Allahabad High Court
Manzoor vs State Of U.P. Thru. Prin. Secy. ... on 22 March, 2023
Bench: Ajai Kumar Srivastava-I
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 15
Case :- APPLICATION U/S 482 No. - 2644 of 2023
Applicant :- Manzoor
Opposite Party :- State Of U.P. Thru. Prin. Secy. Lko. And Another
Counsel for Applicant :- Karunakar Srivastava
Counsel for Opposite Party :- G.A.
Hon'ble Ajai Kumar Srivastava-I,J.
Heard Sri Karunakar Srivastava, learned counsel for the applicant and Sri Arvind Kumar Pandey, learned A.G.A. for the State.
The instant application has been filed by the applicant for quashing the summoning order dated 03.02.2023 passed by learned Sessions Judge, Shrawasti in Case Crime No.136 of 2021, under Sections 323, 308, 504 I.P.C., Police Station Malhipur, District Shrawasti by means of which the applicant has been summoned in a very mechanical manner without considering the facts and circumstances of the case.
It is submitted by learned counsel for the applicant that there was civil dispute between the applicant and opposite party no.2. His further submission is that initially an NCR was lodged against the applicant and other co-accused persons under Sections 323, 504 I.P.C. Subsequently, Section 308 I.P.C. came to be added in Case Crime No.136 of 2021.
It is also submitted by learned counsel for the applicant that during investigation, the statements of first informant, opposite party no.2 and several independent witnesses have been recorded in which they have stated that the applicant was not involved in the alleged incident and has been falsely implicated in this case. Thereafter, the applicant was exonerated and charge sheet came to be filed against the co-accused only. His next submission is that the learned trial court has summoned the applicant to stand trial for the offences under Sections 323, 308, 504 I.P.C. on an application moved under Section 319 Cr.P.C. by the first informant, on the basis of statement of eye-witness, namely Naimuddin and first informant, namely, Jakir.
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. and learned counsel for opposite party no.2 have opposed the submission advanced by learned counsel for the applicants and have submitted that the impugned summoning order dated 03.02.2023 has came to be passed on the basis of statements of eye-witness, namely Naimuddin and first informant, Jakir. 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."
Having heard learned counsel for the applicant, learned A.G.A. for the State and upon perusal of the record, this Court finds that initially an NCR was lodged against the applicant and other co-accused persons under Sections 323, 504 I.P.C. Subsequently, Section 308 I.P.C. came to be added in Case Crime No.136 of 2021. Thereafter, the applicant was exonerated and charge sheet came to be filed against the co-accused only on the basis of statements of the independent witnesses. The applicant has been summoned under Section 319 Cr.P.C. on an application moved by the first informant and in view of the fact that P.W.-1, first informant/injured, Jakir and P.W.-2, Naimuddin have clearly stated that on the date of incident, the present applicant also assaulted the first informant and this incident was witnessed by P.W.-2, Naimuddin. It is settled legal position that the finding of guilt against an accused can be recorded on the basis of sole reliable testimony of a witness.
Having regard to the aforesaid overall facts and circumstances of the case, this Court does not find any illegality, material irregularity or perversity in the impugned order dated 03.02.2023, therefore, the instant application lacks merit and deserves to be dismissed.
However, it is needless to mention that if the applicant applies for grant of bail, the court below shall consider and decide the same expeditiously, in accordance with law laid down by the Hon'ble Supreme Court in Satender Kumar Antill vs. Central Bureau of Investigation and others reported in MANU/SC/1024/ 2021.
With the aforesaid observations, the instant application is finally disposed of.
Order Date :- 22.3.2023
Mahesh
