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2010 DIGILAW 2659 (ALL)

GUDDI DEVI v. STATE OF U. P.

2010-08-31

SHRI KANT TRIPATHI

body2010
JUDGMENT Hon’ble Shri Kant Tripathi, J.—This revision is disposed of at this stage with the consent of the learned counsel for the parties. 2. The learned counsel for the revisionist submitted that the summoning order has been passed on the application and the appeal is being held as a State case, therefore, the respondent No. 2 was not a party and he may be permitted to delete the name of the respondent No. 2 from the array of the party. 3. The learned counsel for the revisionist is permitted to delete the name of the respondent No. 2 from the array of the parties. 4. Heard the learned counsel for the revisionist and the learned A.G.A. for the respondent No. 1 and perused the record. 5. This is a revision against the order dated 9.7.2010 passed by the Additional Sessions Judge, Fast Tract Court No. 5, Firozabad in Session Trial No. 432 of 2006, State v. Raju and others. 6. It appears in the aforesaid Session Trial, 14 prosecution witnesses have been examined. An application for summoning the revisionist and other persons was moved under Section 319 Cr.P.C. The learned Additional Sessions Judge found a prima facie case against the revisionist Smt. Guddi Devi and other co-accused, namely, Adal Singh, Satya Prakash and Smt. Reshma Devi under Sections 147, 302 and 120B I.P.C. and accordingly summoned them as accused. 7. The learned counsel for the revisionist submitted that the co-accused Satya Prakash filed criminal revision No. 2864 of 2010 and co-accused Adal Singh filed criminal revision No. 2881 of 2010 against the summoning order. The said two revision were allowed on 29.7.2010 by Hon’ble Ashok Kumar Roopanwal, J. His Lordship remanded the matter to the Trial Court for a fresh order under Section 319 Cr.P.C. 8. The learned counsel for the revisionist further submitted that when the matters relating to co-accused, Adal Singh and Satya Prakash have been re-opened, there will be no justification to adopt a different view in regard to the revisionist. It was also submitted that the learned trial Court has not recorded any finding that the evidence adduced in support of the application under Section 319 Cr.P.C., if uncontroverted would reasonably lead to conviction of the revisionist. Therefore on this ground the impugned order cannot be sustained. 9. It was also submitted that the learned trial Court has not recorded any finding that the evidence adduced in support of the application under Section 319 Cr.P.C., if uncontroverted would reasonably lead to conviction of the revisionist. Therefore on this ground the impugned order cannot be sustained. 9. In the case of Sarabjit Singh and another v. State of Punjab and another, 2009 (66) ACC 32 (SC), 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. 10. In Sarabjeet Singh’s case, the Apex Court further observed that mere existence of a prima facie case may not serve the purpose. Different standards are required to be applied at different stages. Whereas the test of prima facie case may be sufficient for taking cognizance of an offence at the stage of framing of charge, the Court must be satisfied that there exists a strong suspicion. While framing charge in terms of Section 227 CrPC, the Court must consider the entire materials on record to form an opinion that the evidence if unrebutted would lead to a judgment of conviction. Whether a higher standard be set up for the purpose of invoking the jurisdiction under Section 319 CrPC is the question. The answer to these questions should be rendered in the affirmative. Whether a higher standard be set up for the purpose of invoking the jurisdiction under Section 319 CrPC is the question. The answer to these questions should be rendered in the affirmative. Unless a higher standard for the purpose of forming an opinion to summon a person as an additional accused is laid down, the ingredients thereof, viz., (I) an extraordinary case and (ii) a case for sparingly exercise of jurisdiction, would not be satisfied. 11. Another Division Bench of the Apex Court in the case of Brindaban Das and others v. State of West Bengal, 2009 (66) ACC 273 (SC), 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. 12. In the case of Michael Machado and another v. Central Bureau of Investigation and another, (2000) 3 SCC 262 (SC), 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. 13. 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 (SC). 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. 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, 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. 14. After considering the aforesaid case laws and few other decisions of the Apex Court, this Court in the case of Rajol and others v. State of U.P. and another, 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. 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.“ 15. For the reasons discussed above, the revision is allowed. The impugned order 9.7.2010 is set aside. A non observance of this legal requirement would render the summoning order illegal.“ 15. For the reasons discussed above, the revision is allowed. The impugned order 9.7.2010 is set aside. The matter is remanded to the learned Additional Sessions Judge, Fast Track Court No. 5, Firozabad to re-consider the application under Section 319 Cr.P.C. in the light of the aforesaid observations and pass an appropriate order afresh in accordance with law. —————