Sunil Kumar And Another vs State Of U.P. And Another
2011 Latest Caselaw 6230 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 45
 

 
Case :- APPLICATION U/S 482 No. - 15826 of 2006
 

 
Petitioner :- Sunil Kumar And Another
 
Respondent :- State Of U.P. And Another
 
Petitioner Counsel :- Sudhanshu Srivastava
 
Respondent Counsel :- Govt. Advocate,Anurag Pathak
 

 
Hon'ble Shri Kant Tripathi,J.

Rejoinder affidavit filed on behalf of the petitioners is taken on record.

Heard learned counsel for the petitioners and the learned AGA for the State and perused the record.

This is a petition under section 482 Cr.P.C. for quashing the order dated 25.11.2006 rendered by the learned Additional Sessions Judge, Court No. 6, Saharanpur in S.T. No. 347 of 2006 (State v Narendra & others) whereby the learned Additional Sessions Judge, on perusal of the statement of the injured witness, has summoned the petitioner under section 319 Cr.P.C.

The learned counsel for the petitioners submitted that the summoning order has been passed without providing any opportunity to the accused to make cross examination of the injured, therefore, it was bad. In this regard learned counsel for the petitioners relied upon [2007 (2) JIC 490 (SC) Mohd. Shafi v Mohd. Rafiq & another. In that case the Apex Court held that the summoning order without cross examination would not be proper.

There is a diversant view on the point whether cross examination has to be done of the witness before passing summoning order or not. Some of the decisions are in favour of the petitioners and some of them are against them. Most of the decisions on this point have been considered by this Court in the case of Rajol v State of U.P. 2010(5) ADJ 6280. The observations made in paragraph 21 of the Rajol's case (supra), being relevant on the point, is reproduced as follows:

?A survey of the aforesaid decisions clearly reveals that the power under section 319 CrPC is an extra ordinary power, which may be used very sparingly only if compelling or cogent reasons exist against the person sought to be summoned. The term 'evidence' used in section 319 CrPC does not necessarily mean the evidence which is tested by cross examination. The view expressed in the case of Mohd. Shafi (supra) in this regard, has not been subsequently followed by the Apex Court in the cases of Sarabjeet Singh (supra). The view expressed in the case of Sarabjeet Singh (supra) has also been expressed in the case of Rakesh (supra), Hardeep (supra) and Harbhajan (supra), therefore, a summoning order can not be set aside on the ground that the statements of the witnesses relied on by the court for passing the summoning order, have not been subjected to cross examination. It is true that a Division Bench of the Apex Court in Hardeep Singh's (supra) has referred the questions specified in paragraph 11 of this judgment to a Larger Bench but another Division Bench of the Apex Court in Harbhajan Singh's case (supra) has observed that the same would not mean that we should wait the decision of the Larger Bench. The accused sought to be summoned, has no right to be heard on the application under section 319 CrPC, therefore, he has no right to cross-examine the witnesses being examined for the purpose of section 319 CrPC. The accused already facing the trial may or may not like to make cross-examination of the witnesses in regard to the complicity of the person sought to be summoned. Sometimes such accused may act even contrary to the interest of such persons. However, the court may, in its discretion, allow the accused already facing the trial to cross examine the witness or witnesses in relation to the complicity of the person sought to be summoned so as to enable it to render a just and proper order under section 319 CrPC. In this view of the matter, there is no compulsion to get part or full cross-examination of the witnesses done before passing a summoning order under section 319 CrPC. In appropriate cases if the complicity of a person not facing the trial and is not before the court as accused, comes in light in the statement of a witness, it is also open to the court to put relevant questions to the witness to ascertain prima facie correctness of the statement regarding complicity of that person. The Trial Judges and Magistrates have to play pivotal roles in the matter and should not act mere as silent spectators. Therefore, the summoning order under section 319 CrPC can not be quashed only on the ground that the witnesses have not been cross examined.?

In view of the aforesaid observations made in Rajol's case, it is crystal clear that as and when any witness is examined for the purpose of section 319 Cr.P.C., the person ought to be summoned, has no opportunity or right to cross examine the witness. That question arises after appearance of the accused in pursuance of the summoning order. The accused already facing trial may or may not like to cross examine the witness. In this view of the matter only on account of the fact that the witness was not cross examined, the summoning order cannot be said to be illegal.

In a recent case of Sarojben Ashwinkumar Shah etc v State of Gujrat in Criminal Appeal Nos. 1554-1557 of 2011 the Apex Court has propounded the following guidelines to be observed by the trial courts while passing an order under section 319 Cr.P.C.

"(i) The Court can exercise the power conferred on it under Section 319 of the Code suo motu or on an application by someone.

ii.The power conferred under Section 319(1) applies to all courts including the Sessions Court.

(iii) The phrase "any person not being the accused" occurring in Section 319 does not exclude from its operation an accused who has been released by the police under Section 169 of the Code and has been shown in Column 2 of the charge-sheet. In other words, the said expression covers any person who is not being tried already by the court and would include person or persons who have been dropped by the police during investigation but against whom evidence showing their involvement in the offence comes before the court.

(iv) The power to proceed against any person, not being the accused before the court, must be exercised only where there appears during inquiry or trial sufficient evidence indicating his involvement in the offence as an accused and not otherwise. The word `evidence' in Section 319 contemplates the evidence of witnesses given in court in the inquiry or trial. The court cannot add persons as accused on the basis of materials available in the charge- sheet or the case diary but must be based on the evidence adduced before it. In other words, the court must be satisfied that a case for addition of persons as accused, not being the accused before it, has been made out on the additional evidence let in before it.

v.The power conferred upon the court is although discretionary but is not to be exercised in a routine manner. In a sense, it is an extraordinary power which should be used very sparingly and only if evidence has come on record which sufficiently establishes that the other person has committed an offence. A mere doubt about involvement of the other person on the basis of the evidence let in before the court is not enough. The Court must also be satisfied that circumstances justify and warrant that other person be tried with the already arraigned accused.

(vi) The court while exercising its power under Section 319 of the Code must keep in view full conspectus of the case including the stage at which the trial has proceeded already and the quantum of evidence collected till then. (vii) Regard must also be had by the court to the constraints imposed in Section 319 (4) that proceedings in respect of newly - added persons shall be commenced afresh from the beginning of the trial.

(viii) The court must, therefore, appropriately consider the above aspects and then exercise its judicial discretion."

The learned counsel for the petitioner could not point out any ground to bring his case within the ambit of any of the above 08 guidelines given in Sarojben (supra) case.

The learned trial court appears to have passed the impugned order on proper appraisal of the relevant evidence on record, therefore, I do not find any ground to interfere with the matter.

The petition has no merit and is, accordingly, dismissed. The interim order, granted earlier, stands vacated.

Order Date :- 30.11.2011

shailesh