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Allahabad High Court · body

2009 DIGILAW 3632 (ALL)

DHAM SINGH v. STATE OF UTTARAKHAND

2009-12-01

ALOK SINGH

body2009
JUDGMENT ALOK SINGH, J. – Mr. Dinesh Chauhan, learned Counsel for the revisionists. 2. Mr. 5.5. Adhikari, learned A.G.A. for the State of Uttarakhand/respondent. 3. With the consent of both the parties, this revision is being finally heard and decided at the admission stage. Brief facts of the present revision are that one Parveen Singh was challenged under section 8/20 of N.D.P.S. Act. In Session Trial No. 13 of 2009, State v. Parveen Kumar, statement (Examination in Chief) of P.W. 1 Arjun Singh was recorded. In his examination in chief P.W. 1 stated “accused Parveen Kumar during investigation disclosed him that Charas was of Dham Singh S/o Bahadur Singh R/o Village Ghansi. Accused was told to deliver this Charas to Jodh Singh Hotel wala of Bharodi. This fact is also mentioned by P.W. 1 in the Recovery memo”. 4. During examination chief of P.W. 1 Arjun Singh, Sub-Inspector an application was moved by the prosecution to summon Dham Singh and Gyan Singh as co-accused under section 319 of Cr.P.C. to face trial for the offence under section 8/20 N.D.P.S. Act read with sections 120-B and 34, I.P.C. Learned Sessions Judge by the impugned judgment/order dated 11.11.2009 allowed the application of the prosecution and directed to summon petitioners to face trial under section 8/20, N.D.P.S. Act read with sections 120-B and 34, I.P.C. In the present Revision order of Session Judge is being assailed. 5. Learned Counsel for the revisionist argued that cross-examination of P.W. 1 Arjun Singh Sub-Inspector has not been done so far. He further stated that exercise of power under section 319 of Code of Criminal Procedure should be exercised after completion of cross-examination and not on the basis of statement recorded by Investigating Officer or examination in chief made before the Court. 6. Mr. Dinesh Chauhan, has placed reliance on the judgment of Hon'ble Apex Court in the matter of Mohd. Shaft v. Mohd. Rafiq Hon'ble Apex Court in para 11 in the matter of Mohd. Shaft v. Mohd. Raftq has observed as under : “11. The Trial Judge as noticed by us, in terms of section 319 of the Code of Criminal Procedure was required to arrive at his satisfaction. Shaft v. Mohd. Rafiq Hon'ble Apex Court in para 11 in the matter of Mohd. Shaft v. Mohd. Raftq has observed as under : “11. The Trial Judge as noticed by us, in terms of section 319 of the Code of Criminal Procedure was required to arrive at his satisfaction. If he thought that the matter should receive his due consideration only after the cross-examination of the witnesses is over, no exception thereto could be taken far less at the instance of a witness and when the State was not aggrieved by the same.” 12. From the decisions of this Court, as noticed, above, it is evident that before a Court exercises its discretionary jurisdiction in terms of section 319 of the Code of Criminal Procedure, it must arrive at the satisfaction that there exists a possibility that the accused so summoned is in all likelihood would be convicted. Such satisfaction can be arrived at inter alia upon competition of the cross-examination of the said witness. For the said purpose, the Court concerned may also like to consider other evidence. We are, therefore, of the view that the High Court has committed an error in passing the impugned judgment. It is accordingly set aside. The appeal is allowed.” 7. As per the dictum of Hon'ble Apex Court I am satisfied that power under section 319, Cr.P.C. should be exercised only after cross-examination is over. That too, after recording satisfaction that persons being summoned for trial can be convicted. Mr. Dinesh Chauhan further argued that revisionists should not have been summoned under sections 120-B and 34, I.P.C. rather could be summoned under section 8/20 read with section 29 of N.D.P.S. Act. 8. Since impugned order is being set aside hence, I make no observation on the question of applicability of section 29, N.D.P.S. Act. I have perused the impugned order. I find. cross-examination has not been done so far with P.W. 1. Learned Trial Court has not recorded its satisfaction that there is likelihood of conviction of the persons summoned. The only satisfaction recorded by the Trial Court is that ground for trial is sufficient. In my opinion, this satisfaction is not legal. I, therefore, quash the order dated 11-11-2009 passed by Sessions Judge, Bageshwar in Session Trial No. 13 of 2009. Learned Trial Court has not recorded its satisfaction that there is likelihood of conviction of the persons summoned. The only satisfaction recorded by the Trial Court is that ground for trial is sufficient. In my opinion, this satisfaction is not legal. I, therefore, quash the order dated 11-11-2009 passed by Sessions Judge, Bageshwar in Session Trial No. 13 of 2009. However, it would be open to the learned Sessions Judge to exercise its jurisdiction under section 319 after completion of the cross-examination of P.W. l-Arjun Singh, Sub-Inspector and that too after recording satisfaction. Revision is allowed accordingly. Revision Allowed.