Allahabad High Court
Shyam Veer vs State Of U.P. on 7 September, 2010
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 53 Case :- CRIMINAL REVISION No. - 3553 of 2010 Petitioner :- Shyam Veer Respondent :- State Of U.P. Petitioner Counsel :- Dr. C.P. Upadhyay Respondent Counsel :- Govt. Advocate Hon'ble Shri Kant Tripathi,J.
1. With the consent of the learned counsel for the revisionist this revision is disposed of at the stage of admission.
2. Heard Sri C.P. Upadhyay, learned counsel for the revisionist and the learned A.G.A. for the respondent no. 1 and perused the record.
3. This is a revision against the order dated 15.3.2010 passed by the Additional Sessions Judge, Court No. 9, Mathura in S.T. No. 262 of 1997, State vs. Ram Veer and others whereby the learned Additional Sessions Judge has summoned the revisionist under section 319 Cr.P.C. for trial in respect of the offence under section 302/34 I.P.C.
4. During the trial, the prosecution examined P.W. 1, Munish Kumar (complainant ) and the summoning order has been passed on the basis of the statement of this witness. Sri Upadhyay submitted that the revisionist was in jail on the date of occurrence and therefore his presence at the time of occurrence was false. Therefore, the summoning order has been passed without application of mind to the facts of the case. The sole statement of the complainant, Munish Kumar, who has a long enmity with the revisionist, was not sufficient to summon the revisionist. The learned Additional Sessions Judge should have examined other witnesses of the case before passing the summoning order. It was further submitted that the learned Additional Sessions Judge nowhere arrived at the conclusion that the evidence of P.W. 1, Munish Kumar, if uncontroverted would reasonably lead to the conviction of the revisionist. In absence of any finding in this regard, the summoning order is bad.
5. It is well settled that the power under section 319 Cr.P.C. should be exercised sparingly only when the evidence adduced in support of the application under section 319 Cr.P.C., if uncontroverted would reasonably lead to the conviction of the person sought to be summoned. Therefore, it is the duty of the trial court to see whether or not the evidence on record, if uncontroverted would be sufficient to record a valid conviction. In absence of any finding, the summoning order cannot be upheld.
6. In the case of Sarabjit Singh and another vs. State of Punjab and another 2009 (66) ACC 32, the Apex Court held that indisputably, before an additional accused can be summoned for standing trial, the nature of the evidence should be such which would make out grounds for exercise of extraordinary power. The materials brought before the court must also be such which would satisfy the court that it is one of those cases where its jurisdiction should be exercised sparingly. The Apex Court further observed that an order under section 319 CrPC, therefore, should not be passed only because the first informant or one of the witnesses seeks to implicate other person. Sufficient and cogent reasons are required to be assigned by the court so as to satisfy the ingredients of the provisions. Mere ipse dixit would not serve the purpose. Such an evidence must be convincing one at least for the purpose of exercise of the extraordinary jurisdiction. After making these observations, the Apex Court further held that the courts are required to apply stringent tests; one of the tests being whether evidence on record is such which would reasonably lead to conviction of the person sought to be summoned.
7. In Sarabjeet Singh's case, the Apex Court further observed that mere existence of a prima facie case may not serve the purpose. Different standards are required to be applied at different stages. Whereas the test of prima facie case may be sufficient for taking cognizance of an offence at the stage of framing of charge, the Court must be satisfied that there exists a strong suspicion. While framing charge in terms of section 227 CrPC, the court must consider the entire materials on record to form an opinion that the evidence if unrebutted would lead to a judgment of conviction. Whether a higher standard be set up for the purpose of invoking the jurisdiction under section 319 CrPC is the question. The answer to these questions should be rendered in the affirmative. Unless a higher standard for the purpose of forming an opinion to summon a person as an additional accused is laid down, the ingredients thereof, viz., (I) an extraordinary case and (ii) a case for sparingly exercise of jurisdiction, would not be satisfied.
8. Another Division Bench of the Apex Court in the case of Brindaban Das and others vs. State of West Bengal, 2009 (66) ACC 273, propounded the same principle and held that in matters relating to invocation of powers under section 319 CrPC, the Court is not merely required to take note of the fact that the name of a person who has not been named as an accused in the FIR has surfaced during the trial, but the Court is also required to consider whether such evidence would be sufficient to convict the person being summoned. The Apex Court further observed that the fulcrum on which the invocation of section 319, CrPC rests is whether the summoning of persons other than the named accused would make such a difference to the prosecution as would enable it not only to prove its case but to also secure the conviction of the persons summoned.
9. In the case of Michael Machado & Anr. V. Central Bureau of Investigation & Anr., (2000) 3 SCC 262, the Apex Court propounded that power under section 319 CrPC vested in the Court should be used sparingly and the evidence on which the same was to be invoked should indicate a reasonable prospect of conviction of the person sought to be summoned.
10. The prospects of conviction as one of the requirement for summoning a person as accused under section 319 CrPC has been propounded even in the case of Krishnappa vs. State of Karnataka, 2004 (7) SCC 792. It has been held in that case that invocation of the power under section 319 CrPC should not have been resorted to, since the chances of conviction on the basis of the evidence on record was remote. Applying the principles laid down in the cases of Michael Machado, the Apex Court further ruled that the power to summon an accused is an extraordinary power conferred on the Court and it should be used very sparingly and only if compelling reasons exist for taking cognizance against the person other than the accused.
11. After considering the aforesaid case laws and few other decisions of the Apex Court, this Court in the case of Rajol and others vs. State of U.P. and another, 2010 (5) ADJ, Page 628, has observed in para 22 as follows:-
"22. In the cases of Sarabjeet (Supra), Brindawan Das, Michael Machado (supra) and Krishnappa (supra), it has been clearly held that summoning order should be passed only when the evidence, if uncontroverted, is of such a nature as to reasonably lead to conviction of the person sought to be summoned. The standard of evidence required for summoning an additional accused should be higher than the evidence required for framing charges because the jurisdiction under section 319 CrPC is to be exercised sparingly in an extra ordinary situation. Whether or not any evidence is of such a quality as to record conviction if it remains uncontroverted, is a variable question depending upon the facts and circumstances of each case and no hard and fast rule can be laid down in this regard. However, the court considering the evidence for the purpose of section 319 CrPC is not legally required to evaluate the evidence as it is ordinarily done while rendering the final judgment but the court has to see whether or not, the evidence on record appeals to the reason for the purposes of section 319 CrPC and the story narrated by the witnesses against the person sought to be summoned is not improbable and absurd and a conviction is possible on such statements, if uncontroverted. A non observance of this legal requirement would render the summoning order illegal. "
12. For the reasons discussed above, the revision is allowed. The impugned order 15.3.2010 is set aside. The learned Additional Sessions Judge, Court No. 9, Mathura is directed to re-consider the application moved under section 319 Cr.P.C. in the light of the observations made hereinbefore and pass an appropriate order afresh in accordance with law.
Order Date :- 7.9.2010 Naresh