Research › Search › Judgment

Allahabad High Court · body

2010 DIGILAW 2817 (ALL)

ANOOP SINGH v. STATE OF U. P.

2010-09-15

SHRI KANT TRIPATHI

body2010
JUDGMENT Hon’ble Shri Kant Tripathi, J.—Heard learned counsel for the revisionists and learned A.G.A. for the respondent No. 1 and perused the record. 2. Learned counsel for the revisionist No1 informed that revisionist No. 1 has died. His wife has been served notice but none is present on her behalf. 3. It appears that in S.T. No. 61/95 (State v. Anoop Singh and others), the learned Additional Sessions Judge, Meerut has summoned the revisionist for trial under Sections 147, 302 and 201 I.P.C. The summoning order has been passed under Section 319 Cr.P.C. The revisionist No. 1 Anoop Singh and revisionist No. 3 Lokendra are alleged to have died. 4. It may not be out of context to mention that at the stage of charge, learned Additional Sessions Judge found no sufficient material and, accordingly, discharged the revisionists. After the discharge of the revisionists, the trial Court proceeded against co-accused Dharamveer. Against whom, the prosecution examined as many as six witnesses. The evidence of P.W.1, Ramesh, was that he had seen the revisionist No. 1, Anoop Singh, and Lokendra on a Boggie (Cart). Later on he got information that the deceased had been killed. The other evidence against the revisionists was that the co-accused Dharamveer pleaded his guilt before the police and the dead bodies of the deceased were recovered by the police on his pointing. There is no other evidence against the revisionists. The summoning order appears to have been passed on the basis of the aforesaid evidence. 5. It is well settled that the power under Section 319 Cr.P.C. is to be exercised sparingly in exceptional matters where the prosecution evidence, if uncontroverted, would reasonably lead to conviction of the person sought to be summoned. 6. 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 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. 7. 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 Cr.P.C 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. 8. 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. 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. 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, 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. 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. 11. 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.” 12. In the present case, the learned Additional Sessions Judge has not recorded any finding that the prosecution evidence, if uncontroverted, would lead to conviction of the revisionists. Therefore, the summoning order cannot be sustained. 13. The revision is allowed and the summoning order dated 23.9.2003 is set aside. The learned Additional Sessions Judge is directed to reconsider the application under Section 319 Cr.P.C. and pass a fresh order in accordance with law. —————