Order on the Recall Application no.1 of 2020 Cause shown is sufficient. The order dated 21.07.2017 is recalled.
The recall application is accordingly allowed.
Order on the Application under Section 482 Cr.P.C.
Supplementary affidavit filed today is taken on record.
The present application has been filed on merits seeking quashing of the order dated 26.02.2005 passed by learned Sessions Judge, Bagpat in exercise of power under Section 319 Cr.P.C. in Sessions Trial No. 247 of 2003, State Vs. Om Pal and others, under Section 302 I.P.C., P.S. Chhaparauli, District Bagpat.
The facts in brief are that the first information report was lodged on 05.03.2003 by the opposite party no.2 wherein it was alleged that one boy Vikas resident of Jiwani had come to the village and one of the boy name Pratap informed the complainant that he was the friend of Pradeep and while he was coming to attend the marriage with Pradeep some unknown persons killed the Pradeep by firing a gunshot. On the basis of said information an FIR was lodged under Section 302 I.P.C against unknown persons.
On 12.03.2003 after a lapse of about eight days a written report was given by one Sahdeo, father of the deceased stating that his son was a pillion rider on the motor cycle, which was being driven by the Pratap and was assaulted by one Neeraj @ Billu ( applicant herein) and his friend. It was further informed that Sahdeo received this information from Jogendra s/o Hardan and Jasveer s/o Hardan allegedly the eye-witnesses of the said incident.
During the course of the investigation the statement of said Jogendra was also got recorded under Section 161 Cr.P.C in which he took the name of the applicant herein i.e. Neeraj @ Billu. Although no role of applicant was specified therein.
During the course of the investigation the statement of Pratap, who was driving the motor cycle on which the deceased was sitting, recorded under Section 161 Cr.P.C. in which he categorically stated that he could recognise the person who had fired, and when the photograph of the applicant was shown to him, he specifically deposed that this was not the person. Thereafter, the I.O. had submitted the charge-sheet wherein the applicant was not named as an accused.
During the course of the trial an application was filed by the DGC criminal before the Court concerned alleging that in view of the specific statement of Jogendra recorded under Section 161 Cr.P.C., Neeraj ought to have been included in the list of accused. He had been wrongly dropped and thus prayed before the Court to summon the applicant under Section 319 Cr.P.C.
The Court concerned on the said application, after referring the statement of Jogendra under Section 161 Cr.P.C. proceeded to summon the applicant in exercise of power under Section 319 Cr.P.C.. The said order is impugned in the present application.
Heard Shri Garuav Kakkar, learned counsel for the applicant and learned AGA for the State.
Shri Gaurav Kakkar, learned counsel for the applicant argues that the court below has erred in summoning the applicant on the application filed by the State and has thus acted with material irregularity. He has placed reliance on the judgment of the Supreme Court in the case of Labhuji Amratji Thakor & Others Vs. The State of Gujrat & Another (Criminal Appeal No.1349 of 2018) decided on November 13, 2018 and argued that for exercise of power under Section 319 Cr.P.C. it is essential that the court comes to a conclusion that the evidence is so strong that the person can be convicted on the basis of the said evidence. Whereas in the present case, in view of the statement of Pratap, there was no material before the Court to summon the applicant in exercise of power under Section 319 Cr.P.C.
Shri Gaurav Kakkar, learned counsel for the applicant argues that the court has erred in summoning the applicant as the material before the court concerned was not strong enough to comes to a reasonable conclusion that the accused/applicant can be tried for the offence.
The Supreme Court in the case of Labhuji Amratji Thakor (Supra) considered the Constitution Bench judgment of the Supreme Court in the case of Hardeep Singh Vs. State of Punjab & Others (2014) 3 SCC 92 and in para 9 of the said judgment referred as under :
?9. The Constitution Bench has given a caution that power under Section 319 Cr.P.C. is a discretionary and extraordinary power, which should be exercised sparingly and only in those cases where the circumstances of the case so warrant. The crucial test, which has been laid down as noted above is ?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.? The present case is a case, where the trial court had rejected the application filed by the prosecution under Section 319 Cr.P.C.?
Thus, even in the judgment cited by the Gaurav Kakkar it is clear that the satisfaction has to be prima facie and to the extent that if the evidence as brought before the Court, if unrebutted, can lead to a conviction.
The Court based upon the statement of Jogendra, proceeded to exercise its power under Section 319 Cr.P.C.. A perusal of the statement of Jogendra clearly established that the same, if unrebutted could lead to conviction. Thus, no material irregularity has been committed by the court concerned in passing the order impugned in the present application.
The present application is thus liable to be dismissed and it is accordingly dismissed. However, the applicant is granted time upto 29.01.2021 to surrender before the court concerned.
Order Date :- 11.1.2021 pks