Harjit Singh And Another vs State Of U.P. And Another
2016 Latest Caselaw 5242 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 54
 

 
Case :- APPLICATION U/S 482 No. - 22930 of 2016
 

 
Applicant :- Harjit Singh And Another
 
Opposite Party :- State Of U.P. And Another
 
Counsel for Applicant :- Sandeep Tripathi,Atul Pandey
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Mrs. Vijay Lakshmi,J.

The applicants by means of this application under section 482 Cr.P.C. have prayed to quash the order dated 24.2.2016 passed by learned Additional Sessions Judge, Court No. 11, Saharanpur, in Criminal Revision No. 357 of 2014, confirming the order dated 21.5.2014 passed by the learned Special Judicial Magistrate, Court No. 28, Saharanpur, in Complaint Case No. 1913 of 2013, Hemant Kumar Vs. Narendra Singh, whereby, on the application moved by O.P. No. 2 under Section 319 Cr.P.C., the applicants have been summoned to face trial under Sections 504 and 506 I.P.C.

Heard learned counsel for the applicants and learned A.G.A. Perused the record.

Learned counsel for the applicants has contended that O.P. No. 2 filed a false Complaint Case No. 1913 of 2013, under sections 420, 323, 504, 506, 120B I.P.C. against the applicants and their sons. After examining the witnesses under sections 200 and 202 Cr.P.C. the learned Magistrate vide its order dated 23.2.2013, summoned only their sons. However, during trial when the complainant was examined and she stated against the applicants too, they were summoned under section 319 Cr.P.C. by the learned trial court vide impugned order dated 21.5.2014 to face trial under sections 504 and 506 I.P.C. along with the other co-accused. Against the aforesaid order dated 21.5.2014, the applicants filed Criminal Revision No. 357 of 2014 before the learned Additional Sessions Judge, Saharanpur, but the lower revisional court too, without keeping in view the fact that the applicants were not summoned in the complaint even though the allegations made in the application under section 319 Cr.P.C. and in the statements recorded under sections 200 and 202 Cr.P.C., were almost the same, mechanically dismissed the revision by the impugned order dated 24.2.2016.

On the aforesaid grounds the learned counsel has prayed to quash both the orders passed by the courts below.

In support of his arguments, learned counsel for the applicants 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 applicants 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. This application is without any force and is liable to be dismissed. 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 applicants in their statements, therefore, the court below has not committed any mistake by summoning the applicants to face trial alongwith other co-accused persons.

Having heard learned counsel for the applicants 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 application is liable to be dismissed 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 judgments 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?

5. 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?

6. 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 applicants that the applicants 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.

Accordingly, this application is dismissed.

However, considering the submissions advanced by learned counsel for the applicants, it is directed that in case the applicants 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., 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.

Order Date :- 17.8.2016

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