Court No. - 67
Case :- APPLICATION U/S 482 No. - 46740 of 2019
Applicant :- Smt. Ramkumari @ Mithilesh Opposite Party :- State of U.P. and Another Counsel for Applicant :- Dinesh Kumar Singh Counsel for Opposite Party :- G.A.
Hon'ble Rahul Chaturvedi,J.
Heard learned counsel for the applicant as well as learned A.G.A. for the State and perused the record.
The instant application has been filed to set-aside the order dated 15.11.2019 passed by Additional District and Sessions Judge/Special Judge, SC/ST Act, Hamirpur in application being paper no.26Ka, under sections 319 Cr.P.C. in Sessions Trial No.47 of 2018(State Vs. Neelu@Rahul Dwivedi and others) arising out of case crime no.52 of 2018 under sections 504 and 506 IPC and Section 3(1) Da/Dha of SC/ST Act, Police Station-Rath, District-Hamirpur.
Learned counsel for the applicant submits that the applicant is though named in the FIR but during the course of investigation, his complicity was found false and consequently, the name of the applicant was dropped in the report under section 173(2) Cr.P.C. Thereafter, in S.T. No.47 of 2018, testimony of PW-1, Shyama Devi was recorded whereby she, in no uncertain terms, has stated that she has acquaintance with the accused mother Ram Kumari. There is no overt act has been attributed to her in commission of offence. Still, merely by taking the name, applicant has been summoned in exercise of power under section 319 Cr.P.C.
Learned counsel for the applicant has relied upon the latest judgement of Hon'ble Apex Court passed in the case of Sugreev Kumar Vs. State of Punjab and others MANU/SC/0389/2019 passed in Crl. Appeal No. 509 of 2018 arising out of SLP No. 9687 of 2018 with regard to the degree to satisfaction required to be invoked while exercising the power under section 319 Cr.P.C.
"95. At the time of taking cognizance, the court has to see whether a prima facie case is made out to proceed against the accused. Under Section 319 CrPC, though the test of prima facie case is the same, the degree of satisfaction that is required is much stricter. A two-Judge Bench of this Court in Vikas v. State of Rajasthan, held that on the objective satisfaction of the court a person may be "arrested" or "summoned", as the circumstances of the case may require, if it appears from the evidence that any such person not being the accused has committed an offence for which such person could be tried together with the already arraigned accused persons.
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.
Learned counsel for the applicant has further drawn the attention of the Court to para-12 of the above judgement:
12. Provision contained in section 319 Cr.P.C. sanction the summoning of any person on the basis of any relevant evidence as available on record. However, it being a discretionary power and an extraordinary one,is to be exercised sparingly and only when cogent evidence is available. The prime facie opinion which is to be formed for exercise of his power requires stronger evidence than mere probability of complicity of a person. The test to be applied is the one which is more than a prime facie case as examined at the time of framing charge but not of satisfaction to be extent that the evidence, if goes uncontroverted, would lead to be conviction of the accused.
On this parameter, the name of the applicant has been taken without attributing any role in the commission of the alleged offence. The police has dropped the name of the applicant from the chargesheet. Learned counsel for the applicant has further relied upon the judgement of Hon'ble Supreme Court in the case of Periyasami and others Vs. S. Nallasamy, MANU/SC/0375/2019 decided on 14.3.2019 in Criminal Appeal No. 456 of 2019 arising out of SLP. No. 208 of 2019.
"The additional accused cannot be summoned under Section 319 of the Code in casual and cavalier manner in the absence of strong and cogent evidence. Under Section 319 of the Code additional accused can be summoned only if there is more than prima facie case as is required at the time of framing of charge but which is less than the satisfaction required at the time of conclusion of the trial convicting the accused."
Moreover, in the case of Brijendra Singh and others Vs. State of Rajasthan, (2017) SC 2839 decided on 27.04.2017, it has been stated that," Thus, the 'evidence' recorded during trial was nothing more than the statements which was already there under Section 161 Cr.P.C. recorded at the time of investigation of the case. No doubt, the trial court would be competent to exercise its power even on the basis of such statements recorded before it in examination-in-chief. However, in a case like the present where plethora of evidence was collected by the IO during investigation which suggested otherwise, the trial court was at least duty bound to look into the same while forming prima facie opinion and to see as to whether 'much stronger evidence than mere possibility of their (i.e. applicant) complicity has come on record".
I have perused the order impugned and I am of the considered opinion that the order passed by the Special Judge, SC/ST Act is dehors of the law laid down by Hon'ble the Apex Court in the aforesaid judgment. Thus, perusing the impugned order, I have got no hesitation to say that the impugned order is well short of the standard set up by Hon'ble Apex Court (as mentioned above) and the matter is remanded back to learned trial Judge with a direction to re-consider and re-visit the entire matter once again and decide the same in the light of the ratio laid down in the case of Hardeep Singh Vs. State of Punjab, 2014(3) SCC92; Brijendra Singh and others Vs. State of Rajasthan, (2017) SC 2839; Labhuji Bhai Amratji Thakor & others Vs. State of Gujrat, AIR 2019 SC 734; Periyasami and others Vs. S. Nallasamy, MANU/SC/0375/2019 and Sugreev Kumar Vs. State of Punjab and others MANU/SC/0389/2019 by passing a well reasoned order within a period of eight weeks from the date of production of certified copy of this order.
With the aforesaid observations, the present application stands disposed of.
Order Date :- 18.12.2019 Sumit S