Research › Search › Judgment

Gauhati High Court · body

2013 DIGILAW 97 (GAU)

Jaharul Haque (Md. ) v. State of Assam

2013-02-08

SUBHASIS TALAPATRA

body2013
JUDGMENT Subhasis Talapatra, J. 1. Being aggrieved by the order dated 07.10.2009 passed in GR case No 992 of 2003 whereby the summons have been issued against the petitioners under Section 319 of the Criminal Procedure Code, 1973 (the Cr.P.C. in short) for arraigning them as the co-accused on the charge framed under Section 147/148/448/324 of the I.P.C. this petition under Section 397 read with Section 407 of the Cr.P.C. has been filed. There is no dispute that the petitioners were dropped and not sent up for trial even though their names appeared in the First Information Report dated 11.11.2003. But after recording some evidence a petition being No. 3432/2009 was filed by the prosecution on 06.08.2009 contending that the involvement of the some other persons (the petitioners herein) has surfaced. They should be arraigned as the co-accused persons for substantive ends of justice. In terms of the said prayer, the Sub-Divisional Judicial Magistrate passed the impugned order dated 07.10.2009 which reads as follows: The two numbers of accused persons are present and three numbers of accused persons are absent with step V.P. No. 4221 and it is allowed. The accused Mustaque Ahmed by filing a petition No. 4230 supported by a death certificate stated that the accused Abdul Zalil has died. The fact of death of the accused Abdul(sic) is admitted by the complainant also. As the accused Abdul Jalil has died and hence this case against him is abated. Perused the C.R. where it appears that the case was filed today for hearing and order on petition No. 3432, Seen the petition and perused the evidence of all the witnesses, where I find that the witnesses Rehanuddin (PW-7) Mahamudur Rahman (PW-6) and Abasuddin (PW-5) clearly stated that the accused person viz. Zahurul Haque, Abdul Adud, Muhibur Rahman, Nazrul Islam, and Nurul Haque were also involved in the incident. Hence they are tried together. Accordingly, issue summons to the above noted person as an accused of this case under Section 313 of Cr.P.C. Fixed 08.12.2009 for appearance. 2. Mr. S.C. Biswas, learned counsel appearing for the petitioners contended that the order dated 07.10.2009 cannot be sustained primarily for two reasons viz: i) The petitioners were named in the F.I.R. Even though investigation was carried out but they were not found involved with the commission of the alleged offence. In due course, cognizance was taken in terms of the charge-sheet. S.C. Biswas, learned counsel appearing for the petitioners contended that the order dated 07.10.2009 cannot be sustained primarily for two reasons viz: i) The petitioners were named in the F.I.R. Even though investigation was carried out but they were not found involved with the commission of the alleged offence. In due course, cognizance was taken in terms of the charge-sheet. As such the petitioners cannot be brought within the meaning of "any person not being the accused" as stipulated in sub section (1) of Section 319 of the Cr.P.C. ii) The Sub-Divisional Judicial Magistrate while passing the impugned order did not record the compelling reasons constituting his satisfaction for arraigning the petitioners as the co-accused. 3. To buttress his contention Mr. S.C. Biswas, learned counsel appearing for the petitioners referred a decision of the apex Court in Sarbjit Singh & Anr. Vs. State of U.P. as reported in AIR 2009 SC 2792 where the apex Court held as under: 17. 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 criterion laid down by this Court in Municipal Corporation of Delhi (supra) been satisfied is the question 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. We may notice that in Y. Saraba Reddy vs. Puthur Rami Reddy and Anr. JT 2007 (6) SCC 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.... 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. 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. 18. The observation of this Court in Municipal Corporation of Delhi (supra) and other decisions following the same is 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 of the Code, 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 of the Code 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. 4. Having reference to Sarbjit Singh (supra) Mr. Biswas, learned counsel submitted that while passing the impugned order issuing the summons against the petitioners sufficient or cogent reason has not been assigned by the trial Court to exercise the powers as conferred by Section 319 of the Cr.P.C. He referred another decision of the apex court in Mohd. Shafi Vs. Mohd. Rafiq & Anr. as reported in AIR 2007 SC 1899 (1) where it has been held thus: 12. Shafi Vs. Mohd. Rafiq & Anr. as reported in AIR 2007 SC 1899 (1) where it has been held thus: 12. From the decisions of this Court, as noticed above, it is evident that before a court exercises its discretionary jurisdiction in terms of Section 319 of the Code of Criminal Procedure, it must arrive at the satisfaction that there exists a possibility that the accused so summoned is in all likelihood would be convicted. Such satisfaction can be arrived at inter alia upon completion of the cross-examination of the said witness. For the said purpose, the court concerned may also like to consider other evidence. We are, therefore, of the view that the High Court has committed an error in passing the impugned judgment. It is accordingly set aside. The appeal is allowed. 5. In Hardeep Singh Vs. State of Punjab & Ors. as reported in AIR 2009 SC 483 it has been held as under: 75. With respect, the above observations do not appear to be in consonance with statutory provisions or previous decisions of this Court. We have reproduced Section 319 of the Code in the earlier part of the judgment. Bare reading of Sub-section (1) leaves no room of doubt what it requires. It states that for addition of accused, it must appear to the Court from the evidence that any person not being the accused has committed any offence for which such person should be tried along with other accused. 76. In Joginder Singh, a three-Judge Bench of this Court stated; A plain reading of Section 319(1), which occurs in Chapter XXIV dealing with general provisions as to inquiries and trials, clearly shows that it applies to all the Courts including a Sessions Court and as such a Sessions Court will have the power to add any person, not being the accused before it, but against whom there appears during trial sufficient evidence indicating his involvement in the offence, as an accused and direct him to be tried along with the other accused.... 77. In Michael Mechdo, this Court held that the Court must have reasonable satisfaction from the evidence led that the other person has committed an offence. 78. In Krishnappa, it was observed that such power should be exercised if there are compelling reasons and in Mohd. 77. In Michael Mechdo, this Court held that the Court must have reasonable satisfaction from the evidence led that the other person has committed an offence. 78. In Krishnappa, it was observed that such power should be exercised if there are compelling reasons and in Mohd. Shafi this Court has held that such power can be exercised only if the Court is satisfied that the accused so summoned is in all likelihood would be convicted. The test formulated in Mohd. Shafi substantially curtails discretionary power of the Court conferred by the Code under Sub-section (1) of Section 319. Even on this point, therefore, the matter requires fresh consideration. 6. In Municipal Corporation of Delhi Vs. Ram Kishan Rohtagi & Ors. as reported in (1983) I SCC 1 it has been held as under: 19. In these circumstances, therefore, if the prosecution can at any stage produce evidence which satisfies the court that the other accused or those who have not been arrayed as accused against whom proceedings have been quashed have also committed the offence the Court can take cognizance against them and try them along with the other accused. But, we would hasten to add that this is really an extraordinary power which is conferred on the Court and should be used very sparingly and only if compelling reasons exist for taking cognizance against the other person against whom action has not been taken. More than this we would not like to say anything further at this stage. We leave the entire matter to the discretion of the court concerned so that it may act according to law. We would, however, make it plain that the mere fact that the proceedings have been quashed against respondent Nos. 2 to 5 will not prevent the court from exercising its discretion if it is fully satisfied that a case for taking cognizance against them has been made out on the additional evidence led before it. 7. In Sohan Lal & Ors. Vs. State of Rajasthan as reported in (1990) 4 SCC 580 the apex Court dealt with the scope and ambit of Section 319 of the Cr.P.C. and held as under: 30. The question therefore is whether the necessity of making a further inquiry as envisaged in Section 398 could be obviated or circumvented by taking resort to Section 319. Vs. State of Rajasthan as reported in (1990) 4 SCC 580 the apex Court dealt with the scope and ambit of Section 319 of the Cr.P.C. and held as under: 30. The question therefore is whether the necessity of making a further inquiry as envisaged in Section 398 could be obviated or circumvented by taking resort to Section 319. As has already been held by this Court, there is need for caution in resorting to Section 319. Once a person was an accused in the case he would be out of reach of this section. The word "discharge" in Section 398 means discharge of an offence relating to the charge within the meaning of Sections 227, 239, 245 and 249. Refusing to proceed further after issue of process is discharge. The discharge has to be in substance and effect though there is no formal order. The language of the section does not indicate that the word "discharge" should be given a restricted meaning in the sense of absolute discharge where the accused is set at liberty after examination of the whole case. The cases of appellants 4 and 5 would be one of total discharge. But it could not be said that they were not some of the accused in the case, or that cognizance was not taken of the offences against them. A person may be accused of several offences and he may be discharged of some offences and proceeded against for trial in respect of other offences. This was the position regarding appellants 1, 2 and 3, who were partially discharged. 31. The High Court did not subscribe to the view taken in State v. Gangaram Kalita (AIR) 1965 1 CriLJ 144. Therein a charge-sheet having been filed against 9 accused persons in his Court the Sub-Divisional Magistrate called for report from the police and on receipt of the final report ordered the discharge of the accused persons on June 26, 1961. Subsequently on August 22, 1961, without any fresh charge-sheet or a complaint, Sub-Divisional Magistrate decided to proceed afresh against the accused persons and ordered summons to be issued to them, fixing a later date for evidence. Subsequently on August 22, 1961, without any fresh charge-sheet or a complaint, Sub-Divisional Magistrate decided to proceed afresh against the accused persons and ordered summons to be issued to them, fixing a later date for evidence. On a reference by the Additional District Magistrate, calling into question the procedure followed by the Sub-Divisional Magistrate a single Bench of the High Court of Assam and Nagaland on the basis of Section 251-A of the old Code of the Criminal Procedure held that assuming that the discharge order had been validly passed, the Magistrate became functus officio so far as the case was concerned and unless there was a fresh complaint or a fresh charge-sheet no action in the matter could have been taken by the Sub-Divisional Magistrate. It was observed that as the order passed was an order of discharge and not one of acquittal, a fresh complaint could under law have been entertained by the Magistrate and in the absence of any such complaint, any attempt to go back on the order of discharge passed by him and to revive the case, as if the case had not been discharged, would amount in law to a review of the judgment of the Magistrate which was not permissible having regard to Section 369 of the Cr.P.C. Section 369 provided that no Court when it had signed its judgment shall alter or review the same, except to correct clerical errors. 32. The High Court in the instant case followed the decision in Saraswatiben v. Thakurlal Himmatlal: ( AIR 1967 Guj 263 ), holding that if at one stage on the evidence before him the Magistrate found that there was no prima facie case against the accused, subsequently on enquiry as a result of further evidence if he felt that there was prima facie case against the accused whom he had discharged under Section 251-A(2), Cr.P.C., it was open to him to frame a charge against the accused and that it was not necessary to take cognizance again and the Magistrate did not become functus officio. The same view was taken in Amarjit Singh alias Amba v. State of Punjab reported in (1983) 85 Pun LR 324. 33. The provisions of Section 319 had to be read in consonance with the provisions of Section 398 of the Code. The same view was taken in Amarjit Singh alias Amba v. State of Punjab reported in (1983) 85 Pun LR 324. 33. The provisions of Section 319 had to be read in consonance with the provisions of Section 398 of the Code. Once a person is found to have been the accused in the case he goes out of the reach of Section 319. Whether he can be dealt with under any other provisions of the Code is a different question. In the case of the accused who has been discharged under the relevant provisions of the Code, the nature of finality to such order and the resultant protection of the persons discharged subject to revision under Section 398 of the Code may not be lost sight of. 8. Mr. S.C. Biswas, learned counsel concluded his submission stating that there was no assessment at all of the evidence as referred in the impugned order and as such it is apparent that the impugned order has been passed without any application of mind and mechanically as if any witness comes and implicates a person he has to be summoned to face the trial along with the other accused persons. Mr. Biswas, learned counsel further submitted that the apex court has sounded caution on umpteen occasions that reasons must be compelling and there should be assurance that there is probability of conviction of those persons else the power as provided under Section 319 of the Cr.P.C. should not be exercised. 9. An overview of the evidence as referred has been taken to appreciate the submission of Mr. Biswas, learned counsel appearing for the petitioners despite some mistake committed in identifying the witnesses, it is found that the PW-4 namely, Abban Uddin stated that at that time, by breaking the door of their hut, Mustak Ahmed, Jahurul Haque, Abdul Udud, Nurul Islam, Mahinur Rahman, Ajman Ali and Mahibur Rahman made entry into the hut. They were wielded with dao, dagger and rod. Mustak Ahmed hit on the head of his brother by dao. When he stepped forward to protect his brother Jahurul Haque had struck on his head and hand by a dao. Abdul Adud also replicated the assault by hitting on his hand. When his father came out from his hut, Nurul Islam, Manrul Mahibur Rahman hit on his father's head by a rod. When he stepped forward to protect his brother Jahurul Haque had struck on his head and hand by a dao. Abdul Adud also replicated the assault by hitting on his hand. When his father came out from his hut, Nurul Islam, Manrul Mahibur Rahman hit on his father's head by a rod. Then they raised alarm and the villagers rushed to their house. The PW-6 is the father of the injured who stated that 12-14 persons at about 11 pm called out his son, Rehan and when he came out he saw that a group of persons were trying to break the door of the hut of his son. His son Rehan was within a short while assaulted by Jaharul Haque, Abdul Odud, Mustak Uddin and Abdul Sahid. The others who were the part of that group were Munruddin Manik, Ajmal, Nurul, Abdur Rakib, Abdul Jalil. They attacked him with rod and stick and he received the injury. The CW-2 namely, Rehan Uddin stated that Jahurul Haque, Mustak Ahmed, Abdul Odud, Anuwar Sahdat, Mahibur Rahman, Ajmal Ali, Abdur Rakib, Abdur Sahid, Nazrul Islam, Manrul Islam, Nurul Haque, Abdul Manik on 10.11.2013 attacked his hut. Mustak Ahemed and Jahurul Islam assaulted him by a dao. They hit on his forehead causing bleeding injury. When his father came out of his hut, he was attacked by Jahurul Haque, Abdul Odud, Anward Sahdad and others. Mahibur Rahman, Nazrul Haque and Abdul Jali injured him by assaulting with rod. 10. So far the submission of Mr. Biswas, learned counsel as regards that the investigating agency since did not file the charge-sheet against the petitioners even though they were named in the First Information Report, they should be treated as the accused in the proceeding and later on as discharged from the criminal liability. The apex Court in Girish Yadav & Ors Vs. State of M.P. as reported in (1996) 8 SCC 186 has enunciated the law as under: 16. It was next submitted by learned senior counsel for the appellants that once the police had not submitted charge sheet against accused nos. 5 to 8 the court ought not to have roped them in. It is not possible to agree with this contention also. It was next submitted by learned senior counsel for the appellants that once the police had not submitted charge sheet against accused nos. 5 to 8 the court ought not to have roped them in. It is not possible to agree with this contention also. There is enough power with the court in a proper case to exercise its jurisdiction under Section 319 Cr.P.C. In the present case as we have seen earlier, the High Court had remanded the matter for reconsideration in the light of the evidence that may be recorded by the court and that is how. after recording the evidence of eye-witnesses process was re-issued against these appellants. As the evidence recorded by the court showed that there was enough involvement of these accused in the commission of the offence and, therefore, they stood on the same pedestal as accused 1 to 4 they could not be said to have been wrongly proceeded against as accused under Section 319 Cr.P.C. 11. In Tek Narayan Prasad Yadav Vs. State of Bihar & Anr. as reported in 1999 SCC (Cri) 356 the apex Court dwelled on the scope and ambit of Section 319 of the Cr.P.C. and held: 4. When the matter was placed before a two-Member Bench of this Court, conflict in judicial opinion was pointed out to the effect whether the Court of Session can summon an accused who is not charge-sheeted under Section 193 of the Code of Criminal Procedure. The above question was understood to have been answered in the affirmative in Kishun Singh v. State of Bihar [ (1993) 2 SCC 16 ] and Nisar v. State of U.P. [ (1995) 2 SCC 23 ] whereas there was a discordant note in Raj Kishore Prasad v. State of Bihar [ (1996) 4 SCC 495 ]. 5. On the instant fact situation, it is plaint that the Court of Session issued the process against the appellant after having begun the trial and having recorded some evidence of the prosecution. Such step of the court of Session cannot even remotely be termed as transgressing the affirmative views expressed in the abovementioned two cases. 12. In Rukhsana Khatoon (Smt.) Vs. Sahhawat Hussain & Ors. as reported in (2002) 10 SCC 661 the apex Court held as under: 5. In our view, the impugned order is, on the face of it, illegal and erroneous. 12. In Rukhsana Khatoon (Smt.) Vs. Sahhawat Hussain & Ors. as reported in (2002) 10 SCC 661 the apex Court held as under: 5. In our view, the impugned order is, on the face of it, illegal and erroneous. It is against the provisions of Section 319 Cr.P.C. and the decisions rendered by this Court interpreting the same. In Kishun Singh v. State of Bihar: (1993) 2 SCC 16 this Court considered a case where an FIR was lodged naming 20 persons including the two appellants as assailants of the deceased who died in the occurrence. After investigation, the police submitted its report under Section 173 Cr.P.C. showing 18 persons other than the two appellants as offenders. The Magistrate committed those 18 persons named in the report to the Court of Session under Section 209 Cr.P.C. to stand trial. Before the Sessions Court, an application under Section 319 of the Code was filed praying that the remaining two accused be summoned and arraigned as accused. The Sessions Court impleaded them as co-accused. The order was finally challenged before this Court and the Court dismissed the appeal by holding that Section 319 can be invoked both by the court having original jurisdiction as well as the court to which the case has been committed or transferred for trial. Similar is the view taken in Girish Yadav v. State of M.P. : (1996) 8 SCC 186 . 6. The learned counsel for the respondents contended that the High Court was justified in passing the impugned order and in support of his contention he has relied upon the decision in Municipal Corpn. of Delhi v. Ram Kishan Rohtagi : (1983) 1 SCC 1 . In our view, there is no substance in his contention. In that case also, after considering Section 319 Cr.P.C., this Court held that the said provision gives ample power to any court to take cognizance and add any person not being an accused before it and try him along with other accused, if there appears during the trial sufficient evidence indicating his involvement in the offence. The Court also observed that this power is really an extraordinary power and should be used very sparingly. 13. The Court also observed that this power is really an extraordinary power and should be used very sparingly. 13. The word 'appears' in Section 319, Cr.P.C. having found a key word to understand the scope and ambit of the power of the trial Court to issue summon against the persons who were not accused had fallen for consideration of the apex Court in Rajendra Singh Vs. State of U.P. & Anr. as reported in (2007) 7 SCC 378 where it has been held that: 16. Section 319(1), which is relevant for our purpose reads: 319. Power to proceed against other persons appearing to be guilty of offence - (I) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed. As I see it, the words are plain and the meaning clear. When in the course of the enquiry or trial, it appears to the court from the evidence that a person, not arrayed as an accused, appears to have committed any offence for which that person could be tried together with the accused, the court may proceed against that person. Surely, it must appear to the Court from the evidence that someone not arrayed as an accused, appears to have committed an offence. Be it noted, the Court need not be satisfied that he has committed an offence, it need only appear to it that he has committed an offence. In other words, from the evidence it need only appear to it that someone else has committed an offence, to exercise jurisdiction under Section 319 of the Code. Even then, it has a discretion not to proceed, since the expression used is 'may' and not 'shall'. The legislature apparently wanted to leave that discretion to the trial court so as to enable it to exercise its jurisdiction under this section. The expression 'appears' indicates an application of mind by the court to the evidence that has come before it and then taking a decision to proceed under Section 319 of the Code or not. The legislature apparently wanted to leave that discretion to the trial court so as to enable it to exercise its jurisdiction under this section. The expression 'appears' indicates an application of mind by the court to the evidence that has come before it and then taking a decision to proceed under Section 319 of the Code or not. With great respect, I see no reason to describe the power as an extraordinary power or to confine the exercise of it only if compelling reasons exist for taking cognizance against any other person against whom action has not been taken. After all, the section only gives power to the court to ensure that all those apparently involved in the commission of an offence are tried together and none left out. I see no reason to curtail this power of the court to do justice to the victim and to the society. It appears to me that it is left to the judicial discretion of the court, judicially trained, to decide to proceed or not to proceed against a person in terms of Section 319 of the Code. 16. The decision in Municipal Corporation of Delhi v. Ram Kishan Rohtagi and Ors. which described the power as an extraordinary power to be exercised very sparingly and only if compelling reasons exist proceeded on its own peculiar facts. The broad statement contained in that decision cannot be understood out of context. That was a case where the very same proceeding against certain persons initially arrayed as accused, had been quashed. But, thereafter from the evidence, it appeared to the court that some of them have to be tried as accused in exercise of power under Section 319 of the Code. This Court in that context after referring to Joginder Singh v. State of Punjab held that if the prosecution can at any stage produce evidence which satisfies the court that the other accused or those who have not been arrayed as accused against whom proceedings have been quashed, have also committed the offence, the Court can take cognizance against them and try them along with the other accused. (Ram Kishan Rohtagi case, SCC. P.8, Para 19) This Court thus upheld the power of the court to invoke Section 319 of the Code even in such a case. (Ram Kishan Rohtagi case, SCC. P.8, Para 19) This Court thus upheld the power of the court to invoke Section 319 of the Code even in such a case. Their Lordships then added: But, we would hasten to add that this is really an extraordinary power which is conferred on the court and should be used very sparingly and only if compelling reasons exist for taking cognizance against the other person against whom action has not been taken. With respect, I understand this sentence as relating to exercise of the power under Section 319 of the Code in a case where the prosecution against the person sought to be arraigned, had earlier been quashed by the court, but still he is to be roped in, in exercise of power under Section 319 of the Code. 14. This High Court in Haren Sarma & Ors., Vs. State of Assam as reported in 2004 (3) GLT 498 held as under: 5. The facts in the present case are, more or less, identical with that of Jogindra Singh and Anr. vs. State of Punjab and Anr.: AIR 1979 SC 339 , wherein the Apex Court interpreted Section 319 Code of Criminal Procedure as below: as regards the contention that the phrase 'any person not being the accused' occurring in Section 319 excludes from its operation an accused who has been released by the police under Section 169 of the Code and has been shown in column No. 2 of the charge-sheet, the contention has merely to be stated to be rejected. The said expression clearly covers any person who is not being tried already by the Court and the very purpose of enacting such a provision like Section 319(1) clearly shows that even persons who have been dropped by the police during investigation but against whom evidence showing their involvement in the offence comes before the Criminal Court are included in the said expression. As such there cannot be any misconception about the legal position that even if a person is dropped by investigating agency while filing the charge-sheet he can be arraigned as the accused and the summons can be issued to face the trial in exercise of the power as conferred under Section 319 of the Cr.P.C. 15. There is no reason to dilate the issue further. But Mr. There is no reason to dilate the issue further. But Mr. Biswas, learned counsel appearing for the petitioners has very rightly contended that the trial Court failed to make any objective assessment and record the cogent and compelling reason which has satisfied the Court to issue such summon. In the impugned order no such finding has been recorded. It appears to this Court that the impugned order has been passed so casually it is bound to defeat the spirit of Section 319 of the Cr.P.C. 16. In view of what the apex Court held in Mohd. Shafi (supra) that the trial Court shall record the compelling reasons and assurance that the accused so summoned to face the trial is in all likelihood would be convicted, the impugned order having bereft of any such reflection is required to be interfered with and set aside. The impugned order is accordingly set aside. However, this Court would not make any assessment of the evidence, rather the apposite exercise should be left to the domain and discretion of the trial Court. It is therefore directed that the trial Court shall make a fresh assessment of the evidence so far recorded and relied and thereafter pass the order afresh in the light of the apex Court judgment as referred in this order. With these direction, this petition stands disposed of. Send down the LCRs forthwith.