Allahabad High Court
Rajpal Singh And Others vs State Of U.P. And Another on 31 August, 2012
Bench: Arvind Kumar (Ii)
HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
Reserved
Case :- CRIMINAL REVISION No. - 816 of 2010
Petitioner :- Rajpal Singh And Others
Respondent :- State Of U.P. And Another
Petitioner Counsel :- Vijaya Prakash
Respondent Counsel :- Govt. Advocate,A.P.Mishra
Hon'ble Arvind Kumar Tripathi (II),J.
This Crl. Revision has been filed by Raj Pal Singh and others against the order dated 09.02.2010 passed by Additional District and Sessions Judge, Fast Track Court, Court No. 5, Meerut, in S.T. No. 206 of 2009 by which application under section 319 Cr. P. C. has been allowed and Suresh, Raj Kumar and Mool Chand were summoned for facing trial under section 308, 323, 325 I.P.C.
From perusal of the record, it is evident that a First Information Report was lodged by Shushil against Suresh s/o Tikram, Sanjay s/o Suresh, Neeraj s/o Suresh Pal, Raj Kumar s/o Kamlesh, r/o Gansadhal, Rajpal s/o Kuldeep r/o Sadhan, P.S. Inchauli, District Meerut, on 06.09.2008. After investigation, charge-sheet was submitted only against Neeral and Sanjay S/o Suresh Pal. After filing charge-sheet, the case was committed to the court of sessions. Charges were framed against Neeraj and Sanjay under section 308, 325, 323 I.P.C. Suresh was examined by the prosecution as P.W.1. After examination-in-chief, an application was moved by the prosecution for summoning the accused persons Raj Pal Singh, Suresh, Raj Kumar and Mool Chand under section 319 Cr.P.C. Learned trial court after hearing the prosecutor summoned those accused persons to face trial under sections 308, 323, 3235 Cr.P.C. Feeling aggrieved this criminal revision has been preferred.
I have heard Sri Vijay Prakash, learned counsel for the revisionist and learned AGA for the State.
Respondent No. 2 did not appear despite service.
It was argued from the side of revisionists that only on the basis of examination-in-chief of informant Shushil, revisionists could not be summoned. Learned court below has not recorded its satisfaction that accused persons summoned in all likelihood would be convicted, hence impugned order is not sustainable in the eye of law and same is liable to be set aside.
Learned counsel for the revisionist relied upon the decision of the Apex Court in the cases of (1) Sasrabjit Singh and another vs. State of Punjab and another (2009 (66) ACC 32, (2) Ansasr & others vs. State of U.P. And another (Lucknow Bench) UP Cr.R,2011 (1) 283 and (3) Hichha Lal Gupta vs. State of U.P. ACC 2011 (74) 447.
Learned AGA argued that cross-examination of the witnesses is not the sufficient while exercising the power under section 319 Cr.P.C. It is a satisfaction of the court which accounts. In view of this the order of the trial court is perfectly justified.
This Court has in the case of Ansar and other vs. State of U.P. And another 2011 (1) U.P. Criminal Ruling 283 and Hichha Lal Gupta vs. Staee of U.P. 2011 (74) ACC 447 dealt with the ambit and scope of provisions of section 319 Cr.P.C. in the light of decision of Apex Court in Sarabjeet's case (supra).
This Court has also in the case of Rajol vs. State of U.P. 2010 (71) ACC 394 held that:-
"In the case of Sarabjeet (supra), Brindawan Das and others vs. State of West Bengal1, Michael Machado and another vs. Central Bureau of Investigation and another2 and Krishnappa vs. State of Karnataka3, it has been clearly held that summoning order should be passed only when the evidence, if uncontroverted, is of such a nature as to reasonable 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 Cr.P.C. 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 Cr.P.C. is not legally required to evaluate the evidence as it is ordinarily done while render in 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 Cr.P.C. 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".
1. 2009 (1) U.P. Crl. R 492 (SC),
2. (2000) 3 SCC 262
3. 2004 (7) SCC 792
In the instant case the court below while passing the order under section 319 Cr.P.C., has not recorded any specific finding as to whether or not the evidence adduced under section 319 Cr.P.C. If unrebutted, would be sufficient to record a conviction against the petitioners. In absence of such finding, the impugned order can not be sustained.
For the reasons discussed above, the revision is allowed.
The impugned order dated 09.02.2010 is set aside. The matter is remanded to the learned trial court to reconsider the application under section 319 Cr.P.C. In the light of the aforesaid observations and pass an appropriate order in accordance with law expeditiously.
(Arvind Kumar Tripathi-II,J)
Order Date :- 31.08.2012.
v.k.updh.
