Smt. Sushila And Another vs State Of U.P. And Another
2015 Latest Caselaw 1122 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?A.F.R. 
 
Court No. - 40
 

 
Case :- CRIMINAL REVISION No. - 2327 of 2015
 

 
Revisionist :- Smt. Sushila And Another
 
Opposite Party :- State Of U.P. And Another
 
Counsel for Revisionist :- Rajeev Kumar Singh
 
Counsel for Opposite Party :- Govt.Advocate
 

 
Hon'ble Mrs. Vijay Lakshmi,J.

The instant revision has been preferred against the order dated 22.5.2015 passed by learned Additional Sessions Judge, Court No. 5, Deoria in S.T. No. 80 of 2012 (State Vs. Babban and others) whereby the learned Additional Sessions Judge while allowing the application moved by the prosecution under Section 319 Cr.P.C. has summoned the revisionists to face trial under Sections 323, 504, 325 and 308 I.P.C. alongwith other co-accused persons.

Heard learned counsel for the revisionists as well as learned A.G.A. on the point of admission and perused the record.

The submissions of learned counsel for the revisionist are that the court below has summoned the revisionists in a routine manner without application of its judicial mind. It has been next contended that the court below has not considered that there was no clinching and cogent evidence against the revisionists and only an observation that the revisionists have been found involved in the occurrence is not at all sufficient to invoke the extra ordinary power conferred under Section 319 Cr.P.C. Learned counsel for the revisionists has submitted that the Apex Court  in a catena of judgments has repeatedly held that the summoning under Section 319 Cr.P.C. stands on a different footing and it should be dealt with the higher standards by the courts,  sparingly and only if, compelling reasons exist for taking cognizance against the person other than accused.

On the aforesaid grounds, it has been prayed that the impugned order passed by the learned lower court without application of mind and without keeping in view the legal position, be set aside.

In support of his arguments, learned counsel for the revisionists 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.

Per contra learned AGA has opposed the prayer of the revisionists by submitting that after the decision, rendered by Constitution Bench of Hon'ble Apex Court in Hardeep Singh's case, the aforesaid case of Mohd. Shafi is no longer a good law. The revision is without any force and is liable to be dismissed at the admission stage itself. The learned A.G.A. has drawn the attention of this Court to the statements of the witnesses produced by the prosecution in this case and has contended that all the witnesses including the injured witnesses have named the revisionists in their statements, therefore, the court below has not committed any mistake by summoning the revisionists to face trial alongwith other co-accused persons.

Having heard learned counsel for the revisionists and learned A.G.A. and keeping in view the facts and circumstances of the case, this Court is  of the considered view that the instant revision is liable to be dismissed at the admission stage itself for the following reasons:-

A  Five Judges bench of Hon'ble Supreme Court in the case of Hardeep Singh vs. State of Punjab and others [2014 (1)JIC 539 (S C)] has set at rest the entire controversy with regard to the scope and extent of Section 319 Cr.P.C. which had arisen due to variety of views having been expressed by several High Courts and also by the Supreme Court. Noticing the conflicting views between the two judgements of the Hon'ble Supreme Court in the case of Rakesh vs. State of Haryana, 2001 (2) JIC 757 (SC) : AIR 2001 SC 2521; and Mohd. Shafi vs. Mohd. Rafiq & another, 2007 (2) JIC 490 (SC), a doubt was expressed about the correctness of Mohd. Shafi's case (supra) which led to the framing of following five questions by Constitutional Bench in Hardeep Singh case:-

1.What is the stage at which power under Section 319 Cr.P.C. can be exercised?

2.Whether the word "evidence" used in Section 319 (1) Cr.P.C. could only mean evidence tested by cross-examination or the Court can exercise the power under the said provision even on the basis of the statement made in the examination-in-chief of the witness concerned?

3.Whether the word "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?

4.What is the nature of the satisfaction required to invoke the power under Section 319 Cr.P.C. to arraign an accused? Whether the power under Section 319 (1) Cr.P.C. can be exercised only if the Court is satisfied that the accused summoned will in all likelihood convicted?

5.Does the power under Section 319 Cr.P.C. extend to persons not named in the FIR or named in the FIR but not charged or who have been discharged?

Question No. 2 and 4 are relevant for the present case.

Answering the aforesaid questions, the Hon'ble Constitutional Bench of Supreme Court expressed its clear view that neither cross-examination of witness is required before summoning an additional accused under section 319 Cr.P.C., nor any categorical finding to the affect that in all likelihood the person summoned may be convicted, is necessary before exercising such power. According to Hon'ble Apex Court:-

"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. Therefore, even on the basis of Examination-in-chief, the court can proceed against a person as long as the court is satisfied that the evidence appearing against such person prima facie necessitates bringing such person to face trial. In fact, Examination-in-Chief untested by cross-examination, undoubtedly in itself, is an evidence.

In view of the above, we hold that power under Section 319 Cr.P.C. can be exercised at the stage of completion of examination-in-chief and Court does not need to wait till the said evidence is tested on cross-examination.......There is no scope for the Court acting under Section 319 Cr.P.C. to form any opinion as to the guilt of the accused...........

Though under Section 319 (4) (b) Cr.P.C. the accused subsequently impleaded is to be treated as if he had been an accused when the Court initially took cognizance of the offence, the degree of satisfaction that will be required for summoning a person under Section 319 Cr.P.C. would be the same as for framing a charge."

In wake of the above cited legal position, there appears no substance in the arguments advanced by learned counsel for the revisionists that the revisionists have been wrongly summoned without cross-examination of witnesses and without any express view by the court below that there is likelihood of their conviction.

Therefore, the revision has no force and it is accordingly dismissed..

However, considering the submissions advanced by learned counsel for the revisionists, it is directed that in case the revisionists appear before the court concerned within thirty days from today and apply for bail, the same shall be heard and disposed of expeditiously  by the courts below in view of the settled law laid by the Seven Judges' decision of this Court in the case of Amrawati and another Vs. State of U.P. Reported in 2005 Cr.L.J. 755 and affirmed by Hon'ble Apex Court in 2009 (3) ADJ 322 (SC) Lal Kamlendra Pratap Singh Vs. State of U.P. The revisionists being ladies  are also entitled to the benefit of Section 437 Cr.P.C.

Order Date :- 10.7.2015

S.B.