Allahabad High Court
Smt. Mariya vs State Of U.P. And Another on 16 August, 2023
Bench: Deepak Verma
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:164153
Court No. - 89
Case :- APPLICATION U/S 482 No. - 29751 of 2023
Applicant :- Smt. Mariya
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Rakesh Dubey
Counsel for Opposite Party :- G.A.
Hon'ble Deepak Verma,J.
1. Heard Sri Rakesh Dubey, learned counsel for the applicant and learned AGA for the State.
2. The present 482 Cr.P.C. application has been filed to quash the impugned summoning order dated 17.01.2022 passed by Addl. District and Sessions Judge, FTC-I, Mathura in Sessions Trial No.615 of 2021, arising out of Case Crime No.389 of 2020, under Sections 328, 376, 120-B I.P.C., P.S. Govind Nagar, District Mathura.
3. Brief facts of the case is that informant lodged FIR as Case Crime No.389 of 2020, under Sections 376, 328, 506 I.P.C. at Police Station Govind Nagar, District Mathura against the accused-Durgesh. The police investigated the offence and recorded the statement of victim under Section 161 Cr.P.C. and submitted charge-sheet against the accused-Durgesh. Counsel for the applicant submits that order dated 17.01.2022 for summoning under Section 319 Cr.P.C. by trial court is without jurisdiction and without recording any cogent reason against the applicant only on, prima facie, satisfaction has summoned the applicant. Applicant's counsel, in support of his contention, has placed reliance over the Apex Court's Judgment passed in the case of Naveen Vs. State of Haryana and others in relevant paras 11 and 12 that Court must be go beyond prima facie satisfaction and after coming to the cogent evidence found against the applicant then accused be summoned. There is no evidence under Section 328 and 376 against the applicant and learned trial court without considering the relevant points, summoned the accused applicant in the present case. Investigating Officer had not collected any evidence against the applicant and exonerated applicant from police report.
4. Per contra, learned A.G.A. submits that from statement of P.W. 1 and P.W. 2, the applicant complicity found and P.W. 1 and P.W. 2 have made specific allegation against the applicant and the trial court after considering the statement of P.W. 1 and P.W. 2, has summoned the accused applicant.
5. Considering the scope and ambit of Section 319 Cr.P.C. has been well settled by the Constitution Bench of this Court in Hardeep Singh v. State of Punjab and others and paras 105 and 106, which are relevant for the purpose are reproduced hereunder:
"105. 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.
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 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."
6. Considering the argument raised by counsel for the parties, perused the entire record and order passed on 17.01.2022, it is evident that prima facie offence under the alleged sections is made out against the applicant and trial court has rightly summoned the applicant. P.W. 1 and P.W. 2 in her statement fairly deposed against the applicant of involvement in the present case. From perusal of FIR, it is evident that informant disclose the name of the applicant in FIR, thereafter, it disclose the name of the applicant in the statement recorded under Section 164 Cr.P.C., thereafter in her deposition before trial she has specifically stated that applicant has prepared obscene video and gave toxic substance to the victim through cold drink. From these statement complicity of the applicant cannot be ruled out and applicant was rightly summoned by the trial court. The impugned order dated 17.01.2022 passed by trial court is just and proper and do not suffer from any illegality or infirmity and no interference is warranted, at this stage.
7. The present 482 application is dismissed with the aforesaid observation.
Order Date :- 16.8.2023
Nitin Verma
(Deepak Verma, J.)
