Allahabad High Court
Nanhe Alias Nanhe Ali vs State Of U.P. Thru. Prin. Secy. ... on 3 April, 2023
Bench: Ajai Kumar Srivastava-I
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 15
Case :- APPLICATION U/S 482 No. - 2869 of 2023
Applicant :- Nanhe Alias Nanhe Ali
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Deptt. Lko. And Another
Counsel for Applicant :- Anurag Dwivedi,Katyayan Mishra
Counsel for Opposite Party :- G.A.
Hon'ble Ajai Kumar Srivastava-I,J.
Heard Sri Anurag Dwivedi, learned counsel for the applicant, Sri Alok Saran, learned A.G.A. for the State and perused the record.
In view of the order proposed to be passed, notice to the opposite party no.2 is dispensed with.
The instant application under Section 482 Cr.P.C. has been filed by the applicant for quashing the impugned summoning order dated 30.11.2022 passed in Sessions Trial No.169 of 2017, arising out of Case Crime No.331 of 2016, under Sections 147, 148, 149, 323, 504, 506, 307, 308, 427 I.P.C., Police Station Sandila, District Hardoi.
Learned counsel for the applicant has submitted that the innocent applicant has been falsely implicated in the present case. His further submission is that a false first information report came to be lodged against the present applicant. Upon conclusion of the investigation, no charge sheet came to be submitted against the present applicant as no credible evidence could be collected against him during investigation. However, during trial, an application under Section 319 Cr.P.C. was moved by the first informant and the Court below allowed the same vide impugned order dated 30.11.2022 and summoned the applicant for the offence punishable under Sections 147, 148, 149, 323, 504, 506, 307, 308, 427 I.P.C. to face trial.
Learned counsel for the applicant has also submitted that the law in respect of summoning any other accused person to face trial under Section 319 Cr.P.C. is clearly settled in view of law laid down by Hon'ble Supreme Court in Hardeep Singh vs. State of Punjab and others, (2014) 3 SCC 92 and Brijendra Singh v. State of Rajasthan, (2017) 7 SCC 706.
His further submission is that the impugned order does not record the kind of satisfaction, which is a condition precedent to summon an accused person under Section 319 Cr.P.C. as held by Hon'ble Supreme Court in Hardeep Singh (supra) and Brijendra Singh (supra), therefore, he submits that the impugned order is palpably illegal and deserves to be set aside.
Per contra, learned A.G.A. has opposed the aforesaid prayer made by learned counsel for the applicant by submitting that the learned trial Court has rightly entertained an application under Section 319 Cr.P.C. at the behest of first informant and being satisfied as to availability of sufficient material to proceed against the applicant under Sections 147, 148, 149, 323, 504, 506, 307, 308, 427 I.P.C. Thus, the present applicant has been summoned to face the trial. He therefore, submits that the instant application lacks merit and deserves to be dismissed.
The kind of satisfaction which is required to be recorded by the learned trial Court before summoning an accused person to face the trial in exercise of its power under Section 319 Cr.P.C. is stated in paragraph nos.105 & 106 of the judgment rendered by Hon'ble Supreme Court in the case of Hardeep Singh (supra), which are quoted below:-
"105. Power under Section 319 CrPC is a discretionary and an extraordinary 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.
106. 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 CrPC. In Section 319 CrPC 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 CrPC to form any opinion as to the guilt of the accused."
(emphasis supplied)
Having heard learned counsel for the applicant, learned A.G.A. for the State and upon perusal of the record, it transpires that the present applicant was named in the first information report. However, upon conclusion of the investigation, charge sheet has not been filed against the present applicant. However, by means of the impugned order dated 30.11.2022 passed by learned trial Court, the present applicant has been summoned to face trial under Sections 147, 148, 149, 323, 504, 506, 307, 308, 427 I.P.C.
Having regard to the aforesaid overall facts and circumstances of the case and upon close scrutiny of the impugned order dated 30.11.2022, this Court finds that the impugned order dated 30.11.2022 patently lacks in recording any satisfaction to the extent that the evidence against the present applicant, if goes unrebutted, would lead to his conviction. Accordingly, the impugned order dated 30.11.2022, to the above extent, suffers from illegality and deserves to be quashed and the same is hereby quashed with the direction to the learned trial Court concerned to pass an order afresh, after recording the satisfaction as aforesaid, expeditiously, in strict accordance with law.
With the aforesaid observations, the instant application is finally disposed of.
Order Date :- 3.4.2023
A.Dewal
