Research › Search › Judgment

Allahabad High Court · body

2010 DIGILAW 3597 (ALL)

Pramod Kumar Singh v. State of U. P. and another

2010-11-26

S.N.H.ZAIDI

body2010
S.N.H. Zaidi, J. - By means of the in­stant application moved under section 482 Cr.P.C., the applicant has invoked the inherent powers of this Court with a prayer to quash the order dated 9.7.2009 passed by the Additional Sessions Judge, Court No. 6, Hardoi in S.T.No.465 of 2008 summoning the applicant under section 319 Cr.P.C. for trial with the accused persons. 2. Heard learned Counsel for the ap­plicant, learned A.G.A. for the State and perused the material on record. 3. The submission of the applicant's learned Counsel is that though the appli­cant was named in the report of the inci­dent with specific role of exhortation and firing but in the investigation of the case the naming of the applicant was found false as several persons had filed affidavits showing that at the time of incident the applicant was not present in the village and charge-sheet was not filed against him. However, during the trial complainant Pin-too Singh P.W.1 and Ajai Kumar Singh P.W.2 have stated about the presence and participation of the applicant in the inci­dent and on the basis of the statement of these witnesses, the learned Trial Court, on the application moved by the complainant, summoned the applicant under section 319 Cr.P.C. for trial along with the accused-persons through the impugned order. 4. Learned Counsel further submitted that for exercising jurisdiction under sec­tion 319 Cr.P.C. it is incumbent upon the Court to satisfy itself whether or not the evidence adduced before it, if uncontro-verted, would be sufficient to record con­viction of the person sought to be sum­moned. In support of his contention, the learned Counsel has relied upon the judg­ments of Hon'ble Supreme Court rendered in the cases of Sarabjit Singh and others v. State of Punjab and another, 2009 (66) ACC 32, Brindaban Das and others v. State of West Bengal, 2009 (66) ACC 273 Michael Machado and another v. Central Bureau of Investigation and another, 2000 (40) ACC 795 (SC) and Krishnappa v. State of Karnataka, 2004 (50) ACC 343 (SC). 5. In the case of Sarabjeet Singh (su­pra) the Apex Court has 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. 5. In the case of Sarabjeet Singh (su­pra) the Apex Court has 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 Cr.P.C., 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 (supra), propounded the same principle and held that in matters relating to invoca­tion of powers under section 319 Cr.P.C., 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, Cr.P.C. 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 (su­pra), the Apex Court propounded that power under section 319 Cr.P.C. 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. 7. In the case of Michael Machado (su­pra), the Apex Court propounded that power under section 319 Cr.P.C. 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 Cr.P.C. has been propounded again in the case of Krishnappa (supra). It has been held in that case that invocation of the power under section 319 Cr.P.C. 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. The ration of the aforesaid cases is that a summoning order under section 319 Cr.P.C. 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 Cr.P.C. 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 un-controverted, 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 Cr.P.C. 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 Cr.P.C. 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 un-rebutted. 10. 10. Since in the instant case the Court below while passing the impugned order has not recorded any finding as to whether the evidence adduced before it, if uncontroverted, would be sufficient to record a conviction of the revisionist, therefore, it is not sustainable in the absence of such finding. 11. In view of the aforesaid, this appli­cation is allowed and the impugned order dated 9.7.2009 is quashed and the matter is remanded to the learned Trial Court to re­consider the application afresh in the light of the above observations and pass appro­priate order in accordance with law expeditiously.