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2010 DIGILAW 3325 (ALL)

Kailash Narain Shukla v. State of U. P. & Anr.

2010-10-26

ARVIND KUMAR TRIPATHI

body2010
Arvind Kumar Tripathi,J.:- Heard learned counsel for the applicant, learned counsel for the complainant and learned A.G.A. 2. An application under section 319 Cr.P.C. has been filed to summon the applicant. The applicant was summoned vide order dated 2.12.1996 to face the trial along with other accused in S.T. No. 228 of 1995 State Vs. Rampal Agnihotri and others, under sections 498-A/304-B I.P.C. arising out of case Crime No. 107 of 1994 P.S. Sheorajpur District Kanpur Dehat. 3. Learned counsel for the applicant contended that the entire family was implicated in the present case. However after investigation no charge sheet was filed against the applicant. The charges were framed and the case was committed for trial to the court of Session. After statement of informant Ramjeewan, father of the deceased the applicant was summoned by the Addl. Sessions Judge, Kanpur Dehat in the present case without giving reason and without recording satisfaction with regard to the possibility of conviction of the applicant. Neither the evidence nor the reason has been mentioned in the order. Merely mentioning that prima facie offence was disclosed, the applicant was summoned which is against the provision of section 319 Cr.P.C. and against the judgment of Hon. Apex Court as well as of this Court. 4. Learned A.G.A. and learned counsel for opposite party-complainant have opposed the version of the applicant and submitted that since there was sufficient evidence and material on record and the name of the applicant was clearly mentioned in the statement of Ramjeewan, informant along with other co-accused, hence the court below has not committed any illegality in the impugned order, therefore the present application is liable to be rejected. 5. The evidence for summoning the accused u/s 319 Cr.P.C. is only those evidence which are placed before the trial court. In the present case only the statement of Ramjeewan informant who was not eye witness was recorded. In his statement it was mentioned that his two sons Arvind and Vidya Shanker were present at the place of incident in the house of the accused. However the trial court without waiting for statement of those witnesses who were alleged to have been present in the house of the accused at the time of incident, the applicant was summoned to face the trial. However the trial court without waiting for statement of those witnesses who were alleged to have been present in the house of the accused at the time of incident, the applicant was summoned to face the trial. Apart from that no reasons or any satisfaction was recorded to the effect that the court was satisfied regarding possibility of conviction. 6. The counsel for the applicant has relied upon the judgment of this Court reported in 2010(5) ADJ 628 Rajol and others Vs. State of U.P. and another as well as of Hon. Apex Court in 2010 (2) SCC (Cri) 141 Sarabjit Singh and another Vs. State of Punjab and another and 2009 AIR (SC) 1248 Brindaban Das and others Vs. State of West Bengal. He has referred para 17 of the Judgment of Hon. Apex Court in case of Sarbjit Singh (Supra) which is quoted herein below: "The provision of Section 319 of the Code, on a plain reading, provides that such an extraordinary case has been made out must appear to the court. Has the criteria laid down by this Court in Municipal Corporation of Delhi (supra) been satisfied is the question ? Indisputabley, 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 extraoridnary 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. 8. We may notice that in Y. Saraba Reddy V. Puthur Rami Reddy and Anr. (JT 2007 (6) SC 460), this Court opined: "......Undisputedly, it is an extraordinary power which is conferred on the Court and should be used very sparingly and only if compelling reasons exist for taking action against a person against whom action had not been taken earlier. The word "evidence" in Section 319 contemplates that evidence of witnesses given in Court....." 9. An order under section 319 of the Code, therefore, should not be passed only because the first informant or one of the witnesses seeks to implicate other person (s). 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. An order under section 319 of the Code, therefore, should not be passed only because the first informant or one of the witnesses seeks to implicate other person (s). 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. 10. For the aforementioned purpose, 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." 11. According to the Hon. Apex Court while exercising the power u/s 319 Cr.P.C. the person is not required to be summoned only because the first informant or one of the witness sought to implicate the proposed accused. It was further observed that sufficient and cogent reasons are required to assigned by the Court to satisfy the ingredients of section 319 Cr.P.C. 12. It is well settled that the charges can be framed on the basis that prima facie offence was disclosed against the accused but such other person cannot be summoned u/s 319 Cr.P.C. to face the trial along with other accused who were earlier charge sheeted merely on that basis. There should be further satisfaction that there was good chance of conviction and the evidence was sufficient to record conviction on which basis the accused was summoned. In the present case there is no such reason or satisfaction recorded by the trial court. Further the trial court was required to wait for the evidence of alleged eye witnesses. The statement of Ramjeewan was based on heresay. 13. In the result the impugned order dated 2.12.1996 passed by Addl. Sessions Judge is hereby set aside. However it is clarified that the trial court may pass a fresh order u/s 319 Cr.P.C. if there is sufficient evidence after the statements of alleged eye witnesses and any other material evidence placed before the trial court after satisfaction regarding possibility of conviction. 14. Accordingly the present application under section 482 Cr.P.C. is hereby allowed. No order as to costs. ______________