Karan Singh vs State Of U.P. And Others
2018 Latest Caselaw 2839 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?A.F.R. 
 
Court No. - 48
 

 
Case :- APPLICATION U/S 482 No. - 11499 of 2006
 

 
Applicant :- Karan Singh
 
Opposite Party :- State Of U.P. And Others
 
Counsel for Applicant :- C.S. Chaturvedei
 
Counsel for Opposite Party :- Govt. Advocate,R.C. Yadav
 

 
Hon'ble Karuna Nand Bajpayee,J.

This application under Section 482 of Cr.P.C. has been filed by the applicant with the prayer to set aside the impugned order dated 13.9.2006 passed by the learned Additional Sessions Judge, Court No. 5, Allahabad in S.T. No. 166 of 1999, State vs. Ram Chandra, under Sections 364/420 I.P.C. whereby the application moved under Section 319 of Cr.P.C. for summoning the opposite party no. 2 and 3 as additional accused has been rejected.

List has been revised. Learned counsel for the applicant is present along with learned A.G.A. Despite repeated calls none has appeared on behalf of the opposite party nos. 2 and 3 to oppose this application. No counter affidavit has been filed on behalf of the opposite party nos. 2 and 3. This application is of year 2006. In such circumstances this Court does not see any justification to further procrastinate the matter in the wake of heavy pendency of cases in this Court where dockets are already bursting on their seams. This Court, therefore, deems it fit to proceed in the matter on the basis of the record and with the assistance of the learned AGA representing the State.

Heard Sri Shiv Dutt Yadav, Advocate holding brief of learned counsel for the applicant and learned A.G.A. for the State. Perused the record.

Submission of learned counsel for the applicant is that the impugned order is bad in the eyes of fact and law both as there is ample evidence produced during the course of trial which could constitute a legitimate basis to summon the opposite party nos. 2 and 3 as additional accused to face trial. Further submission is that at the earlier point of time when additional accused were summoned on the basis of the evidence produced by the P.W.-1, the matter was remanded back by the High Court. But later on many other witnesses were produced in the court and the situation was altogether different when another application to summon the opposite party nos. 2 and 3 as additional accused was moved which has been wrongly rejected by the trial court. Submission is that it is a very serious matter in which kidnapped person namely Pramod Kumar @Pappu could not be traced out even till date. Both the opposite party no. 2 Vijay Kumar and the opposite party no. 3 Ram Lochan were arraigned as accused in the F.I.R. itself. P.W.-2 Santosh Kumar Yadav in his deposition before the court below clearly stated that on the date of incident when he was going to the field for taking bale of gram he had seen the kidnapped boy sitting in the middle of the motorcycle driven by the opposite party no. 3 Ram Lochan along with the opposite party no. 2 Vijay Kumar as pillion rider and at that time the opposite party no. 3 Ram Lochan had also told the co-accused Ramchandra to come to Manjhanpur where they were also going. The evidence as has been produced in the court below, specifically the evidence produced by the P.W.-2 Santosh Kumar Yadav clearly shows the complicity of the opposite party no. 2 Vijay Kumar and the opposite party no. 3 Ram Lochan as additional accused in the crime. Further contention is that the trial court appears to have discredited the evidence produced in the court on the ground of alleged omission of the names of additional accused in the statement given before the Investigating Officer. Submission is that the law on the point is very well settled. Even in the cases where final report has been submitted against certain accused persons, the trial court has all the powers to summon such persons as additional accused if the evidence produced before the court clearly establishes their complicity in the crime. In such circumstances the omission of name of additional accused during the course of investigation should not have been made the basis to discredit the evidence produced in the court which can alone constitute a legitimate basis to act upon on the point of deciding whether additional accused ought to be summoned to face trial or not. The material contained in the case diary is actually not very relevant in order to decide whether an additional accused ought to be summoned to face trial or not. Primarily it is the evidence produced in the trial court itself which is substantive evidence and which can alone constitute a legitimate basis to decide the summoning of additional accused. It has also been emphasized by the counsel that though the standard of sufficiency to decide whether an additional accused ought to be summoned or not is of a higher standard but that does not go to mean that the trial court should sit upon the judgement as if it is deciding on the point of innocence or guilt of the accused finally. The final adjudication at the time of delivering judgement of the case has to be based on different standards while on the point of deciding the summoning of additional accused a very different standard is required. Counsel has tried to take the Court through the entire evidence produced in the trial court and has tried to show that the evidence produced is definitely of the nature which must vindicate the summoning of additional accused to face trial and dropping of proceedings against them does not appear to be inconsonance with the evidence produced during the course of trial. It has been submitted that the law as has been settled by the constitution bench of the Supreme Court in the case of Hardeep Singh v. State of Punjab and others, (2014) 3 SCC 92 has not been rightly followed in this case.

I have considered the submissions made at the Bar and perused the record and the impugned order in the light of the same.

The law on the point of summoning the additional accused under Section 319 of Cr.P.C. is very well settled. The standard of sufficiency to justify the summoning of additional accused under Section 204 Cr.P.C. is of a different standard while the standard of sufficiency to justify the summoning of additional accused under Section 319 Cr.P.C. is of much higher standard. But definitely it is not the same rigour or strictness to be applied at this stage which is required to be applied at the time of finally deciding upon the point of innocence or guilt of the accused at the time of delivering of final judgement. The evidence as has been produced by the P.W.-2 Santosh Kumar Yadav is unambiguous and it is difficult to appreciate as to why the same has been ignored by the trial court just on the basis of some alleged omission contained in the case diary. Though ordinarily this Court does not substitute the discretion exercised by the trial court in ordinary circumstances but in the present case in the peculiar facts and circumstances and with the material available on record it appears that the discretion exercised by the trial court, has been injudiciously exercised and the law decided by the constitution bench of the Supreme Court in the case of Hardeep Singh (supra) has been wrongly applied. In the considered opinion of this Court the impugned order deserves to be set aside as the trial court has refused to summon the opposite party nos. 2 and 3 as additional accused even though there was ample evidence available to justify their summoning as additional accused in the case.

In this view of the matter, the impugned order stands set aside. The matter is remanded back to the trial court to re-consider the issue on the point of summoning of additional accused in the light of the observations made by this Court.

The application stands allowed in the aforesaid terms and conditions.

Order Date :- 26.9.2018

Naresh