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2011 DIGILAW 1475 (ALL)

Ashish Singhal and Others v. State of U. P. and Another

2011-06-23

BALA KRISHNA NARAYANA

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Bala Krishna Narayana, J. Heard learned counsel for the applicants and learned AGA. 2. Since the prosecution is represented by learned A.G.A., notice need not be issued to O.P. No.2. However, since this order is being passed without issuing notice to the opposite party no.2, in case if he feels aggrieved by this order, it will be open to the opposite party no.2 to move an application before this Court for recalling this order. 3. This application is directed against the judgment order dated 18.03.2011 passed by Additional Chief Judicial Magistrate, Chandausi in Case No. 337 of 2010 under Section 498-A/323/506 IPC and 3/4 Dowry Prohibition Act, P.S. Chandausi, District Moradabad, whereby the applicants were summoned under Section 319 Cr.P.C. to face trial. 4. Learned counsel for the applicants submitted that learned trial court had summoned the applicants on the ground that there was sufficient evidence against the applicants. It is submitted that learned trial court has not recorded his satisfaction that there exists a possibility that the accused so summoned, in all likelihood, would be convicted and thus, the impugned order is liable to be quashed. 5. Per contra learned A.G.A. made his submissions in support of the impugned order. 6. I have examined the submissions advanced by the learned counsel for the parties, perused the impugned order and the other materials brought on record as well as the case law relied upon by the learned counsel for the applicants in support of his submissions. 7. In Mohd. Shafi Vs. Mohd. Rafiq and another, 2007 (58) ACC 254, the Apex Court had held that before a Court exercising its discretionary jurisdiction in terms of Section 319 Cr.P.C., it must arrive at the satisfaction that there exists a possibility that the accused so summoned, is in all likelihood, liable to be convicted. 8. In Sarabjit Singh & another Vs. State of Punjab & another, (2010) 2 Supreme Court Cases (Cri) 141, the Apex Court held that for exercising extra ordinary jurisdiction under section 319 Cr.P.C., the Courts are required to apply stringent tests; one of the test being whether evidence on record is such which would reasonably lead to conviction of the person sought to be summoned and mere existence of a prima facie case may not serve the purpose. 9. 9. Since learned trial court has not recorded his satisfaction as above, the impugned order cannot be sustained and is liable to be set aside. 10. The application is allowed and the impugned order dated 18.03.2011 is set aside. The learned Additional Chief Judicial Magistrate, Chandausi, district Moradabad is directed to decide the application under Section 319 Cr.P.C. afresh in accordance with the directions of the Apex Court in the cases of Mohd. Shafi and Sarabjit (supra). 11. The applicants undertake to file a certified copy of this order before the court concerned within two weeks from today.