Allahabad High Court
Shahajad And Others vs State Of U.P. Thru. Addl. Chief ... on 16 May, 2023
Bench: Ajai Kumar Srivastava-I
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2023:AHC-LKO:33881
Court No. - 15
Case :- APPLICATION U/S 482 No. - 4788 of 2023
Applicant :- Shahajad And Others
Opposite Party :- State Of U.P. Thru. Addl. Chief Secy. Home Lko. And Another
Counsel for Applicant :- Wali Nawaz Khan,Sheeran Mohiuddin Alavi
Counsel for Opposite Party :- G.A.
Hon'ble Ajai Kumar Srivastava-I,J.
1. Heard Sri S. M. Alavi and Sri Wali Nawaz Khan, learned counsel for the applicants, Sri Anurag Verma, learned A.G.A. for the State and perused the record.
2. In view of the order proposed to be passed, notice to the opposite party no.2 is dispensed with.
3. The instant application under Section 482 Cr.P.C. has been filed by the applicants for quashing the impugned order dated 07.11.2009 passed by learned Court of Additional District and Sessions Judge, FTC-1, Kheri in Sessions Trial No.171 of 2007 "State vs. Mohammad @ Mohd. Raza" whereby application under Section 319 Cr.P.C. filed by opposite party no.2 has been allowed and applicants have been summoned as accused in the impugned proceedings under Section 306 I.P.C. to face trial as well as the entire proceedings in Session Trial No.171 of 2007 "State vs. Mohammad @ Mohd. Raza" arising out of Case Crime No.25 of 2004, Police Station Sampurna Nagar, District Khiri, under Section 306 I.P.C. and also quashing the non-bailable warrant and process issued under Section 82 Cr.P.C. dated 06.03.2023 passed by learned Court of First Additional Sessions Judge, Lakhimpur Kheri in Sessions Trial No.171 of 2007 "State vs. Mohammad @ Mohd. Raza" arising out of Case Crime No.25 of 2004, Police Station Sampurna Nagar, District Khiri arising out of Case Crime No.25 of 2004, Police Station Sampurna Nagar, District Khiri.
4. Learned counsel for the applicants has submitted that the instant second petition came to be filed because of a new development i.e. acquittal of one of the co-accused on the basis of same set of evidence. His further submission is that the applicants herein came to be summoned for the offence under Section 306 I.P.C. to face trial in exercise of power under Section 319 Cr.P.C.. The applicants are named in the first information report. However, initially, no charge sheet came to be filed against them. It is also submitted by learned counsel for the applicants that co-accused, husband of the deceased, Mohammad @ Mohd. Raza was tried for offence under Section 306 I.P.C. and ultimately, by means of the judgment and order dated 06.08.2011 passed by Additional Sessions Judge, Court No.5, Lakhimpur Kheri, he came to be acquitted after having regard to the entire evidence made available by the prosecution. Therefore, he submits that summoning of the present applicants under Section 306 I.P.C. on the basis of an application moved under Section 319 Cr.P.C. and trial pursuant to the aforesaid summoning order would be nothing but an abuse of process of this Court.
5. Learned counsel for the applicants 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.
6. 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.
7. Per contra, learned A.G.A. has opposed the aforesaid prayer made by learned counsel for the applicants 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 applicants under Section 306 I.P.C. Thus, the present applicants have been summoned to face the trial. He therefore, submits that the instant application lacks merit and deserves to be dismissed.
8. 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)
9. Having heard learned counsel for the applicants, learned A.G.A. for the State and upon perusal of the record, it transpires that the present applicants were named in the first information report. However, upon conclusion of the investigation, charge sheet has not been filed against the present applicants. However, by means of the impugned order dated 07.11.2009 passed by learned trial Court, the present applicants have been summoned to face trial under Section 306 I.P.C.
10. Having regard to the aforesaid overall facts and circumstances of the case and upon close scrutiny of the impugned order dated 07.11.2009, this Court finds that the impugned order dated 07.11.2009 patently lacks in recording any satisfaction to the extent that the evidence against the present applicants, if goes unrebutted, would lead to his conviction. Accordingly, the impugned order dated 07.11.2009, 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 as laid down by Hon'ble Supreme Court in Hardeep Singh (supra).
11. With the aforesaid observations, the instant application is finally disposed of.
Order Date :- 16.5.2023
Mahesh
