Allahabad High Court
Jawahir Kasaudhan And 2 Others vs State Of U.P. And Another on 18 August, 2022
Bench: Shree Prakash Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 86
Case :- APPLICATION U/S 482 No. - 21397 of 2022
Applicant :- Jawahir Kasaudhan And 2 Others
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Manish Gupta,Vinay Kumar
Counsel for Opposite Party :- G.A.
Hon'ble Shree Prakash Singh,J.
Heard learned counsel for the applicants, learned A.G.A. for the State and perused the record.
Instant application has been filed with the prayer to set aside the Judgment and order dated 25.2.2021 passed by Additional District and Sessions Judge/Special Judge, E.C. Act, Gorakhpur arising out of Case Crime No.0090 of 2017 and Sessions Trial No.406 of 2017, State Vs. Sukarmani and others, under Section 304 I.P.C. Police Station Sikariganj, District Gorakhpur whereby the applicants have been summoned under Section 319 Cr.P.C. to face the aforesaid criminal case. Further prayer is to stay the further proceedings of the aforementioned case during the pendency of the instant application.
Learned counsel for the applicants submits that the court below, while passing the order dated 25.2.2021, did not record any finding and has summoned the applicants in a very casual and cavalier manner, thus, there is non-application of mind of the court below in passing the order dated 25.2.2021. Learned counsel for the applicant has also drawn attention of the Court towards page no. 111 of application wherein the order dated 25.2.2021 reads as under:-
"Heard & perused the statements of prosecution witnesses. Grounds are sufficient. Allowed."
Referring the aforesaid order dated 25.2.2021, counsel for the applicants submits that it is non-speaking order and has been passed in a very casual manner and without applying judicial mind. He also added that it is settled law that power under Section 319 Cr.P.C. is a discretionary and extra-ordinary power. It has to be exercised sparingly and only in those cases where the circumstances of the case so warrant. In support of his contention, he placed reliance on paras 98 and 99 of the Judgment of the Apex Court rendered in the case of Hardeep Singh & others Vs. State of Punjab and others, 2014 0 Supreme (SC) 27. Paras 98 and 99 read as under:-
"98. Power under Section 319 Cr.P.C. is a discretionary and an extra-ordinary power. It is to be exercised sparingly and only in those cases where the circumstances of the case so warrant. It is not to be exercised because the Magistrate or the Sessions Judge is of the opinion that some other person may also be guilty of committing that offence. Only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised and not in a casual and cavalier manner.
99. Thus, we hold that though only 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."
Referring the aforesaid Judgment, he has submitted that the Apex Court has held that the order under Section 319 can be passed where a strong and cogent evidence occurs against the person from the evidence placed before the Court. It has also been held that no order can be passed in a casual manner. He, thus, submits that the order, which is under challenge in the instant application, prima facie, has been passed against the settled law and, hence, the same is liable to be set aside.
On the other hand, learned counsel for the State has opposed the contention aforesaid and submitted that the order dated 25.2.2021 has been passed after considering the evidence on record and, as such, there is no illegality or perversity in the order impugned.
Having heard learned counsel for the parties and after perusal of record, I find that it is prima facie evident that the summoning order has been passed in a very casual manner and no reason has been assigned and further the evidence, which were led by the other side, was not discussed. Jurisdiction under Section 319 Cr.P.C. is a discretionary jurisdiction which is to be invoked sparingly. It has not to be exercised without thoroughly going into the material and evidences.
In view of the above, the Judgment and order dated 25.2.2021 passed by Additional District and Sessions Judge/Special Judge, E.C. Act, Gorakhpur arising out of Case Crime No.0090 of 2017 and Sessions Trial No.406 of 2017, State Vs. Sukarmani and others, under Section 304 I.P.C. Police Station Sikariganj, District Gorakhpur is hereby set aside.
The matter is remitted back to the court concerned to pass fresh order on application dated 25.2.2021 submitted by Sachidanand Singh-opposite party no.2.
With the aforesaid observations, instant application is disposed off.
Order Date :- 18.8.2022
Ram Murti
