Allahabad High Court
Laxmi Narain & Others vs State Of U.P. & Another on 7 August, 2014
Bench: Ranjana Pandya
HIGH COURT OF JUDICATURE AT ALLAHABAD
?AFR
Court No. - 14
Case :- CRIMINAL REVISION No. - 3495 of 2007
Revisionist :- Laxmi Narain & Others
Opposite Party :- State Of U.P. & Another
Counsel for Revisionist :- Piyush Narain Dubey
Counsel for Opposite Party :- Govt. Advocate,Ajay Kumar Chaurasia,Deepak Kumar Dwivedi,S.K.Mishra
Hon'ble Mrs. Ranjana Pandya,J.
Heard learned counsel for the revisionists, learned counsel for the opposite party No. 2 and learned AGA for the State.
Learned counsel for the revisionists has argued that the learned Judicial Magistrate has not passed the speaking order. He has not considered the evidence on record. The names of Luxmi Narain, Lala Ram and Anil have not found place in the statements even then the learned Judicial Magistrate has summoned Laxmi Narain, Prem, Kishan Devi, Lala Ram, Anil, Vishnu, Machala Devi and Vishna under section 319 Cr.P.C. by a cryptic order.
Learned AGA and learned counsel for the opposite party No.2 have supported the order impugned.
A perusal of the statement of Shankar shows that although he has named Vishnu Machala Devi, Prem, Kishan Devi, Vishna along with Pappu, Kallua, Ramesh and Mukesh but the names of Laxmi Narain, Lala Ram and Anil do not find place in the statement.
Learned counsel for the revisionists has placed reliance upon the judgment reported in 2014 (1) Crimes 133 (SC), Hardeep Singh vs. State of Punjab and others, in which it has been held that "a prima facie case is to be established from the evidence led before the court not necessarily tested on the anvil of Cross-Examination, it requires much stronger evidence than mere probability of his complicity. The test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction. In the absence of such satisfaction, the court should refrain from exercising power under Section 319 Cr.P.C. In Section 319 Cr.P.C. the purpose of providing if 'it appears from the evidence that any person not being the accused has committed any offence' is clear from the words "for which such person could be tried together with the accused." The words used are not 'for which such person could be convicted'. There is, therefore, no scope for the Court acting under Section 319 Cr.P.C. to form any opinion as to the guilt of the accused.
Q.(v) In what situations can the power under this section be exercised: Not named in FIR; Named in the FIR but not chargesheeted or has been discharged?"
Thus, although even on the basis of examination-in-chief, the accused can be summoned under section 319 Cr.P.C..
In the present case, even the names of the some of accused do not find place in the order as I have discussed earlier, the order impugned has been passed in a hurried manner without perusing the record. Therefore, the revision is liable to be allowed.
The revision is allowed and the order dated 28.09.2007 passed by the learned Judicial Magistrate, Agra in Case No. 93 of 2006, under sections 323, 325, 504, 506 IPC is hereby set aside.
The learned Magistrate shall reconsider the application under section 319 Cr.P.C. and after hearing the concerned parties, shall pass a fresh speaking order after perusing all the materials on record.
Order Date :- 7.8.2014
Sazia
