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2010 DIGILAW 2712 (ALL)

RAM KUMAR MISHRA v. STATE OF U. P.

2010-09-07

SHRI KANT TRIPATHI

body2010
JUDGMENT Hon’ble Shri Kant Tripathi, J.—Heard learned counsel for the revisionists and the learned AGA and perused the record. 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. By this revision, the revisionists have challenged the order dated 2.8.2010 passed by the learned Additional Sessions Judge, Court No. 1, Kanpur Dehat in Session Trial No. 501 of 2009 (State of U.P. v Ram Kishor alias Ramu and others) arising out of Case Crime No. 230 of 2009, under Sections 363, 366 and 376 (g) IPC, P.S. Gajnair, District Ramabai Nagar (Kanpur Dehat) whereby the learned Additional Sessions Judge has summoned the revisionists under Section 319 of the Code of Criminal Procedure for trial in respect of the aforesaid offences. The summoning order appears to have been passed on the basis of the statement of the P.W.-1, Urmila. It further appears that the Investigating Officer had exonerated the revisionists during the investigation. 4. The learned counsel for the revisionists submitted that the prosecutrix was admittedly more than twenty years of age, therefore, no offence under Section 363 IPC was made out. It was next submitted that only the allegation of rape has been made, therefore, the offence under Section 366 IPC was also not made out. The learned counsel for the revisionists further contended that the learned Additional Sessions Judge nowhere arrived at the conclusion that the statement of P.W.-1, Urmila, if uncontroverted, it would reasonably lead to conviction of the revisionists and in absence of any specific finding in this regard, the summoning order is bad in law. 5. 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. 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. 6. 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. 7. 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. 8. 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 . 8. 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 Ram Kishan Rohtagi and 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. 9. 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 extra ordinary 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.” 10. A non observance of this legal requirement would render the summoning order illegal.” 10. In view of the aforesaid settled legal position, the learned Additional Sessions Judge was required to see whether or not the evidence adduced in support of the application under Section 319 of the Code, if uncontroverted, would reasonably lead to conviction of the revisionists and this finding was required because of the fact that the power under Section 319 of the Code is to be exercised sparingly in exceptional matters. 11. For the reasons discussed above, the summoning order dated 2.8.2010 cannot be upheld. The revision is, accordingly, allowed and the impugned order dated 2.8.2010 is set aside. The learned Additional Sessions Judge is directed to reconsider the application filed under Section 319 of the Code in the light of the observations made herein before and pass an appropriate order afresh in accordance with law. —————