had been passed on 11-1-2001, inasmuch as it is clear from the certified copy of the order sheet that the trial Court had already adjourned the case to 3-3-2001. Secondly, if this order had in fact been passed, there was no occasion or necessity of passing another order on the application itself which was moved under S. 319, Cr. P. C. According to the applicants counsel there has been tampering in the order sheet of the proceedings of the trial Court. Be that as it may, even the order passed on the order sheet is also otherwise not sustainable. A perusal thereof would indicate that the learned Sessions Judge has merely narrated facts that the applicants were named in the FIR but were not charge-sheeted and their names have been disclosed by P. W. 1 Karan Singh during his examination in chief. What allegationshave been made against them by P. W. 1 are not disclosed in the order nor the learned Sessions Judge appears to have examined the whole facts of the case with a view to find out whether there was any possibility of the case ending into conviction of the accused applicants. ( 11 ) IN the decision in Michael Machdo v. C. B. I. (2000) 40 All Cri C 795, it was held by the Apex Court that unless the Court is hopeful that there is reasonable prospect of the case as against the newly brought accused ending in conviction of the offence concerned, the Court should refrain from adopting such a course of action. This duty is cast upon every Court before ordering summoning of an accused under Section 319, Cr. This duty is cast upon every Court before ordering summoning of an accused under Section 319, Cr. P. C. In the Instant case either of the orders passed on the application or on the order sheet does not indicate that the learned Sessions Judge has exercised powers under Section 319, Cr. P. C. for any compelling reasons. Both the orders, therefore, are vitiated in law. . AIR 2000 SC 1127 ( 12 ) FOR the reasons stated above, this revision is allowed. The order of the learned Sessions Judge dated 11-1-2001 summoning the applicants as accused purporting to be in exercise of powers under Section 319, Cr. P. C. is set aside and he is directed to decide the application of the complainant mover under Section 319, Cr. P. C. afresh in accordance with law and in the light of observations made above. Petition allowed. .