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2016 DIGILAW 830 (ALL)

Kitti @ Himanshu v. State of U. P.

2016-03-04

PANKAJ NAQVI

body2016
JUDGMENT Pankaj Naqvi, J. Heard learned counsel for the revisionist and the learned A.G.A. 2. This criminal revision is directed against the order dated 20.2.2016, passed by the Addl. Sessions Judge (Court No.6), Aligarh in S.T. No.727/2012, P.S. Quarsi, Aligarh, summoning the revisionist under Section 319 Cr.P.C for offences under Sections 452/307/302 IPC. 3. The Court has perused the allegations made in the FIR and the statements of the witnesses. P.W.'s -1 & 2, i.e., Dinesh Kumar and Mohit Pathak respectively had assigned a specific role to the applicant in the commission of the alleged overt act. On the aforesaid evidence, the court below has summoned the applicant under Section 319 Cr.P.C which is impugned herein. 4. The Constitution Bench of the Apex Court in the case of Hardeep Singh v. State of Punjab and others, 2014 (3) S.C.C. 92 after analyzing the previous judgments of the Apex Court held in paragraphs 105 & 106 as under: - 105. Power under Section 319 Cr.P.C. is a discretionary and extraordinary power. It is to be exercised sparingly and only in those cases where the circumstances of the case so warrant. It is not to be exercised because the Magistrate or the Sessions Judge is of the opinion that some other persons may also be guilty of committing that offence. Only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised and not in a casual and cavalier manner. 106. Thus, a prima facie case is to be established from the evidence led before the court, not necessarily tested on the anvil of cross-examination, it requires much stronger evidence than mere probability of his complicity. The test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction. In the absence of such satisfaction, the court should refrain from exercising power under Section 319 Cr.P.C. In Section 319 Cr.P.C. the purpose of providing if "it appears from the evidence that any person not being the accused has committed any offence" is clear from the words "for which such person could be tried together with the accused". The words used are not "for which such person could be convicted". The words used are not "for which such person could be convicted". There is, therefore, no scope for the court acting under Section 319 Cr.P.C. to form any opinion as to the guilt of the accused. 5. Applying the law laid down in the case of Hardeep Singh (Supra), this court is of the view that the order impugned does not suffer from any illegality/impropriety The criminal revision is dismissed.