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Allahabad High Court · body

2017 DIGILAW 2512 (ALL)

SATYADEV SHARMA v. STATE OF U. P.

2017-11-02

VIJAY LAKSHMI

body2017
JUDGMENT : 1. This revision has been preferred against the judgment and order dated 29.08.2017 passed by learned Additional Chief Judicial Magistrate, Court No. 2, Aligarh whereby the learned court below while allowing the application under Section 319 Cr.P.C. has summoned the revisionist to face trial. 2. Heard learned counsel for the revisionist and learned A.G.A. Perused the record. 3. Learned counsel for the revisionist has submitted that the revisionist is the then Accountant of State Bank of India, Gonda Branch, district Aligarh. The respondent no. 2 is the account holder in his bank. She had made a request for supply of cheque book and her request was simply forwarded on line by the Branch Manager to the Head Office at NOIDA. The cheque book was supplied by the Head Office, NOIDA in the name of account holder by registered post and the revisionist has no role to play in supply of cheque book. It is next contended that the bank, after acquiring knowledge of the incident, proceeded to indemnify the respondent no. 2 by putting the amount bank in her account. It is further contended that earlier by an application, the State of U.P. had also moved an application under Section 319 Cr.P.C. which was rejected by the court below vide order dated 6.5.2017. However, the State of U.P. filed a revision against the aforesaid order and the revisional court, vide order dated 4.7.2017 allowed the revision and remanded the matter back to the court below to pass a fresh order on the application under Section 319 Cr.P.C. As a result, the impugned order has been passed by the court below. It is further submitted that the departmental enquiry against the revisionist and other co-accused bank employees is still pending and the revisionist will face the consequences of those enquiries but no criminal case is made out against him, therefore, the impugned order whereby he has been summoned to face criminal trial is liable to be set aside and the revision deserves be allowed. The contention of learned counsel for the revisionist is that under these circumstances there is hardly any chance of the conviction of the revisionist, whereas before exercising its jurisdiction under Section 319 Cr.P.C., a Court must arrive at a satisfaction that there exists a possibility that the accused so summoned, in all likelihood would be convicted. 4. The contention of learned counsel for the revisionist is that under these circumstances there is hardly any chance of the conviction of the revisionist, whereas before exercising its jurisdiction under Section 319 Cr.P.C., a Court must arrive at a satisfaction that there exists a possibility that the accused so summoned, in all likelihood would be convicted. 4. Per contra learned AGA has opposed the prayer of the revisionists by submitting that after the decision, rendered by Constitution Bench of Hon'ble Apex Court in Hardeep Singh's case, the law regarding summoning under Section 319 Cr.P.C. has been well settled. The revision is without any force and is liable to be dismissed at the admission stage itself. 5. Having heard learned counsel for the revisionists and learned A.G.A. and keeping in view the facts and circumstances of the case, this Court is of the considered view that the instant revision is liable to be dismissed at the admission stage itself for the following reasons:- 6. A Five Judges bench of Hon'ble Supreme Court in the case of Hardeep Singh vs. State of Punjab and others [2014 (1)JIC 539 (S C)] has set at rest the entire controversy with regard to the scope and extent of Section 319 Cr.P.C. which had arisen due to variety of views having been expressed by several High Courts and also by the Supreme Court. 7. Noticing the conflicting views between the two judgments of the Hon'ble Supreme Court in the case of Rakesh vs. State of Haryana, 2001 (2) JIC 757 (SC) : AIR 2001 SC 2521 ; and Mohd. Shafi vs. Mohd. Rafiq & another, 2007 (2) JIC 490 (SC), a doubt was expressed about the correctness of Mohd. Shafi Vs. Mohd. Rafiq and another (2007) 14 SCC 544 which led to the framing of following five questions by Constitutional Bench in Hardeep Singh case:- 1. What is the stage at which power under Section 319 Cr.P.C. can be exercised? 2. Whether the word "evidence" used in Section 319 (1) Cr.P.C. could only mean evidence tested by cross-examination or the Court can exercise the power under the said provision even on the basis of the statement made in the examination-in-chief of the witness concerned? 3. What is the stage at which power under Section 319 Cr.P.C. can be exercised? 2. Whether the word "evidence" used in Section 319 (1) Cr.P.C. could only mean evidence tested by cross-examination or the Court can exercise the power under the said provision even on the basis of the statement made in the examination-in-chief of the witness concerned? 3. Whether the word "evidence" used in Section 319 (1) Cr.P.C. has been used in a comprehensive sense and includes the evidence collected during investigation or the word "evidence" is limited to the evidence recorded during trial? 4. What is the nature of the satisfaction required to invoke the power under Section 319 Cr.P.C. to arraign an accused? Whether the power under Section 319 (1) Cr.P.C. can be exercised only if the Court is satisfied that the accused summoned will in all likelihood convicted? 5. Does the power under Section 319 Cr.P.C. extend to persons not named in the FIR or named in the FIR but not charged or who have been discharged? Answering the aforesaid questions, the Hon'ble Constitutional Bench of Supreme Court expressed its clear view that neither cross-examination of witness is required before summoning an additional accused under section 319 Cr.P.C., nor any categorical finding to the affect that in all likelihood the person summoned may be convicted, is necessary before exercising such power. According to Hon'ble Apex Court:- "What is required is not to have a mini-trial at this stage by having examination and cross-examination and thereafter rendering a decision on the overt act of such person sought to be added. In fact it is this mini-trial that would affect the right of the person sought to be arraigned as an accused rather than not having any cross-examination at all, for in light of sub section (4) of Section 319 Cr.P.C., the person would be entitled to a fresh trial where he would have all the rights including the right to cross-examine prosecution witnesses. Therefore, even on the basis of Examination-in-chief, the court can proceed against a person as long as the court is satisfied that the evidence appearing against such person prima facie necessitates bringing such person to face trial. In fact, Examination-in-Chief untested by cross-examination, undoubtedly in itself, is an evidence. 8. Therefore, even on the basis of Examination-in-chief, the court can proceed against a person as long as the court is satisfied that the evidence appearing against such person prima facie necessitates bringing such person to face trial. In fact, Examination-in-Chief untested by cross-examination, undoubtedly in itself, is an evidence. 8. In view of the above, we hold that power under Section 319 Cr.P.C. can be exercised at the stage of completion of examination-in-chief and Court does not need to wait till the said evidence is tested on cross-examination.......There is no scope for the Court acting under Section 319 Cr.P.C. to form any opinion as to the guilt of the accused........... 9. Though under Section 319 (4) (b) Cr.P.C. the accused subsequently impleaded is to be treated as if he had been an accused when the Court initially took cognizance of the offence, the degree of satisfaction that will be required for summoning a person under Section 319 Cr.P.C. would be the same as for framing a charge." 10. In wake of the above cited legal position, there appears no substance in the arguments advanced by learned counsel for the revisionist that the revisionist has been wrongly summoned without any likelihood of his conviction. 11. The revision without any force. It is liable to be dismissed at the admission stage and is accordingly dismissed. 12. At this juncture, learned counsel for the revisionist prayed that the revisionist is ready to surrender before the court and to move bail application and the court below be directed to consider his bail application expeditiously in accordance with the law as laid down by this Court in the Full Bench decision of Amrawati and another Vs. State of U.P. 2004 (57) ALR 290 affirmed by Hon'ble Supreme Court in the case of Lal Kamlendra Pratap Singh Vs. State of U.P. 2009 (3) ADJ 322 (SC). 13. Learned AGA has no objection against the aforesaid prayer. 14. As the law laid down in both the aforesaid cases, should be complied with in letter and spirit, by all courts, it is expected from the trial court that in case the revisionist surrenders before it within 45 days from today and applies for bail it will decide his bail application in wake of the law laid down by this Court in the Full Bench decision of Amrawati and another Vs. State of U.P. 2004 (57) ALR 290 and affirmed by Hon'ble Supreme Court in the case of Lal Kamlendra Pratap Singh Vs. State of U.P. 2009 (3) ADJ 322 (SC). 15. For the aforesaid period of 45 days only, which shall not be extended any further, no coercive action shall be taken against the revisionist in the aforesaid case. In case of default the court below will be at liberty to take coercive measures against the revisionist.