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2010 DIGILAW 2701 (ALL)

Hassanne v. State Of U. P.

2010-09-06

RAJ MANI CHAUHAN

body2010
JUDGMENT: Raj Mani Chauhan, J. Heard the learned counsel for the petitioners and learned A.G.A. as well as perused the material available on record. 2. This petition under Section 482 Cr.P.C. has been filed by the accused petitioners for quashing the impugned order dated 15.5.2010, passed by the learned Additional Sessions Judge, Court No.6, Hardoi in S.T. No. 611 of 2009 (Crime No. 294 of 2009); State Vs. Jamal, under Sections 498-A, 304-B I.P.C. and ? D.P. Act, Police Station Mallawan, District Hardoi whereby he has allowed the application filed by the prosecution under Section 319 Cr.P.C. and summoned the accused and also for staying the proceeding of the case in pursuance of the said impugned order dated 15.5.2009. 3. The submission of the learned counsel for the accused petitioners is that on the written report of the complainant Naseem, son of Naim, resident of Village Sursaini, Police Station Bangarmau, District Unnao, the police of Police Station Mallawan, District Hardoi, registered a case under Sections 498A, 304-B I.P.C. and ? Dowry Prohibition Act at Crime No. 294 of 2009 against the accused Jamal (husband), Hassanne, Smt. Rafia, Kamal and Smt. Afsana for investigation. The case was investigated by the Circle Officer i.e. Deputy Superintendent of Police who did not find the involvement of the accused petitioners in the alleged incident, consequently, he exonerated them. He found the prima-facie, evidence against the accused Jamal in the commission of the alleged offences, therefore, he submitted charge sheet only against the accused Jamal. During the course of trial, the prosecution moved an application under Section 319 Cr.P.C. to summon the accused petitioners on the ground that on the basis of statements of P.W.1 Naseem and P.W.4 Shamim, the involvement of the accused petitioners in commission of the alleged offences was established. The accused Jamal who was facing trial, opposed the application and filed objection. The learned Additional Sessions Judge after hearing the prosecution and defence at length, allowed the application filed by the prosecution by the impugned order dated 15.5.2010 which has given rise to the present petition. 4. The accused Jamal who was facing trial, opposed the application and filed objection. The learned Additional Sessions Judge after hearing the prosecution and defence at length, allowed the application filed by the prosecution by the impugned order dated 15.5.2010 which has given rise to the present petition. 4. Learned counsel for the petitioners submits that the power of the trial court to summon a person as an accused under Section 319 Cr.P.C. cannot be exercised in a routine manner; rather it can be exercised sparingly in a rare case where the involvement of the accused is fully established on the basis of evidence led by the prosecution and there is most likelihood of conviction of the accused on the basis of such evidence. The court has to record the specific finding in this regard but in this case the court without recording any reason, has allowed the application. The learned Additional Sessions Judge has observed that the statements of P.W.1 Naseem and P.W.4 Shamim were found sufficient to summon the accused petitioners but he had not specifically recorded his satisfaction as to whether the statements of P.W.1 Naseeem and P.W.4 Shamim were of such nature that the involvement of accused petitioners was fully established and the possibility of conviction of the accused petitioners was there. The impugned order is not based on reasons, therefore, the same is liable to be quashed on this ground. 5. Learned A.G.A. although supported the impugned order passed by the learned Additional Sessions Judge but fairly accepts that the trial court has not recorded its satisfaction as to how he was satisfied to summon the accused petitioners. 6. Considered the submissions of learned counsel for the accused petitioners and learned A.G.A. as well as gone through the impugned order. 7. The established principle of law is that the trial court has ample power to summon a person as accused under Section 319 Cr.P.C. if his involvement is established but such power will not be exercised by the court in a routine manner; rather it will be exercised rarely and sparingly where the evidence led by the prosecution is of such nature which may result the conviction of the accused and the court has to record the specific finding on this point. The impugned order lacks specific finding and the reasons too on this point. The impugned order lacks specific finding and the reasons too on this point. The impugned order is, therefore, bad in the eyes of law and is liable to be quashed. 8. The petition is, therefore, allowed. The impugned order dated 15.5.2010, passed by the learned Additional Sessions Judge, Court No. 6, Hardoi in S.T. No. 611 of 2009; State Versus Jamal, is set aside and the matter is remanded back to the trial court with the direction that the trial court will dispose of the application moved by the prosecution under Section 319 Cr.P.C. afresh keeping in view the observation made in the body of the judgment.