Research › Search › Judgment

Allahabad High Court · body

2018 DIGILAW 1263 (ALL)

Shiv Pratap v. State of U. P.

2018-05-18

MUKHTAR AHMAD

body2018
JUDGMENT & ORDER : MUKHTAR AHMAD, J. 1. Heard Sri Sudhir Kumar Agarwal, learned Counsel for the applicant and learned AGA. 2. This application is being disposed of finally with the consent of learned Counsel for the parties. 3. This application under Section 482 Cr.P.C has been moved with the prayer to quash the entire criminal proceedings of S.T. No. 1329 of 2010 (State Vs. Shiv Kumar & others) arising out of Case Crime No. 429-A of 2008 under Sections 147,148,149,302 IPC, Police Station Thana Bhawan district, Shamli pending in the Court of Addl. Sessions Judge, Court No.-6, Muzaffar Nagar. 4. Facts giving rise to this application are that a first information report was lodged by Abdul Majeed against unknown persons alleging that they had committed murder of his son Intezar. During investigation, names of Shiv Kumar, Mange Ram @ Manga, Kallu, Arvind, came into light and the charge sheet under Sections 147,148,149 and 302 IPC was submitted against accused persons. Thereafter, trial commenced and evidence of P.W.1 Abdul Majeed-first informant and Farid-P.W.2 were recorded. P.W.1 was not an eye witness of the incident. He has depicted that all about the incident was disclosed by Farid who was accompanying deceased-Intezar at the time of incident. P.W.2-Farid has stated in his oral testimony that when he and Intezar reached in village Jafarpur where Panchayat was going on in which, Shiv Kumar, Johny, Chakmal, Shiv Pratap, Mange Ram, Kallu and Arvind were also present who were having lathi-danda in their hands. These accused persons assaulted him and Intezar. He further stated that these persons were saying that we used to administer poison in the night to the animals and after their death came in the day hours to carry the dead bodies of the animals. Since, the name of Shiv Pratap-applicant was disclosed by the P.W.2 in his testimony, an application under Section 319 Cr.P.C was moved on behalf of prosecution praying therein to summon the applicant-Shiv Kumar for facing trial along with other accused persons. That application has been allowed vide order dated 24.8.2017 and the applicant-Shiv Pratap has been summoned for facing trial. 5. Submission of learned Counsel for the applicant is that the applicant was neither named in the first information report, nor charge sheeted and merely on the ground that his name was disclosed by Farid in his testimony, he has been summoned. 5. Submission of learned Counsel for the applicant is that the applicant was neither named in the first information report, nor charge sheeted and merely on the ground that his name was disclosed by Farid in his testimony, he has been summoned. It has also been argued that as per prosecution version, Farid was present on the spot with the deceased and when he was knowing all accused persons and every thing about the incident which was disclosed to the first informant-father of deceased, then why the first information report was lodged against unknown persons. It is contended that learned Trial Court has not recorded the satisfaction about prima facie case against the applicant. It is further contended that for summoning an accused at the time of taking cognizance, the Court has to see that whether prima facie case is made out to prosecute the accused, but under section 319 Cr.P.C., though the test of prima facie case is the same, but the degree of satisfaction that is required is much stricter. It is next submitted that the Court while summoning any person under Section 319 Cr.P.C is required to form an opinion that the evidence adduced by the prosecution, if un-rebutted, may lead to conviction and in this case, learned Trial Court has not considered these legal aspect and has summoned the accused-applicant in a routine way. 6. Learned AGA has opposed these arguments and supported the impugned order. 7. In view of submissions as has been made on behalf of learned Counsel for the parties and after perusal of the material available on record, I am of the view that it is well settled legal position that even if a person is not named in the first information report nor charge sheeted, he may be summoned under Section 319 Cr.P.C, however, the test of prima facie case is stricter. In the case of Vikas. Vs. State of Rajasthan, (2013) 11 SCALE 23 it has been held that on the objective satisfaction of the Court, a person may be 'arrested' or 'summoned', as the circumstances of the case may require, if it appears from the evidence that any such person, not being the accused has committed an offence for which such person could be tried together with the already arraigned accused persons. In the case of Mohd. Shafi Vs. Mohd. In the case of Mohd. Shafi Vs. Mohd. Rafiq & anr., (2007) AIR SC 1899, the Apex Court has held that it is evident that before a Court exercises its discretionary jurisdiction in terms of Section 319 Cr.P.C, it must arrive at a satisfaction that there exists a possibility that the accused so summoned in all likelihood would be convicted. In the case of Brindaban Das & others Vs. State of West Bengal, (2009) AIR SC 1248, the Apex Court has taken similar view observing that the Court is required to consider whether evidence would be sufficient to convict the person being summoned. In Michael Machado & another Vs. Central Bureau of Investigation, (2000) AIR SC 1127, similar view has been reiterated by the Apex Court. 8. In view of the decisions cited above, perusal of the impugned order dated 24.8.2017 shows that learned Trial Court in the matter in hand has summoned the accused-applicant on the ground that he was named by P.W-2(Farid) and the satisfaction of the Court has not been described which is required for the Court in view of law cited above. Hence, the impugned order dated 24.8.2017 is liable to be set aside and application under Section 319 Cr.P.C is required to be heard and decided afresh. 9. For the discussion made above, this application is allowed setting aside the impugned order dated 24.8.2017 passed by learned Addl. Sessions Judge, Court No.-6, Muzaffar Nagar in S.T. No. 1329 of 2010 (State Vs. Shiv Kumar & others) arising out of Case Crime No. 429-A of 2008 under Sections 147,148,149,302 IPC, Police Station Thana Bhawan district, Shamli pending in the Court of learned Addl. Sessions Judge, Court-6, Muzaffar Nagar and the learned Trial Court concerned is directed to hear and decide the application under Section 319 Cr.P.C afresh, in accordance with law.