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2019 DIGILAW 752 (ALL)

Machchhar v. State of U. P.

2019-03-26

RAHUL CHATURVEDI

body2019
JUDGMENT : Rahul Chaturvedi, J. 1. Heard learned counsel for the revisionists and learned A.G.A. 2. By means of the instant revisionist, the revisionists are assailing the veracity and validity of summoning order dated 29.1.2019 passed by the Sessions Judge, Firozabad under Section 319, Cr.P.C. whereby the court concerned has summoned the revisionists to face trial for the offence under Sections 304 and 342, I.P.C. in S.T. No. 128 of 2019 arising out of Case Crime No. 208 of 2017 (State v. Babloo and others), P.S. Matsena, District Firozabad. 3. Learned counsel for the revisionists submitted that the names of the revisionists, though named in the F.I.R. but during investigation their names were found to be falsely implicated, resultantly, names of the present revisionists were dropped and charge-sheet was submitted against Babloo, Sunny alias Bunty and Kallu only. Thereafter the case was committed to the Court of Sessions, where statements of P.W. 1 Manju and P.W. 2 Kamlesh were recorded, who took the names of the present revisionists-Machchar alias Mangla and Smt. Afsana Begum in commission of the crime whereupon the prosecution filed application under Section 319, Cr.P.C., which was admitted by the court concerned the present revisionists were summoned to face trial for the offence under Sections 304 and 342, I.P.C. and fixed date of appearance on 7.2.2019 vide order dated 29.1.2019. To buttress his submissions, learned counsel for the revisionists has relied upon the principles of law enunciated in the case of Sugreev Kumar v. State of Punjab and others, 2019 LawSuit (SC) 818; Hardeep Singh v. State of Punjab and others, (2014) 3 SCC 92 ; Labhuji Amratji Thakor and others v. State of Gujarat and another, passed in Criminal Appeal No. 1349 of 2018 arising out of S.L.P. (Crl) No. 6392/2018; Amrutbhai Shambhubhai Patel v. Sumanbhai Kantibhai Patel and others, (2017) 4 SCC 177 and Pariyasami and others v. S. Nallasamy, 2019 LawSuit (SC) 790. 4. Learned counsel for the revisionist next submitted that in the aforesaid order impugned, the trial court nowhere recorded satisfaction, which is mandatory requirement of law. In the latest case of Sugreev Kumar (supra) the learned Apex Court while adjudicating a similar matter laid down principles of law, relevant portion of which is extracted herein below: "12....Thus, the provisions contained in Section 319, Cr.P.C. sanction the summoning of any person on the basis of any relevant evidence as available on record. In the latest case of Sugreev Kumar (supra) the learned Apex Court while adjudicating a similar matter laid down principles of law, relevant portion of which is extracted herein below: "12....Thus, the provisions contained in Section 319, Cr.P.C. sanction the summoning of any person on the basis of any relevant evidence as available on record. However, it being a discretionary power and an extraordinary one, is to be exercised sparingly and only when cogent evidence is available. The prima facts opinion which is to be formed for exercise of this power requires stronger evidence than mere probability of complicity of a person. The test to be applied is the one which is more than a prima facie case as examined at the time of framing charge but not of satisfaction to the extent that the evidence, if goes uncontroverted, would lead to the conviction of the accused..." 5. Having given anxious consideration to the rival submissions and having examined the record with reference to the law applicable, this Court is clearly of the view that the disposal of application moved in this matter under Section 319, Cr.P.C. cannot be approved; and in the given set of facts and circumstances, it appears just and proper that the trial court should re-examine the entire matter with reference to the principles applicable to the case, in order to take a decision afresh as to whether the persons above-named or any of them deserve to be tried together with the other accused persons. 6. This Court has perused the order impugned carefully alongwith the submission of the learned counsel for the applicant. In consonance of the principles of law laid down by the Apex Court enunciated in the cases referred herein above, this Court is of the considered opinion that the satisfaction required to be recorded by the court concerned while passing the order impugned is missing, therefore, the order dated 29.1.2019 passed by the Sessions Judge, Firozabad under Section 319, Cr.P.C. in S.T. No. 128 of 2019 arising out of Case Crime No. 208 of 2017 (State v. Babloo and others) under Sections 304 and 342, I.P.C., P.S. Matsena, District Firozabad is not sustainable in the eyes of law and is, accordingly, set aside. 7. 7. The matter is remanded to the court concerned for reconsidering the matter on merits, without being influenced by any observation made herein above, regarding facts of the case but with due regard to the evidence on record and to the law applicable. 8. The application is disposed of accordingly.