Research › Search › Judgment

Madhya Pradesh High Court · body

2014 DIGILAW 980 (MP)

Rajendra Singh v. State of M. P.

2014-08-08

J.K.JAIN

body2014
ORDER 1. This is a revision filed under section 397/401 of CrPC against the order dated 13.6.2013 passed by 2nd ASJ, Shujalpur in ST No.143/2012 whereby an application under section 319 of CrPC was allowed. 2. Brief facts of this case are that on 25.7.2011 complainant Vikram Singh lodged a report that three unknown persons have robbed cash worth Rs.49,000/- from him by showing country made pistol. On this basis, a case was registered in Police Station-Akodiya at Crime No.91/2011 under section 394/397 of IPC. After investigation, police filed final report against Dinesh and Shantilal on 16.12.2011. They were tried and convicted for the offence punishable under section 394 of IPC, thereafter on 7.6.2012, supplementary report has been filed against co-accused Ishwarlal. He is being tried for the offence under section 394 of IPC. During trial Ishwarlal filed an application under section 319 of CrPC for impleading applicants as accused persons. Learned ASJ allowed the application vide impugned order dated 13.6.2013 and issued summons against the applicants. The applicants have challenged the order in this revision. 3. Learned counsel for the applicants submit that learned ASJ on the basis of deposition of Vikram Singh dated 12.6.2013 ordered to summon applicants as accused but there is no prima facie evidence to take cognizance against the applicants. Vikram Singh has lodged FIR against three unknown persons and police has filed final report against Dinesh and Shantilal and supplementary report against Ishwarlal. On 30.5.2012, Vikram Singh was examined during the trial of accused Dinesh and Shantilal. In cross-examination, he was suggested that applicants have robbed him but he denied the suggestion. Thus, there is no material against the applicants for taking cognizance. 4. Learned counsel for the applicants submit that while passing order under section 319 of CrPC the Court has to assign sufficient and cogent reasons which are lacking in the impugned order. He relied upon the judgment of the Hon’ble Supreme Court in the case of Sarabjit Singh and another v. State of Punjab, reported in AIR 2009 SC 2792 . 5. Learned counsel for the applicants further submit that on 12.6.2013, Vikram Singh deposed that the applicants were present at the place of occurrence, but no role attributed to the applicants; therefore, such persons cannot be summoned as additional accused. 5. Learned counsel for the applicants further submit that on 12.6.2013, Vikram Singh deposed that the applicants were present at the place of occurrence, but no role attributed to the applicants; therefore, such persons cannot be summoned as additional accused. For this purpose, he relied upon the judgment of the Hon’ble Supreme Court in the case of Guriya @ Tabassum Tauqir and others v. State of Bihar and another, reported in AIR 2008 SC 95 . 6. Learned Government Advocate supports the impugned order and submits that there is no illegality in the order. 7. After hearing rival contention of the parties, I have gone through the final report, application under section 319 of CrPC, impugned order and the deposition of Vikram Singh dated 30.5.2012 and 12.6.2013. 8. Firstly I would like to refer the judgment of the Hon’ble Supreme Court in the case of Sarabjit Singh (supra). In this case the Hon’ble Court has elaborately discussed the scope, object and nature of evidence for exercise of power under section 319 of CrPC, which is 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 ? Indisputable, before an additional accused can be summoned for standing trial, the nature of the evidence should be such which would make our 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 v. Puthur Rami Reddy and another [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 the Court .....” An order under section 319 of the Code, therefore, should not be passed only because the first information or one of the witnesses seeks to implicate other person(s). The word “evidence” in section 319 contemplates that evidence of witnesses given in the Court .....” An order under section 319 of the Code, therefore, should not be passed only because the first information 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.” 9. In the light of this pronouncement, I have examined the impugned order. 10. Learned ASJ has summoned the applicants on the basis of ; (i) Statement of Vikram Singh under section 161 of CrPC. (ii) Deposition of Vikram Singh dated 30.5.2012 recorded in the trial of accused Dinesh and Shantilal. (iii) Deposition of Vikram Singh recorded on 12.6.2013 during trial of Ishwarlal. 11. 10. Learned ASJ has summoned the applicants on the basis of ; (i) Statement of Vikram Singh under section 161 of CrPC. (ii) Deposition of Vikram Singh dated 30.5.2012 recorded in the trial of accused Dinesh and Shantilal. (iii) Deposition of Vikram Singh recorded on 12.6.2013 during trial of Ishwarlal. 11. For exercising powers under section 319 of CrPC, the statement recorded under section 161 of CrPC, cannot be considered as evidence. In the case of Sarabjit Singh (supra), it is held that the word “Evidence” in section 319 contemplates the evidence of witness given in the Court. In the deposition dated 30.5.2012, Vikram Singh no where deposed that the applicants were involved in the crime. On the other hand, in the cross-examination, it was suggested that he was robbed by the applicants, he denied the suggestion. 12. During the trial of accused Ishwarlal on 12.6.2013, Vikram Singh was examined, relevant portion of his deposition is an under :- ^^7- eSa ?kVuk fnukad dks tc ?kj ls fudyk Fkk rc esjs vkxs ihNs :iflag vkSj jktsUnzflag ijekj fuoklh xqxksn okys esjs vkxs ihNs gksrs jgsA eSaus cSad ls iSls fudkys rc Hkh os esjs ikl gh FksA tc ‘kqtkyiqj x;k rc Hkh os esjs ihNs jgsA vdksfn;k xk¡o jokuk gqvk rc Hkh os esjs ihNs Fks vkSj vkxs tkdj [ksM+k tksM+ ij vkdj cSB x;s FksA ftUgsa eSaus vkSj dY;k.k us ns[kk FkkA 8- eq>s ‘kadk gS fd bu nksuksa us gh jSdh djds ?kVuk djokbZ gS ;s Hkh bl ?kVuk esa fyIr gSaA** 13. It is clear that on 12.6.2013 first time Vikram Singh deposed that he has a doubt that the applicants were also involved in the incident. Whereas in his earlier deposition recorded during the trial of Dinesh and Shantilal, he does not say anything against the applicants, therefore, only on the basis of above deposition, it cannot be presumed that the applicants were involved in the offence. 14. The Hon’ble Supreme Court in the case of Sarabjit Singh (supra) held that the Court should not pass order under section 319 of CrPC unless a higher standard of evidence for the purpose of forming an opinion to summon a person is available then in extraordinary cases such jurisdiction be invoked sparingly. In this case, there is no prima facie evidence to presume that the applicants have committed the offence. 15. In this case, there is no prima facie evidence to presume that the applicants have committed the offence. 15. Learned ASJ has not assigned any sufficient and cogent reasons for summoning the applicants. I am of the considered view that there is no material, at this stage, to proceed against the applicants. 16. Thus, the impugned order is not sustainable in the law; therefore, it is set aside. 17. The revision is allowed. Copy of this order be sent to trial Court for compliance. ...................