Allahabad High Court
Amrendra Pal & Another vs State Of U.P. & Another on 14 February, 2020
Author: Chandra Dhari Singh
Bench: Chandra Dhari Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Reserved Court No. - 14 Case :- U/S 482/378/407 No. - 4250 of 2019 Applicant :- Amrendra Pal & Another Opposite Party :- State Of U.P. & Another Counsel for Applicant :- Anand Prakash Pandey,Surya Prakash Mishra Counsel for Opposite Party :- Govt. Advocate,Chandra Bhusan Pandey Hon'ble Chandra Dhari Singh,J.
1. This petition under section 482 Cr.P.C. has been filed with the prayer to quash to order dated 02.01.2019 passed by the learned Additional Sessions Judge, Court no.1, Ambedkar Nagar in Sessions Trial No.118 of 2016 (State vs. Praveen Pal alias Anshu Pal) whereby the application under section 319 Cr.P.C. has been allowed and the petitioners have been summoned.
2. Learned counsel for the petitioners has submitted that opposite party no.2 has filed an application under section 319 Cr.P.C. for summoning the petitioners and the learned trial court without applying the judicial mind and without consideration the statements as well as law laid down by Hon'ble the Apex Court has summoned the petitioners to face the trial under sections 147, 148, 149, 302 of the Indian Penal Code. It has also been submitted that while recording the statements under section 161 Cr.P.C. of Sohan Singh, Uma Shanker Singh, Sanjay Singh, Adarsh Singh, Dhanurdhari, Ganesh Pandey, they have clearly stated that the petitioners were not involved in the occurrence as alleged. It has further been submitted that the court below while exercising the power under section 319 Cr.P.C. must have reasonable satisfaction that there exist the possibility that the accused so summoned is in likelihood would be convicted. It has been submitted that the learned Magistrate has mechanically passed the order despite the fact that there was no strong and cogent evidence on record even at the time of the trial.
3. In support of his arguments, learned counsel for the petitioners has placed reliance on the case of Mohd. Shafi vs. Mohd. Rafiq and another (2007) 14 SCC 544 in which the Hon'ble Apex Court has held that 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. Such satisfaction can be arrived at inter alia upon completion of the cross-examination of the said witness or the court concerned may also like to consider other evidence available before it.
4. Learned counsel has further submitted that summoning order has been passed without considering all relevant evidences required in light of judgment given by the Apex Court in the cases of Hardeep Singh vs. State of Punjab and others (2014) 3 SCC 92; Brijendra Singh and others Vs. State of Rajasthan; 2017 (100) ACC 601; Rajesh and others vs. State of Haryana (2019) 6 SCC 368 and Bhajju @ Karan Singh vs. State of Madhya Pradesh (2012) 4 SCC 327.
5. Relying upon the decision in the case of Bijendra Singh (supra), it is vehemently submitted by the learned counsel appearing on behalf of the petitioners that merely on the basis of the deposition of the complainant and some other persons, with no other material to support their socalled verbal/ocular version, no person can be arrayed as an accused in exercise of powers under Section 319 of the CrPC. It is submitted that, in the aforesaid decision, such an "evidence" recorded during the trial is nothing more than the statements which was already there under Section 161 of the CrPC recorded at the time of investigation of the case.
6. Learned counsel further submitted that there is apparent contradiction in the statements given by the witnesses before the trial Court, therefore, it is necessarily required upon the part of learned Judge to consider the relevant facts before passing the impugned order. Lastly he prayed that the impugned order which has been passed in a routine manner, without application of judicial mind, be set aside.
7. Learned A.G.A. for the State has vehemently opposed the prayer made by the learned counsel for the petitioners and stated that there is sufficient evidence and prima-facie, a case is made out against the petitioners for summoning them as accused. It has also been submitted that the 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. It has further been submitted that while allowing the application under section 319 Cr.P.C., the court below has found that there are sufficient material on the record to summon them. There is no illegality or error in the order passed by the court below and the petition is liable to be dismissed. He has also relied upon some of the observations made by this Court in the case of Hardeep Singh (supra) and even some of the observations made by this Court in the case of Bijendra Singh (supra).
8. I have heard learned counsel for the parties and perused the record. I have also perused the impugned order passed by the court below.
9. In the case of Mohd. Shafi (Supra) Hon'ble the Apex Court has held that for the exercise of the power under Section 319 Cr.P.C. is that, it must appear to the court that some other person also who is not facing the trial, may also have been involved in the offence. The pre-requisite for the exercise of this power is similar to the prima-facie view which the magistrate must come to in order to take cognizance of the offence. Therefore, no straight-jacket formula can and should be laid with respect to conditions precedent for arriving at such an opinion and, if the Magistrate/Court is convinced even on the basis of evidence appearing in Examination-in-Chief, it can exercise the power under section 319Cr.P.C. and can proceed against such other person(s). It is essential to note that the Section also uses the words ''such person could be tried' instead of should be tried. Hence, 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 and examine defence witnesses and advance his arguments upon the same.
10. Thus, it is very clear that power under Section 319 Cr.P.C. can be exercised by the Court against a person not named in First Information Report or no charge-sheet is filed by Police against him and the accused can be summoned only on the basis of examination-in-chief of witness and need not wait for cross-examination etc. Thus, on the basis of Examination- in-Chief, the Court or the Magistrate can proceed against a person as long as the court is satisfied that the evidence appearing against such person is such that prima facie a case is made out against him.
11. In view of above, Court below, was well within its power to summon the petitioners under Section 319 Cr.P.C. on being prima facie satisfied about involvement of petitioners in commission of offence, on the material brought before it and, therefore, impugned summoning order cannot be faulted. I, therefore, find no reason to interfere.
12. The petition is dismissed.
Order Date :- 14.02.2020 VNP/-