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2010 DIGILAW 2654 (ALL)

DEEP NARAIN v. STATE OF U. P.

2010-08-31

KANT TRIPATHI

body2010
JUDGMENT Hon’ble Shri Kant Tripathi, J.—Heard Mr. Shashi Bhushan for the revisionists, Mr. S.N. Tripathi for the respondent No. 2 and the learned AGA for the respondent No. 1 and perused the impugned judgment and order. 2. With the consent of the learned counsel for the parties, the instant revision is being disposed of finally at the stage of admission. 3. The instant revision has been filed against the order dated 6.8.2010 passed by the Additional Sessions Judge (Fast Track Court) Sant Kabir Nagar in S.T. No. 53 of 2009, State v. Nagendra Shukla, whereby the learned Additional Sessions Judge has summoned the revisionist No. 1, Deep Narain with regard to the offences under Sections 376 and 302, IPC and has summoned the remaining revisionists in regard to the offence under Section 302 IPC. 4. It appears that the respondent No. 2 lodged an FIR with the allegations that her daughter (deceased Km. Meena) had made an oral dying declaration before her, according to which the revisionist No. 1 Deep Narain committed rape on her and after that the remaining revisionists put her on fire after sprinkling kerosene, consequently, the deceased sustained burn injuries. In the hospital, the deceased made a similar statement but the doctor did not record her statement and referred her to Gorakhpur but she died while she was on way to Gorakhpur. 5. During the trial, the statements of PW-1 Smt. Geeta Shukla, PW-2 Km. Reena Shukla and PW-3 Km. Vedika Shukla were recorded. These witnesses have supported the prosecution story stated in the FIR. Learned Additional Sessions Judge found it proper to summon the revisionists under Section 319 CrPC and accordingly passed the summoning order dated 6.8.2010. 6. The learned counsel for the revisionists submitted that the learned Additional Sessions Judge has not recorded any finding as to whether the evidence adduced against the revisionists, if uncontroverted, is sufficient to record a conviction against the revisionists. 7. In the case of Sarabjit Singh and another v. State of Punjab and another, 2009 (66) ACC 32, the Apex Court held that indisputably, before an additional accused can be summoned for standing trial, the nature of the evidence should be such which would make out grounds for exercise of extraordinary power. 7. In the case of Sarabjit Singh and another v. State of Punjab and another, 2009 (66) ACC 32, the Apex Court held that indisputably, before an additional accused can be summoned for standing trial, the nature of the evidence should be such which would make out grounds for exercise of extraordinary power. The materials brought before the Court must also be such which would satisfy the Court that it is one of those cases where its jurisdiction should be exercised sparingly. The Apex Court further observed that an order under Section 319 CrPC, therefore, should not be passed only because the first informant or one of the witnesses seeks to implicate other person. Sufficient and cogent reasons are required to be assigned by the Court so as to satisfy the ingredients of the provisions. Mere ipse dixit would not serve the purpose. Such an evidence must be convincing one at least for the purpose of exercise of the extraordinary jurisdiction. After making these observations, the Apex Court further held that the Courts are required to apply stringent tests; one of the tests being whether evidence on record is such which would reasonably lead to conviction of the person sought to be summoned. 8. Another Division Bench of the Apex Court in the case of Brindaban Das and others v. State of West Bengal, 2009 (66) ACC 273, propounded the same principle and held that in matters relating to invocation of powers under Section 319 CrPC, the Court is not merely required to take note of the fact that the name of a person who has not been named as an accused in the FIR has surfaced during the trial, but the Court is also required to consider whether such evidence would be sufficient to convict the person being summoned. The Apex Court further observed that the fulcrum on which the invocation of Section 319, CrPC rests is whether the summoning of persons other than the named accused would make such a difference to the prosecution as would enable it not only to prove its case but to also secure the conviction of the persons summoned. 9. The Apex Court further observed that the fulcrum on which the invocation of Section 319, CrPC rests is whether the summoning of persons other than the named accused would make such a difference to the prosecution as would enable it not only to prove its case but to also secure the conviction of the persons summoned. 9. In the case of Michael Machado and another v. Central Bureau of Investigation and another, (2000) 3 SCC 262 , the Apex Court propounded that power under Section 319 CrPC vested in the Court should be used sparingly and the evidence on which the same was to be invoked should indicate a reasonable prospect of conviction of the person sought to be summoned. 10. The prospects of conviction as one of the requirement for summoning a person as accused under Section 319 CrPC has been propounded even in the case of Krishnappa v. State of Karnataka, 2004 (7) SCC 792 . It has been held in that case that invocation of the power under Section 319 CrPC should not have been resorted to, since the chances of conviction on the basis of the evidence on record was remote. Applying the principles laid down in the cases of Michael Machado (supra), the Apex Court further ruled that the power to summon an accused is an extraordinary power conferred on the Court and it should be used very sparingly and only if compelling reasons exist for taking cognizance against the person other than the accused. 11. After considering the aforesaid case laws and few other decisions of the Apex Court, this Court in the case of Rajol v. State of U.P., 2010(5) ADJ 628 , has observed in para 22 as follows : “22. In the cases of Sarabjeet (Supra), Brindawan Das, Michael Machado (supra) and Krishnappa (supra), it has been clearly held that summoning order should be passed only when the evidence, if uncontroverted, is of such a nature as to reasonably lead to conviction of the person sought to be summoned. The standard of evidence required for summoning an additional accused should be higher than the evidence required for framing charges because the jurisdiction under Section 319 CrPC is to be exercised sparingly in an extraordinary situation. The standard of evidence required for summoning an additional accused should be higher than the evidence required for framing charges because the jurisdiction under Section 319 CrPC is to be exercised sparingly in an extraordinary situation. Whether or not any evidence is of such a quality as to record conviction if it remains uncontroverted, is a variable question depending upon the facts and circumstances of each case and no hard and fast rule can be laid down in this regard. However, the Court considering the evidence for the purpose of Section 319 CrPC is not legally required to evaluate the evidence as it is ordinarily done while rendering the final judgment but the Court has to see whether or not, the evidence on record appeals to the reason for the purposes of Section 319 CrPC and the story narrated by the witnesses against the person sought to be summoned is not improbable and absurd and a conviction is possible on such statements, if uncontroverted. A non observance of this legal requirement would render the summoning order illegal.” 12. In the present case, no doubt the learned Additional Sessions Judge has passed a detailed order but he nowhere recorded any specific finding whether or not the evidence adduced in support of the application filed under Section 319 CrPC, if uncontroverted, would reasonably lead to conviction of the revisionists. In absence of a finding in this perspective, the summoning order cannot be upheld. 13. For the reasons discussed above, the revision is allowed. The impugned order dated 6.8.2010 is set aside. The learned Additional Sessions Judge is directed to reconsider the application filed under Section 319 CrPC in the light of the observations made hereinabove and pass an appropriate order afresh in accordance with law. ————